Peacebuilding Compared: ‘Restorative justice, policing and insurgency: Learning from Pakistan’

December 31st, 2013

[THIS NON-CONDENSED ORIGINAL PAPER WAS RE-POSTED ON PEACEBUILDER ONLINE WITH PERMISSION OF THE AUTHORS]

REGNET RESEARCH PAPER

No. 2013/14

Peacebuilding Compared:  ‘Restorative justice, policing and insurgency: Learning from Pakistan’

[By] John Braithwaite and Ali Gohar

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RegNet Research Paper No. 2013/14

Restorative justice, policing and insurgency: Learning from Pakistan

John Braithwaite, Australian National University
Ali Gohar, Just Peace Initiatives
[Working Paper]

Citation

This paper can be cited as: Braithwaite, John and Gohar, Ali 2013, Restorative Justice, Policing and Insurgency: Learning from Pakistan, RegNet Research Paper No. 2013/14, Peacebuilding Compared, Regulatory Institutions Network, ANU

Abstract:

It is unwise to give a clear answer to the policy question of the prudence of restorative justice under the auspices of police. Restorative justice inside Pakistan police stations illustrates why only a contextual answer makes sense. On the basis of purely qualitative evidence, it is argued that this restorative justice program sustainably reduces revenge violence, makes a contribution to preventing Pakistan from spiraling into civil war and to assisting a police force with low legitimacy to become somewhat more accountable to local civil society. These contributions are limited but could be much more significant with modest donor support. Investment in human rights and gender awareness training can also help control the abuses that have occurred under this program by increasing accountability. The ruthless, murderous, divisive politics of policing and restorative justice in Pakistan seems a least likely case for deliberative democracy to work. In limited ways it does.

Keywords: Restorative justice, policing, insurgency, Pakistan

RESTORATIVE JUSTICE, POLICING AND INSURGENCY: LEARNING FROM PAKISTAN

John Braithwaite and Ali Gohar1

It is unwise to give a clear answer to the policy question of the prudence of restorative justice under the auspices of police. Restorative justice inside Pakistan police stations illustrates why only a contextual answer makes sense. On the basis of purely qualitative evidence, it is argued that this restorative justice program sustainably reduces revenge violence, makes a contribution to preventing Pakistan from spiraling into civil war and to assisting a police force with low legitimacy to become somewhat more accountable to local civil society. These contributions are limited but could be much more significant with modest donor support. Investment in human rights and gender awareness training can also help control the abuses that have occurred under this program by increasing accountability. The ruthless, murderous, divisive politics of policing and restorative justice in Pakistan seems a least likely case for deliberative democracy to work. In limited ways it does.

The Hoary History of Restorative Justice in Policing

In part, this work is about contests and synergies between state and non-state justice. First we consider a history of the contest in relation to restorative justice and state policing in the west, then in Pakistan. Then we consider seven propositions that assert a profound relevance of these debates to violence prevention and peacebuilding.

Debates in the restorative justice literature about the role of police in reform have not been as constructive as they might have. This had its origins in the Wagga Wagga police adaptations of New Zealand restorative conferencing led by Terry O’Connell and John McDonald of the NSW Police (Moore and O’Connell 1994). It was a contrast to the start in New Zealand where advocates of restorative justice included many leading judges, distinguished and persuasive ones. In Australia, the early leadership by comparatively junior police (who enjoyed only mixed support from police leaders) attracted strong opposition from judges and other legal elites, as well as from criminologists, who saw police leadership of restorative justice as dangerous, even a threat to the separation of powers. Narratives were asserted about differences between ‘the Wagga model’ and ‘the New Zealand model’ of restorative conferencing2 that were largely empirically false. They were misleading because they were penned by folk who never travelled to Wagga Wagga (nor
1 Our thanks to the Australian Research Council for funding of this research. 2 These were both Southern hemisphere moves from restorative justice as victim-offender mediation to more participatory meetings of two communities of care surrounding both the alleged offender and the victim.

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sometimes to New Zealand) to observe actual differences involved in the law in action.

The provenance of the standard narratives of difference between ‘the Wagga model’ and the ‘New Zealand model’ was the ideological debate over the appropriateness of police facilitation of conferences. The literature to this day is littered with empirical claims about these differences from these narratives. This is not how science is supposed to work; journal reviewers are supposed to demand that cites to empirical claims about different programs are based on empirical research observing those differences, not cites to like-minded scholars simply asserting them. It reflected the early immaturity of the restorative justice literature as social science and also an immature reform entrepreneurship politics of ‘my model is better than yours’.

For all of that, the serious players felt they had more important projects to advance than correcting inaccuracies in the characterizations of restorative justice models. This would be a worthwhile sociology of knowledge project for a graduate student in future. What was important to the development of restorative justice in the 1990s was to get advocates to stop sniping at their critics, and more importantly, to stop defending their starting models. They were only starting models of a promising reform agenda. Restorative justice advocates needed to become less defensive, responsive to critics, rather than circling the wagons to defend their programs. They needed to become more evidence-based about their failures, committed to adapting their models in light of critique, empirical evidence, practice experience and strategic conversations among the community of restorative justice reformers. To the credit of the social movement for restorative justice, it did transcend this early sniping in both the southern hemisphere and the north pretty well; it built a community of learning from mistakes and an evaluation community that refused to reify restorative justice as something static.

Standing back from those early debates, there was also much that was valuable in them. On the one side, there were advocates of a more fundamental sort who sounded valuable warnings about threats to restorative justice as a transformative movement from civil society in giving over too much leadership to as authoritarian an agency of the state as the police. There was also foresight in their critique as some years on the NSW Police Commissioner turned on the Wagga Wagga program, closed it and then later closed the NSW Police Restorative Justice Unit that was pioneering restorative justice in complaints against the police, in police cautioning, promoting restorative justice in schools, that had embraced and self-trained such great pioneers as O’Connell, McDonald, Peta Blood, Matt Casey and others. Perhaps the critics were right that police agencies are inhospitable soil in which to plant reforms that are about empowerment of civil society, that devolve power from the state. Perhaps indigenous critics were right that because of the shocking police history of oppression of indigenous communities, there were profound dangers in restorative justice under police auspices.

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On the other hand, British police leaders, such as Sir Charles Pollard, who did travel to Wagga Wagga and Canberra to observe the early Australian police- based models, pointed out that it was far too narrow a vision of restorative justice reform of criminal justice to see it as about diversion of cases from prosecution. We also need restorative justice reforms of police cautioning practices. When cautioning is done in an oppressive way, it poses a threat to the rule of law and a risk of discriminatory justice that is oriented to retribution rather than to repair and community problem-solving. We need restorative justice reforms to corrections as well, and much more.

It could be the lesson of that history that while in the early stages of a reform movement one needs to fan embers of reform from whatever quarter they glow, it would be a tactical mistake to set out to replicate Australia’s experience and start out with police leadership. Yet it would also be a mistake to fail to encourage police to join restorative justice trainings led from civil society because police cautioning of others and community disciplining of police are massive, problematic and ineliminable facts of the criminal justice landscape that restorative principles should engage.

The Pakistan Policing Context

This article rejoins what we see as the productive part of this contest of ideas by considering a very different societal context from the western police who embraced restorative justice in Wagga Wagga, Thames Valley and the Royal Canadian Mounted Police. This is the Pakistan context of policing in a society racked by a Taliban insurgency, with some Al Qaeda participation. Crime and violence have increased very sharply according to Pakistan police statistics since the NATO invasion of Afghanistan in 2001 (Fasihuddin 2010:128), particularly in far Western Pakistan where the incidence of terrorist bombings since 2007 has been as high as anywhere in the world (Chandran 2013:57). An enforcement swamping crisis is part of the context of police interest in engaging the community and its traditions with taking over some of its caseload. We argue from the Pakistan experience that this context may imply a more prominent role for policing in a particular kind of hybrid state- indigenous restorative justice. This conclusion arises from a consideration of the idea that insurgencies like those of different Talibans have often been ‘organized rule of law movements’.3 Actually, there are seven steps to the argument we advance:

1. In rural spaces of many developing societies, there is an ideology of a shift from traditional non-state justice to a justice of state prosecutors and courts. In practice, this often delivers a rule of law vacuum, or slow, corrupt justice that leads rural citizens to long for a return of traditional justice.
2. Insurgents like the Taliban are assisted in seizing power by filling this rule of law vacuum with speedy justice that re-establishes order in a way that many rural people prefer (at least initially).

3 David Kilkullen used this expression at a lunch in Canberra of a book edited by Wilt Mason to which he contributed (Kilkullen 2011).

[p. 3]

3. Insurgents like the Taliban then consolidate the power they seize in areas under their control and seek to support the seizure of power in further rural domains by killing traditional justice providers (who can be more formidable competitors in rural spaces than state justice providers).
4. One response is for the state not only to compete with insurgent justice
by providing better access to less corrupt justice of its courts, but also by creating state-non-state justice hybridity that offers state protection to traditional justice. We discuss citizen-led reconciliation committees housed inside the walls4 of Pakistan police compounds as one interesting approach (Muslahathi Committees; Muslahathi means reconciliation in Arabic).
5. Hybridity between state and non-state justice can be designed to cover the human rights weaknesses of one with the strengths of the other. Again, the police station reconciliation committees in Pakistan are used to illustrate this possibility through state-non-state justice linkage. It can also mean more resilient state justice and more resilient traditional justice that are mutually enabling and both more able to compete with the courts of the insurgency.
6. The hybrid justice of Pakistan’s police station reconciliation committees
also, we argue, demonstrably reduce cycles of vengeance killings (which help drive spirals toward civil war).
7. This reform in Pakistan has experienced well-organized resistance from some elements of the legal profession, intellectuals, human rights and womens’ NGOs which invoke lessons similar to those we tentatively draw from the dangers of police leadership of restorative justice in the west. A reconciliation with these critics is needed that can create a space for state-non-state justice hybridity.

The main structure of this article is to consider in turn each of the above seven steps toward our conclusion. Since it is a paper about state and traditional justice hybrids, it first briefly summarizes the principal form of traditional justice in the regions of Pakistan that border Afghanistan where armed conflict abounds, Baluchistan, Khyber Pukhtoonkhawa and the Federally Administered Tribal Areas (FATA). In both the Pukhtoon belt and the Baluch lands, the Jirga is the principal traditional justice institution. Jirgas have not been crushed in Pakistan to anything like the degree they were in Afghanistan by decades of Soviet and Taliban control. The Soviets saw Jirgas as a local republicanism, a threat to their centralized state control. The Afghan Taliban saw them as a competitor to their Taliban Courts. The Taliban in both Afghanistan and Pakistan were and are about shifting power from traditional elders to religious leaders (Imams/Mullahs).

Jirgas; Muslahathi Committees as Jirga Hybrids

When a Jirga is called it is often a large meeting where participants gather in a circle. While there have been places in space and time when female leaders

4 Police stations in the conflict areas of Pakistan are surrounded by high walls, usually with towers for the placement of machine guns.

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have participated prominently in Jirgas, this is rare. All males of the locality are able to participate; men more active in public life tend to make their way to sit in the front row of the circle; those less concerned or vocal tend to sit or stand at the rear. A group who are recognized as unusually respected elders settle the final decision. In the Pukhtoon belt Jirgas are held in the Hujra, usually a building or part of a building that is a kind of community club in a village. Volunteerism is a core principle of the Jirga, though at its worst the institution is captured by powerful men who extract exploitative fees from disputants. The Jirga ideal, however, is of leaders who serve the community and are guests of God. So to spurn the decision of a Jirga is to risk the wrath of God.

The spirituality of the Jirga is a mix of Islamic and tribal traditions. The Jirga shares much in common with the pre-Islamic Semitic restorative justice institution, the Sulha, which was practiced by Muslims, Jews and Christians in Palestine and across the Middle East (Fasihuddin 2010: 126). Like restorative justice, the Jirga tradition is about solving a problem through the direct participation of parties on different sides of a crime or conflict and then restoring relationships among those parties through reparations and reconciliation. Forgiveness has a more central role, the expectation to forgive is much stronger, in Jirgas than in western restorative justice. During our 2013 fieldwork more than one person said ‘You Westerners believe in forgive but don’t forget, we believe in forgive and forget’. When fifteen different Muslahathi Committee members and disputants from different locales were asked, ‘How often do the victims forgive offenders who have committed serious crimes like murder’, answers ranged from ‘the majority of cases’ to ‘always’, with most saying 80 or 90 per cent of cases. Jirga justice is usually speedy. Most cases are settled in a few days.

One option for parties in conflict is for the Jirga members to take waaq (power of decision making) from both sides to make a decision. Once waaq is taken, the decision made by the Jirga according to custom is binding. The parties have no right to refuse the decision of the Jirga in traditional law after waaq, though state law gives them that right. In traditional law, disputants have the right to refuse to give waaq. Then they are given the option in FATA and some other Pukhtoon tribal areas of whether they want the case to be decided according to Sharia law or Pukhtoonwali (customary tribal law). Or they can forget the Jirga if they want and go to the state’s courts instead. Or for more minor issues (but not serious ones like murder) they can opt for Maraka. With Maraka, parties to a conflict select one or two representatives from both sides to resolve an issue ‘according to the prevailing traditions and needs of the families’ caught up in the conflict (Gohar 2012: 55). Within the Jirga process, disputants are empowered to say that they have lost confidence in the Jirga members as fair or honest or competent. There is an obligation to respond to this by adding new members to the Jirga of the choosing of both sides of the dispute to break the roadblock.

So the Jirga is a more deeply legally pluralist institution than restorative justice or state justice in other parts of the globe. There are many layers to this pluralism. First the parties are asked who they wish to be the decision making

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members of the Jirga and agree on a composition with the other side. Later they can change this view and add new members. They decide whether their Jirga will be binding or whether they can walk away and ask for another Jirga later. Then they can opt for Sharia Law or customary law (which most do because they do not fully understand Sharia law). Or they can opt for the police station reconciliation committees, or the courts.

The police station reconciliation committees in Pukhtoon areas are less radically pluralist and more of a hybrid of Pukhtoon customary law, Sharia law, restorative justice principles and state law in which state law is intended to be a trump in any fundamental matter of rights. Even so, a kind of pluralism operates within that context as well. So a Sikh minority member appearing at a Muslahathi Committee can and does argue that while she is supportive of restorative justice principles, of the rights principles in state law and of local Jirga customs that have been accepted by her since birth as relevant to the regulation of her life, she can object to the application of some Sharia principle because she is a Sikh. This is a strength of the police station hybrid; it can give more recognition to Sikh principles of justice than does the state law of the Islamic Republic of Pakistan or even of Pukhtoonwali. All societies have deep divides over conceptions of justice such as one sees in Pakistan between tribal traditionalists and urban liberal modernists, between Suni and Shia, Sikhs and the Christian minority. The philosophical possibility that legal pluralist justice hybrids open up when people of different faiths disagree in a Jirga or a police station reconciliation committee is precisely that discussed by John Dryzek in advancing the deliberative democratic solutions of ‘discursive representation’ and ‘workable agreements’.

There is however a particular kind of selection that is especially appropriate for deliberating plural conceptions of justice. If different conceptions of justice are backed by different discourses (e.g. market liberalism, capabilities, social liberalism, social democracy, organic conservatism, religions of various sorts), then what is needed in order that each conception may enter fully and fairly into deliberation is discursive representation (Dryzek and Niemeyer 2008). The basic idea of discursive representation is that representatives are chosen by virtue of their capacity to represent a particular discourse (Dryzek 2013).

Concerning how deliberation should produce outcomes, Crocker (2008:325) endorses Sunstein’s (1995) idea of an incompletely theorized agreement.5 This is a staple of deliberative thinking, called by Eriksen (1994) a ‘workable agreement’. The idea of a workable agreement is that participants can agree on a course of action, but not the reasons for it. What distinguishes it from a mere compromise is that participants
recognize and accept the legitimacy of the values that they do not share with other participants (Dryzek 2013).
5 Under incompletely theorized agreement people settle on an agreement, but for philosophically incompatible reasons. Without practical agreement grounded in theoretical disagreement, peace and progress with tolerance are impossible.

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As usual, justice practice proves to be ahead of political theory in the circumstances where the realization of justice is maximally challenging. Pluralized, hybridized Jirgas in the practices of justice institutions operating under the threat of the assassin’s bullet show how workable agreement can be workable. They show how inter-faith dialogue across deeply divided discourses of justice can be practically operative for helping people to live in peace. This is not to suggest that hybrid justice pluralism in Pakistan actually realizes this ideal in any widespread way. It does not. Our argument is that it provides an incipient instantiation of this possibility that merits refinement, human rights audit, donor support and scholarly analysis and critique. Bold innovations for tackling wicked problems are never born whole. This one certainly is not.

Checks and balances of the types familiar to westerners from republican political thought are important for countering abuses of power. Yet it may be that leadership toward more deliberative democracy from within tribal traditions is the way that deep change can occur to the abuses of power that concern us most, such as honour killings. Here is a case study recounted by a Pukhtoon elder to Ali Gohar from the time before honour killings were specifically declared illegal by state law:

One day I passed by the village Hujra where there was big gathering. After my greeting and salaam, I asked what’s going on as it is general practice to ask if you see an extraordinary gathering in a Hujra to join them even as a stranger. A man replied toor (honor case) is going on to be settled by Jirga. Honor crimes were very rare because the code, Hujra and jirga were very strong at that time. Jirga procedure was in progress and the man and woman involved in the adultery were both brought to be killed as per the jirga decision. When the man took a rifle to kill both, the girl asked for her last will to be expressed. But the jirga stopped her as women are not allowed to say anything who had already brought so much shame on the community and Hujra. But I being educated and knowledgeable of law and rules asked the Jirga that I am a guest, have no right to interfere in your decision but will because the girl is right by all means, traditionally, religiously and according to law. After a lot of arguments and my stand the jirga allowed the girl to speak. I went close to her and said ‘say what do you want; I am with you’. Before speaking anything she asked for a ladder to climb on the rooftop of Hujra. This was strange but I requested someone to bring a ladder and put it on the jirga building. The girl climbed on it followed by me. When she reached to the top, she raised her full voice and said: ‘Oh, women, girls of this village, don’t cry if some man wants to take your honor. My fault is that I cried and called to save my honor safely. Today I am also dying along with the perpetrator because I cried for help.’ She then asked me to come down and asked the Jirga to kill her. There was pin drop silence at the Hujra; I opened the discussion again inviting jirga to look in depth at what the girl is saying. Discussion started again and at the end it was decided that in such scenario women should be left

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while only man should be killed. That became law for rest of the area later on.6

Pukhtoon and Baluch society are male-dominated. The veil system for women is an obstacle for women coming forward and actively participating in the decision-making process of the Jirga (Gohar 2012: 54). Oppression of women by Jirgas has not been uncommon, as in Haripur, June 7, 2011, when a Jirga ordered a middle-aged woman to be dragged out of her home and forced to parade naked on the street as a punishment. Pakistan has not seen Afghanistan’s innovation with Women’s Jirgas and Women’s Shuras as a balance and interlocutor with traditional male dominated Jirgas and Shuras (Braithwaite and Wardak 2012; Wardak and Braithwaite 2012). This is an important deficit for Jirgas in Pakistan, not only on rights grounds. The evidence from the micro-sociology of restorative justice conferences is now that the most successful conferences have higher female to male ratios; the turning points of conferences are predominantly a result of emotion work by female participants (Rossner 2013). A police superintendent interviewed in Baluchistan who had had considerable experience of women participating in both Jirgas and Muslahathi Committees said that he found the participation of women often ‘softened the hearts of men’. One of the reasons we explore the Muslahathi Committee hybrid in this article is that it may be easier for rights institutions to demand that a justice institution that is a hybrid of indigenous custom and formal justice gradually increase its representation of women. This promise has been realized by Muslahathi Committees chaired by women outside the tribal areas, but never in tribal areas. Only a tiny proportion of the Muslahathi Committees in tribal areas have any female members.

In many cultural contexts the indigenous response to a proposal that women should be included on a Jirga is that this would not be a Jirga according to tribal tradition. Policy interveners from afar can find it more appropriate to respond by saying ‘Only you can judge what is necessary to retain the integrity of your culture. Just let me say when I was a child there were no female lawyers or police in my home city. In just one generation there are now many. There were also no female politicians, but in that case it was Pakistan who had its first female Prime Minister twenty years before Australia had its first one.’ One UN Women leader interviewed in Pakistan argued that being a lead participant in Jirga who the parties nominate as decision-making members is like being a lawyer in that the parties want to be represented by someone who will be effective in understanding their case or representing their side of the case. Therefore, programs to train women in how to take leadership in Jirgas and Muslahathi Committees, particularly training in key specializations like tribal and state land law, can result in gradually more women being chosen because of their expertise.

Rural rule of law vacuums and the Taliban

6 For a television play in Pushto written by Ali Gohar about this case, see https://docs.google.com/file/d/0B5QROAlAmy5jMzJGN3dtUkRlMk0/edit

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The rise of the violent jihadist group, Jamaat-ul-Mujahideen Bangladesh in the 2000s (ICG 2010; South Asian Terrorism Portal 2012) and the Afghan Taliban in Kandahar from 1995 (Braithwaite and Wardak 2012) fit Kilkullen’s interpretation of ‘armed rule of law movements’ seizing power. For example, the Taliban attained power in Kandahar because this was a province where a multitude of armed gangs controlled different parts of the countryside, raping women with impunity, shaking down farmers at one roadblock after another as they attempted to get their produce to markets. The Taliban were popular at first7 because they put an end to this, convening Sharia courts that delivered brutal Taliban justice. Kilkullen argues that insurgencies have built rural power bases in this way at least since civil war in ancient Greece (Kilkullen 2011). Throughout human history anarchic rule of law vacuums have attracted the most tyrannous forms of militarized power.

The Swat Valley in North-West Pakistan was like many remote rural parts of developing societies in that feudal forms of governance lingered much longer than in major cities and their hinterlands. Until 1969 in the Swat Valley justice was delivered by Pukhtoon Jirgas with appeals heard by the court of the feudal lord (Walai). This justice had its deficiencies, especially with regard to the rights of women, but it had the virtues of being speedy and was granted legitimacy by citizens. Governance reform in the Swat Valley from 1969 brought justice under the sway of state prosecutors and courts. This investment in statebuilding was hampered by embezzlement of funds provided for justice system development and routinized demands for corrupt payments in return for decisions by officers of the new system. Poor people also could not afford the fees of lawyers. Rural folk could no longer get vital matters like land disputes settled. This disrupted economic development. When frustrated litigants bribed court officials to get disputes settled in their favour, the other party often retaliated with vigilante violence. The substitution of violence for adjudication created an even more anarchic world which was even riper for picking by an insurgent group which could promise to restore order and uncorrupted courts. This is what the Pakistan Taliban did in the Swat Valley (Amin 2013:151; Hussain 2013:88-89). As the International Crisis Group (2013:5) put it: ‘Most accounts of militancy in Swat since 1994 identify public disenchantment with a sluggish justice system as the main catalyst’. A fundamental reason that revenge violence escalated in the Swat Valley to create a climate of disorder was that murder cases that formerly took 10 days to be adjudicated under the justice of the royal court now took 10 years, during which one revenge killing led to another. We must balance the books here by saying that in our research we were also told some stories of Jirgas protecting the most powerful landlords, of Jirgas forcing poor people to pay debts to wealthy businessmen that were accrued fraudulently. The Taliban also built popularity by then stepping in to sanction those landlords through their courts and to waive those fraudulently imposed debts of the poor.

7 A senior Pakistan police commander who provided four pages of comments on our draft could have been speaking of Afghanistan as well when he said (of Pakistan): ‘Insurgents initial impact of speedy justice was good, and welcomed by the people but later on it disappointed the people as it was brutal and against the Quran and Sunnah.’

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Insurgents expand control by killing Jirga leaders

In the Federally Administered Tribal Areas (FATA) where Pakistan borders Afghanistan, the Pakistan Taliban consolidated their power in areas under their control and sought to support the seizure of power in new rural domains by assassinating more than 700 maliks who convene and lead traditional jirgas. Jirgas are large public gatherings, and any big gathering in an area resisting surrender to full Taliban control is a magnet for suicide bombers. Hence, Talibanisation in Pakistan, as in Afghanistan, has sought to attack the authority of traditional village Jirgas

One good response is for the state to compete with insurgent justice by providing better access to less corrupt justice of its courts. A complementary possibility is to create state-non-state justice hybridity that offers state protection and encouragement to traditional justice. This means setting out to increase both access to the justice of the courts and access to traditional justice as a more legitimate response package to a rule of law vacuum than militant-led courts. This reform ideal is of a state justice that enables access to traditional justice and a traditional justice that enables access to state justice. It also means rethinking traditional justice as a check and balance on brutal and corrupted elements of state justice and state justice as a check and balance on brutal and corrupted elements of traditional justice (Forsyth 2011). Finally it means asking the simple question of what is actually working around here to give people some protection from violence and not throwing away such institutions.

A unique hybrid emerged in Pakistan as a follow-up by the head of the North- West Frontier Province (now Khyber Pukhtoonkhawa province) Police, Malik Naveed Khan, to his attendance at a United Nations Training Workshop on Restorative Justice in Japan in 2002. He followed up by organizing a conference on restorative justice of leading justice thinkers from across Pakistan, with heavy representation from the tribal regions of the country, and
foreign experts,8 in Peshawar in 2003. It was 2008 (following some
preliminary experimentation in 2006-7) before these conversations blossomed into a unique criminal justice innovation under the stewardship of Malik Naveed Khan, who for a decade was chief of the 53,000-strong Northwest Frontier Province Police that in 2008 became the police of the Khyber Pukhtoonkhawa Province.

8 The two authors of this article first met at that 2003 conference. John Braithwaite had also been one of the lecturers at the 2002 UNAFEI Restorative Justice training course, as was Kay Pranis and other restorative justice leaders. Braithwaite had no hand in the design of the Muslahathi Committees. Ali Gohar did. His NGO, Just Peace Initiatives (www.justpeaceint.org), collaborated with the Asia Foundation and the Australian High Commission in restorative justice training and program design for implementation of the Muslahathi Committee innovation.

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After an initial pilot in seven districts of Khyber Pukhtoonkhawa – Peshawar, Abbottabad, Mardan, Swabi, Nowshera, Haripur, and Mansehra – the program also spread to Baluchistan and in more limited ways in Punjab (24 police stations) and Sindh. Muslahathi Committees in these other provinces did not lean on Jirga traditions but on traditional justice institutions indigenous to those provinces, notably Punchayat, Fasilo and Kacheri

The United Nations Development Programme’s ‘Gender Justice through Muslahathi Anjuman’ project had been active in three of the pilot districts since 2006 (Abbottabad, Nowshera, and DIK). This program also included Jirga dispute resolution of a restorative kind. The objectives of Gender Justice through Muslahathi Anjuman were:

• To provide women victims of violence an alternative mechanism, whereby they can obtain gender justice;
• To build the capacity of Muslahathi Anjuman for dispensing gender- responsive justice;
• To enhance public engagement with utilization of the services of
Muslahathi Anjuman; and,
• To promote women’s awareness of their legal rights and men’s active participation in ending gender based violence.9

In addition:

Women Councillors’ Associations were to be facilitated to monitor the implementation of all Project [Muslahathi Committee] activities with regard to access to, participation in, and results of mediation for women. The Foundation believed that the incorporation of the WCAs into Project monitoring would add value to the Project in a unique way, by capitalizing on a resource the Foundation had helped facilitate under a related project (the Mainstreaming Women’s Effective Participation in Governance in NWFP Project) (Bhatti, Bakhsh and Khan 2010: 6).

These aspects of the Program were not sustained, largely failures. The WCA and the UNDP program (which achieved comparatively modest throughput – 647 cases resolved between 2006 and 2009 (Fasihuddin 2010:142) – at high cost) ceased to function when the local government system was suspended by the Federal and Provincial governments. Moreover, while many women were trained in restorative justice principles by Just Peace International, none of these women became Muslahathi Committee leaders in the pilot areas, though women do participate in Committees on a ‘needs basis’. District Police Officers can be criticized for failing to nominate women onto the Committees and failing to stand firm against male members who objected, as can the decision to leave all power on this in the hands of the District Police Officer (Fasihuddin 2010:133). Usually they appointed eight male leaders. Another failure in terms of the original pilot design was an intent to have the Provincial Human Rights Department engaged with monitoring the committees (similar

9 http://www.gjtmap.org/reports_documents/faq.pdf. Accessed March 16,
2010

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to the accountability envisaged by Wardak (2006) and the UNDP in Afghanistan). This did not happen. In general, however, the Asia Foundation evaluation of the Muslahathi Committees was extremely favourable across other evaluation criteria, notwithstanding the fact that it had to operate in an environment where there were many suicide bombings, car bombs, rocket firings, gunmen firing to put the project at risk, and millions of refugees and Internally Displaced Persons in the province. Record-keeping had its failings (see also Fasihuddin 2010 whose discussion includes willful misrepresentation of statistics for the 2008 year), but improved during the life of the pilot. A purpose-built room which was solely for the use of the Muslahathi Committee was constructed inside the walls of each police station. In particular, the Asia Foundation evaluation concluded:

The mediation process was found to be very fluent, inclusive, respectful of the parties, empathic to the vulnerable, marginalized and the weak, and far more preferred than its counterparts (Courts, Jirga and radical avenues) (Bhatti, Bakhsh and Khan 2010: 13).

MCs [Muslahathi Committees] are also seen as evolved and reformed forms of traditional Jirga. It is therefore important to keep that organic link alive . . .Two fundamental differences between MCs and Jirga are that the latter do not have direct voices of the weak (women & vulnerable, in particular); and two, there are power dynamics of Jirga. It is recommended that a brochure should be developed highlighting the cultural and traditional richness of Jirga which MCs have imbibed and legal and rights based concerns which MCs ensure but Jirga are likely to ignore (Bhatti, Bakhsh and Khan 2010: 18).
The Asia Foundation evaluation report recommended that Muslahathi Committees be scaled up to the entire province. This happened to the extent of more than 100 police stations in almost all Districts of the province and it spread in substantial ways to other provinces. Police statistics for Muslahathi Committees in Khyber Pukhtoonkhawa Province indicate receipt of 14,539 criminal complaints in 2012, of which 13,699 were resolved by the Committees, with 840 referred to court and 7,314 civil matters of which 7,314 were dealt with by the Committees, 603 referred to court. This is actually a sharp fall since a peak in the year after Malik Naveed Khan retired as Inspector General of Police (now the Provincial Police Officer), when 24,459 criminal matters and 10,324 civil complaints were received by the Muslahathi Committees in Khyber Pukhtoonkhawa . We have not been able to obtain statistics from other provinces on their throughput of Muslahathi Committee cases resolved. Bearing in mind normal levels of failure to record all cases handled informally by Committee members, this is a huge restorative justice program/hybrid by any international standard. We encountered cynicism about these police-promulgated statistics, however. It may be that some or many local police commanders inflate the recorded throughput of cases to make their district look good in terms of meeting program ambitions. Land disputes are the most common civil conflicts dealt with according to these official statistics, with business disputes (for example over unpaid debts that

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threaten violence in revenge) also very common. The criminal matters are more or less equally divided between violent offences (including many hundreds of murder, attempted murder and feud cases) and property offences. Publicity for the program says it deals with only minor offences. In fact it has dealt with many multi-million land disputes and frauds, hundreds of murders, though reconciliations in serious criminal matters are referred to court for approval. In this respect the massive recorded throughput of cases invites criticism of the police for allowing the program to spread its tentacles well beyond the minor offences intended in the initial policy design.

Hybridity and checks and balances on rights

State and non-state justice can be put in creative interaction to cover the human rights weaknesses of one with the strengths of the other. State-non- state justice linkage can also mean more resilient state justice and more resilient traditional justice. Both are thus more able to effectively compete with the courts of the insurgency. The promise of this possibility is evident in the early history of the police station reconciliation committees. Consider the criticism of traditional Pukhtoon Jirgas that in the past they frequently gave a young woman as a bride (Swara) in compensation and as a bridge to peace between warring families or clans. If Swara is proposed on a Muslahathi committee, the police officer who is always present was trained to assert their role as an agent of the rule of law to say that Swara is forbidden under both state law and Sharia law and is therefore unequivocally out of order for the Muslahathi Committee. The problem is that the initial training of police officers who specialize in attending Muslahathi Committees occurred six years ago and there has been no funding for this in recent years. So the gap between promise and reality with this check and balance is probably widening. The members of the Muslahathi Committee are mostly more powerful men than the police representative. The police officer must therefore be trained to be assertive in defending all the rights provided for in the law, assured that in defending the rights in Pakistan law that he or she will be backed up by police superiors who are more powerful than the Muslahathi Committee members. The problem that would worry western restorative justice advocates of police empowerment to check abuses of traditional justice in this way is that they might use it to insist on more punitive responses than are settled in the circle, in particular more jail time. This they are not trained to do. Rarely would they be so culturally foolish as to assert themselves in this way against the will of the elders. So this is not a significant problem in the Pakistan tribal context. Actually, it is not even a significant problem with police that attend restorative justice conferences in New Zealand, Australia and Canada.

What the police representative is trained to do in circumstances where there is evidence from either side of disquiet at the outcome is to remind the parties of their right to contest the decision of the Muslahathi Committee in the courts if they feel it is unjust. Again, renewed training of police officers is required to promote this kind of assertiveness on behalf of rights of access to the justice of the courts. Mind, not all the burden of checking and balancing on these rights matters rests with the police. Disputants are rarely supported by their own lawyers before Muslahathi Committees even on matters as serious as
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murder. However, it is common/usual for one of the members appointed by the District Police Officer to be a senior local representative of the legal profession. For example, when we visited the Abbottabad Muslahathi Committee both the President of the local Bar Association and another senior Bar Association office bearer were members. They were extremely sympathetic to the work of their committee, even though their association had been opposed initially. They saw it as helping restore credibility to the rule of law in their community. Abbottabad was where Osama bin Laden was killed and one of the 2002 Bali bombers captured in 2011. These legal notables also have a commercial interest in picking up some work when decisions are contested by the courts or sent for formal ratification by the court. More simply, in a hybrid rule of law institution they are listened to attentively both as respected elders but also as experts who contribute legal knowledge about human rights thresholds that must not be crossed. Another outsider who is there to check the rule of law in civil cases is the Patwari, who attends on a needs basis. The Patwari is a civil servant who is expert on land law, land registration and taxation and generally knowledgeable on civil law and business law. So we can conceive the Patwari as a horizontal check on the police officer failing to stand alone to meet his rule of law responsibilities, and the police officer as a check on the Patwari.

One quite important accountability that exists with Muslahathi Committees, but not with Jirgas, is a requirement to create an official record of each case, what was agreed, reasoning for the agreement in serious cases, accounting for monies paid in, and whether follow-up occurred. This is available to all members of the community on a register, at least in the well-managed Committees. Recording is particularly important to women’s groups for family law cases to assist with keeping track of men who marry and divorce women in different locales. Womens’ access to the records we saw is difficult in practical terms in many districts, however. Afghanistan’s experience with recording such informal justice case outcomes reports the same reluctance evident in Pakistan to create public records of private family matters (Wardak and Braithwaite 2013). In Afghanistan this is compounded by fear to record informally resolved criminal cases, in terror of arbitrary state punishment, sometimes politically motivated, coming in over the top of the informal resolution, something we have argued is not a widespread problem in Pakistan. Unlike this empirical experience from Pakistan, Afghanistan research also reports great resistance to record informally settled land disputes to avoid taxes, but most fundamentally to avoid the large bribes that normally must be paid to a judge to issue a land title order (Gaston et al 2013: 3,21; Wardak and Braithwaite 2013).

Slogans were also painted on the walls of Muslahathi Committee offices we visited advocating respect for human rights, something that is not part of traditional Jirgas. Of course, however, these limited measures backed by limited training (Fasihuddin 2010) have often allowed Muslahathi Committees to perpetrate abuses of human rights even worse than those of the Pakistan courts. Muslahathi committee members mostly keep silent on the issue of honor killing, which is common in Pakistan, failing their rights obligations. In Khyber Pukhtoonkhawa, honor killing is considered a family matter. Most
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honor crimes are not even reported to the police as family members and close relatives are involved. If a case is reported, perpetrators are mostly acquitted in the courts, which defer to processes of family reconciliation. Similarly in elopement cases, Muslahathi Committees shy away from interfering, especially in rural areas due to the strong Pukhtoon code and fear of falling into enmity with the parties. This is an area where Muslahathi Committees and Jirgas, come under heavy criticism from human rights activists and people from other parts of Pakistan.

Muslahathi Committees are institutions of deliberative justice in a local community. The deliberative democratic ideal goes beyond the notion of top- down checks and balances to the idea that state actors are also checked by citizens (Dryzek 2013; Braithwaite 2006). The problem with top-down accountability is that institutions like police forces are fish that rot from the head down. Arranging guardians in a hierarchy does not solve the ‘Who guards the guardians?’ problem. An n+1th order guardian is no solution to the corruption of an nth order guardian as soon as the n +1th order guardian is corrupted. Deliberative accountability responds to this challenge by organizing accountability in a circle where deliberative checks operate every which way upon all the organizational and individual actors involved. At times Muslahathi Committees have operated as an effective check on abuse of police power. In some cases the elders in the Muslahathi Committee have walked out on their District Police Officer because his police were shaking complainants down in cases coming before the Committee. Sometimes in small ways like demanding payment for fuel if they are to go out in a police vehicle to investigate a matter; in other cases in big ways. This created political problems for these police commanders locally and centrally that they had lost the confidence of a large group of the most respected leaders in their community.

Police Chief Malik Naveed Khan and political party leader Imran Khan have been supporters of the Muslahathi Committee because they see it as one of a suite of paths to community control over what is called ‘Thana culture’ in the Pakistan police – discrimination against the poor and women, torture, brutality and corruption – leading to terror of the police among the vulnerable. The ambition, so far realized in only small ways, is that Muslahathi Committees might civilize and civilianize the police by bringing civil society, human rights NGOs and lawyers into police stations when they are concerned about particular cases. Elders appointed to Muslahathi Committees usually have formidable local respect; when they raise concerns to senior police about how individuals are being treated, they do tend to be listened to. In this sense, the Muslahathi Committee functions like a de facto Community Visitors Program that we see in the regulatory architecture of some prisons systems, in nursing home regulation and other institutions capable of coercion behind closed doors.

It would be a mistake to see Muslahathi Committees as in all respects having richer checks and balances against abuse of power than traditional Jirgas. Consider domestic violence. A strength of the traditional Jirga as an institution based in the Hujra in the midst of the village (as opposed to behind the walls
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of the police station) is that neighbours are required according to the Puskhtoon code to enter a home from which they hear hitting or screaming and if necessary remove the assailant from the house. This creates a communal din often heard at the Hujra, or at least quickly reported to elders socializing in the Hujra at any time of day or evening. Elders bring men to the Hujra to tame and cool their emotions and listen to their story. Similarly women at home are approached by other women who listen to their stories. Female elders then share the woman’s story from the scene with Jirga members who discuss the matter and sometimes ask both the man and the woman and the elders who intervened all to attend the Jirga. After listening to both sides if the elders are not satisfied, they go back to the woman to listen to her one-on-one or through elderly women. They may then sanction a responsible party or parties, extract guarantees and agreement on what will be the consequence of breach of the guarantees, or send the case to the police and courts. Women may be advised to take refuge in the home of an elder. In other words, the Hujra permits proximity in space and time to check domestic violence that is audible to villagers but not from behind police station walls.

Most of the common types of cases of abuses that victimize women, such as these three from Ali Gohar’s files, could be dealt with just as well by a traditional Jirga or a Muslahathi Committee:

A women working for a humanitarian agency and the only bread earner of her family complained to her organization about sexual harassment by her supervisor. According to her organization the evidence she provided was unable to prove her allegation. She was advised by activists to persue the case in court and was promised legal and moral support. Soon it dawned upon her that this legal advice backfired and her alleged perpetrator sued her for a huge sum. Now she was all alone to fight the long battle and attend to her official duties in another city. Her opponent was financially and socially in a far better position and she felt very vulnerable and alone. During the height of despair she was guided to an ADR specialist who contacted the elders of the village to which the man belonged. The elders not only persuaded the accused man to take back his case but also took sureties from the man that ensured his distance from her. The elders also provided their surety to the woman that in case of any threat the sureties would be liquidated, the money would be paid to her and she would also be provided with all support that is mandatory on them under the code of Pukhtoonwali. This includes providing her with financial support, guarding her physically, standing by her and ensuring provision of justice to her. In Pukhtoon society due to the shame factor the whole village ensures the word and sureties provided by their elders. More than six months has passed and the woman is pursuing her career without any fear.

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A woman was married by her parents to a person in Punjab. At the time of marriage the husband posed as a bachelor though he was 55 years
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old, while the parents of the woman had told their daughter he was 25. After marriage she was shocked when she came to know that her husband was an old man already married with 5 children. She could not understand the language of her husband and his family. He started beating her almost every day after her marriage for her non-cooperation with his family members and with him. After some time, she was allowed to visit her parents. On getting information from her neighbors about the WFC [Women Facilitation Centre] she approached the WFC Swabi for support to resolve her problem. The WFC team constituted a Jirga of the local elders. The Jirga members negotiated the issue with both the parties who negotiated a divorce since the woman was deceived and did not want to continue the marriage. The husband told the Jirga that at the time of marriage the father of the bride had taken money for the marriage. If that money were returned to him he would accept divorce. The father of the woman told the Jirga that he had spent that money on dowry that was still in the custody of the husband. After lengthy negotiations the divorce was agreed. Now the woman lives happily with her parents. WFC staff conduct regular visits to her.

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The relations between a woman and her mother-in-law got strained after 6-7 months of her marriage. Her mother-in-law started blaming her character and making complaints to her son about her character.This led to differences between her and her husband. Her husband started torturing/beating her. One day her husband beat her with an iron so severely that she got senseless. Next day she was thrown at the doorsteps of her parents’ house by her husband. A Muslahathi Committee member of the area reported this case to the Women Facilitation Center (WFC) and narrated all the details of the case. WFC staff rushed to her house where they found her in very deplorable condition even she was unable to speak. The WFC team took her to government hospital and admitted her in the hospital for medical treatment. Her case was registered with the police with her consent by the WFC team. She was also provided legal support. The psychologist at the WFC provided counseling to the victim also held sessions with her mother-in-law. Her case was heard by the judicial officer and on a third hearing of the case the differences between the wife and husband were reconciled by the local elders. The husband submitted his repentance before the court on his inhuman and criminal act and assured the court that he will not repeat this mistake in future and will keep her happy. Now they are enjoying good marital life while the staff of the WFCs are still monitoring through regular visits to the family.
Reducing cycles of revenge violence

The hybrid justice of Pakistan’s police station reconciliation committees reduce cycles of vengeance killings, which are drivers of descent into civil

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war. Revenge is honorable and mandated in Pukhtoon culture. This is communicated in many ancient proverbs:

A Pukhtoon never forsakes revenge.

A stone of Pukhtoon (enmity) does not rot in water.

If a Pukhtoon takes his revenge after a hundred years, it is still too soon.

Pukhtoon culture differs from western cultures in the way shame operates. Shame is particularly acute for victims of crime and must be cancelled through revenge. The cultural belief is that shame persists for victims until it is equalized through revenge (Gohar 2012: 106-7). The shame of one victim in a society brings dishonor upon the whole tribe. Revenge (Badal) is viewed as a way of achieving justice; ‘[Badal] is not a privilege but a right and duty of a Pukhtoon’ (Yousufzai and Gohar 2012: 36). Culturally approved alternatives to revenge that are honourable are therefore important; the most important of these is the Jirga.

Here are some case studies of traditional Jirgas ending cycles of revenge or the risk of future renewed cycles from our research notes:

Both authors attended a Jirga at Sher Garh, in Mardan District just south of the Swat Valley in April 2013. Jirga members told us how in 2006 they had to deal with enmity between two villages in which 13 people were killed. Seven were killed in one village and six and the other. The villages were deserted. The Jirga appealed to them for peace and asked each to provide money on the table in the Jirga. Normally more blood money would be paid in from the side who had lost only six. But the side that lost seven suggested equal amounts as a sign of respect for the elders of the Jirga. If one side resumed violence, the money would be forfeited for the use of the Jirga to support projects in the community or for cases in which the poor needed financial help to be reconciled. Because murder allegations were before the courts, they asked the judge for permission to reconcile the feud. The judge granted permission and the feud was brought to an end. This Jirga had dealt with 80 murder cases in the memory of those present, all reconciled either with the murderer being released from prison or without the murderer being sent to prison.
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In a village of District Swabi Khyber Pukhtoonkhawa province, five people were killed after taunting by women to take revenge for a brother and nephew killed in old enmities. This kind of taunting is a common Pukhtoon scenario in prompting men to jump in to kill immediately. Two accused men were arrested after ten years of looking for them. The Session Court, High Court, and Supreme Court all affirmed the death penalty. A mercy petition was rejected by the president of Pakistan and a date was fixed for execution. People started to visit to farewell the men. I was also one of them. Meanwhile the Jirga started efforts to save

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them. After day and night struggle for more than a week, the Jirga reconciled the parties through Khuan Baha (blood money) to the victim’s family. A total of 7.5 million rupees, 1.5 per victim was decided. Such a huge sum was a big problem. The Jirga freed up money by selling some properties owned by the accused while the rest they contributed on their own (from the pockets of the Jirga members or the parties). The Jirga sent a letter to the President and Interior Ministry. The two condemned were released within a week. After reconciliation the victims pardoned the murderers again and took 5 million only. The money given by the Jirga members was refunded in installments within three years. The families now celebrate good and bad events together as one community (from Ali Gohar research files).
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Story of a Hindu Doctor from Batagram: When Taliban in Swat were very active, I received a phone call from Taliban asking for pre-kidnapping ransom. First I took it as a joke and avoided the caller but then I started receiving calls more frequently and the caller started demanding Rs 7 million. Later my relatives and friends also started receiving calls from the same caller so as to convince me that they meant business. . . I informed the elders of the Jirga about the issue. The Jirga of the areas was called in which all influential people from different tribes participated. A decision was taken that if something happened to me, the Jirga would act on my behalf not only to protect me but also to take revenge as per the prevailing custom and traditions of the Pukhtoon code. They also announced a warning to Taliban that if the caller was from their side, they were ready for any sort of encounter as the Jirga would not allow Taliban influence in Batagram area in any form and by any means. The Jirga also sent a message to the government agency to protect me and my family and provide me immediate security. Media was invited by the Jirga to highlight the issue and the decision of Jirga was announced and publicized in the media. Along with the security agencies, local Jirga also took upon themselves to share the burden of guarding my home, business office and other movable and immovable property. This gave a strong message to the people who were threatening me on phone. The phone calls stopped immediately and I am feeling safe now (Just Peace International 2012: 58-9).

Now we consider some case studies from our field notes of hybrid Muslahathi
Committees stopping vicious circles of violence begetting violence:

The Havelian Muslahathi Committee dealt with a case that they believed involved great risk of escalation to violence because men were being taunted for being so weak to allow the other party to take their land without fighting for it. The land at issue was extremely valuable (more than one billion rupees) and the disputes surrounding it had been before the courts for 60 years. On three occasions the parties had been to the Supreme Court over the land. In four meetings spread over one month the Muslahathi Committee settled this as a priority dispute because they believed it could lead to serious violence given the frustration of the

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parties. One of the parties got more of the land than the other. But both parties were pleased to have it settled without losing the lives of family members.
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The cycle of violence that was being settled on the day we visited the Havelian Muslahathi Committee in April 2013 involved a dispute over money. In order to recover what a family believed had been misappropriated from them, they stole a truck belonging to the other family. This was avenged by an attack in which the person who stole the truck was murdered. The murderer had been in prison awaiting trial for five months. For two and a half years the village Jirga had been attempting unsuccessfully to settle this dispute. They had found it too hot to handle. So the parties agreed to try the Muslahathi Committee. The committee negotiated with them on possible lines of a restorative settlement for many meetings over four months. Finally they had taken Waaq and the parties assured us that a firm framework of agreement was in place. So much so that the media were in attendance to take photographs and interview the parties about the terms of an agreement that would end a feud the community was concerned could spin out of control. The Committee members were very confident that because of the risk of violence the case posed, the murderer awaiting trial would be released on the order of the court with charges dropped against him. This was common. In fact we also met that day the parties to another case involving a cycle of violence in which two had been killed and one seriously injured over rights to collect money at a bus stand. A payment from one family of R 22,000 had been already agreed in this case and again there was a recommendation that a man who had already served two years in prison for murder would be released, which had been accepted by the court. They visited each other’s homes after they reconciled and broke bread.
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This was a recent case described to us by the Mirpur Muslahathi Committee in 2013. There were two tribes who had a claim over land that was being used by a famous public school. There was a big fight between the clans over who were the true owners. Ten to 15 people were injured in the battle with six suffering bullet wounds. This was a great danger to public health and safety. After an incident between tribes like this, any member of a tribe is justified and honour bound in the eyes of the community to kill a suitable person from the other tribe. The Committee successfully resolved the conflict. The violence between the two tribes has ended and the school had certainty in its planning.
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On a common way in a farm, two parties came into conflict. In the firing from both sides, a woman was killed. The case went to court, and the trial was continued for 8 years. The man accused was given 25 years imprisonment. A case at the Musahathi Committee Havealian District police station, Abbottabad saw elders go to the scene. Along with the revenue department, they measured the land in dispute and divided it as per government division and inheritance rights of the family. This opened a common way between properties owned by the government to

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be used by villagers. Then the committee members decided the case. The victim’s family paid in blood money of 5 million rupees. This was accepted by both parties and reconciliation took place. The final step was to get the man out of prison, which took more than three months of submissions to the court by the reconciliation committee. The story and reconciliation process was documented by television channels for the awareness of the public.

Cases like these, which are common as one moves from locale to locale, constitute a credible qualitative case that reconciliation committees of both kinds reduce violence capable of snatching many lives. Other cases described elsewhere in this article such as the Swat Valley IDP’s privacy invasion case discussed below that saw large scale fighting and burning of houses show how dangerous cycles of violence were ended through the wisdom of Muslahathi Committee members. This evidence of violence reduction is not as credible as a randomized controlled trial, a kind of research that would be quite an accomplishment in a conflict zone where the Taliban is operating! Yet in a tribal society where feuds escalate repeatedly among men who are routinely armed and crack shots, there is persuasiveness in this recurrent evidence of cases of terminating cycles where killing leads to more killing, where crime against women leads to murder to restore honour, cycling in turn to revenge killing. This kind of evidence is apiece with the English historical evidence that the institutionalization of courts in England made a large contribution to the massive drop in homicide rates after the fifteenth century. The historical record in England in the Middles Ages is of a land where revenge killings were rife, blood feuds endemic, where a road accident that led to serious injury could spiral to revenge killing. Tort law arrived to provide an alternative honourable path in adjudication and compensation to revenge killing. (Cooney 1997). It is worth noting here that early modern courts were in many ways more like contemporary Jirga than like late modern English courts. Until the nineteenth century English local courts were community gatherings with a more participatory, noisy and a less professionalized and formalized character than today’s courts as were rural courts in the United States as depicted in saloon courtroom scenes of the Hollywood western genre.

While many police are cynical about restorative justice, our interviews with police officers during this research also reinforced the interpretation that Muslahathi Committees can interrupt spirals of violence. One police commander said that in cases like fighting between two tribes, ‘we in the police used to just go in and arrest people’. In contrast, he said the Muslahathi Committee members would apply Pukhtoon principles of parachute diplomacy, dropping in as peacemakers between the two fighting groups, attempting to restore calm by offering to organize medical care, transit to hospital for the injured, offering to mediate. In a sense these village elders were teaching younger police officers about their own traditions of peacemaking in the process. At this point, a Muslahathi Committee member who was present said ‘We do, we have more patience. We cool down their emotions, listen, then dig out the root causes. Then the solution is easy when that is done patiently.’ The younger man, the senior police officer, nodded

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agreement.

In the tribal areas of Pakistan, common law courts do not work well in ending cycles of vengeance compared to participatory justice which can be effective because the justice solution is agreed to, owned, by victims who feel shame for not having taken revenge. In a participatory Jirga, their need for honour, for taking control of the dishonor that has been done to their family, is acknowledged. Tribal people in Pakistan tend to feel angry when their conflict is stolen from them (Christie 1977) by the courts. So it is a standard advice to the young in tribal areas to stay away from the entrance to prisons after 4 pm, because that is the hour prisoners who have completed their sentence are released. Gunning down unarmed prisoners at the moment of discharge from prison is common. This is one reason the courts almost always agree to decisions of Muslahathi Committees to ask for release of prisoners as part of their reconciliation agreement, including in cases of murderers who admit the crime to the Muslahathi Committee. Most judges recognize that their court does not have the capacity to deal with the root causes of a conflict, nor to accomplish reconciliation in the way Jirga-based approaches such as the Muslahathi Committee can.

There is compelling evidence from randomized controlled trials that Western restorative justice reduces the desire for vengeance among victims, thus reducing future crimes (Sherman and Strang 2011; Braithwaite 2002: 47). In conditions of an honour and revenge culture, these effects may be much more dramatic. Among the reasons an institution like the Muslahathi Committee can be effective in calming revenge is that it can draw upon a variety of deeply institutionalized anti-revenge norms that are part of the Jirga tradition. One is the Kanrai or Teega, a ceasefire/truce ritual (Gohar 2012: 67). This is about ‘parachute diplomacy’. Peacemaking Jirga members with white flags go between the fighting parties, even under heavy fire, often accompanied by women. These women attend with heavy symbolism, either without veils on their heads or carrying the Holy Koran in their hands. The Teega is represented by the laying down of a stone to solidify truce. Another relevant ancient institution is of the Asthazai or diplomat. Diplomats are given safe passage during a conflict. They carry messages between communities in conflict, learning traditions of language use that defuse tension and prepare the soil for further communication. Western historians tell us that institutionalized diplomacy is a Renaissance invention that spread from Venice (Mattingly 1955)..

Nanawaty is perhaps the most important of the ancient institutions for averting revenge. Nanawaty involves a combination of a repentance ritual and asylum. It means walking to the home of someone wronged or harmed with an attitude of humility, sorrow and apology, ‘giving space to the other person to respond with “grace”, so precious to Pukhto’ (Yousufzai and Gohar 2012: 32). If Nanawaty is granted, the perpetrator is granted asylum from revenge by the whole community, at least temporarily while a process of mediation of restitution, public apology and restoration of honour for both sides proceeds. Finally Puktoon tradition provides for a scaling up of the local Jirga to a Grand Jirga or Loya Jirga when conflict wracks an entire region or nation. For

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example, when all the tribal agencies of FATA get together to settle a big issue it is called a ‘Tribal Loya Jirga’.

As one sees in many parts of the globe, warlike cultures that put a strong emphasis on avenging honour are often also cultures that are gifted at peacemaking, providing institutionalized channels for peace. Bacha Khan is the most famous Pukhtoon peacemaker, leading a pre-Gandhian nonviolent struggle against British colonialism from 1910 that helped inspire Gandhi. His philosophy was to see both the violent and the nonviolent strands in his own culture, as in all cultures, and then to strengthen the nonviolent ones:

Is not the Pukhtoon amenable to love and reason? He will go with you to hell if you can win his heart, but you cannot force him even to go to heaven. Such is the power of love over the Pukhtoon (Bacha Khan quoted in Gohar 2012:141).

Bacha Khan developed principles to which his followers swore an oath. These included:

I promise to refrain from violence and from taking revenge.
I promise to forgive those who oppress me or treat me with cruelty. I promise to refrain from taking part in feuds and quarrels and from creating enmity.
I promise to devote at least two hours a day to social work [The
volunteerism that makes Jirgas work; Bacha Khan quoted in Gohar 2012: 142].

Tribal Baluchistan suffers from both a Taliban insurgency and a Baluch nationalist insurgency, from conflict between the two insurgencies and of both with the state. One point made in several interviews about the thousands of Baluch independence fighters in the mountains is that a large proportion of them are there to avenge a relative killed by the state or who has been arrested and ‘disappeared’. Responsiveness to Baluch culture therefore requires not only a top-down peace process that addresses structural root causes like expropriation of Baluch resources and discrimination against Baluch; it also requires many local Jirgas in which representatives of the state listen, pay blood money and apologise for killing specific relatives so that the individual fighter can honourably hand in his weapon and commit to peace. This is another traditional justice road to peace not yet taken.

Legitimacy challenges

The western author had a meeting with one of the largest western donors of rule of law work in Pakistan. He argued how unusual Muslahathi Committees had been in that they continued to operate years after funding had shut down. They survived totally on volunteer labour of the Committee members and of Just Peace Initiatives (who continue to provide unpaid assistance to Muslahathi Committees when requested). Committee members pay their own fuel and telephone bills for their volunteer work and pay for the food laid on after cases are resolved from their own pockets. As we have illustrated with

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case studies, it is also common for members to assist poorer perpetrators in cases of crime that come before them to pay recompense to their victims. One case we documented involved IDP’s who had lost everything after fleeing from the fighting between the army and Taliban in the Swat Valley. The local Jirga and Hujra hosted more than a hundred IDP’s in the Hujra and local homes. In one of these grossly overcrowded situations, people living in the ceiling of a home in Abbottabad District were peering down into the adjacent home, invading the privacy of women. Violence erupted. Homes were burnt down. Muslahathi Committee members provided building materials to Swat Valley IDP’s who could not pay for them to rebuild a house they had destroyed. They also joined the perpetrators in the building work and encouraged other community members from all sides to also assist. We were told of other cases where this had happened.10 So the western author’s argument to the aid official was that this had been aid with unusual sustainability as a result of this kind of volunteerism, the kind advocated by Bacha Khan’s principles. He emphasized that there were problems, nevertheless, as discussed in this article, from the absence of continuing investment in human rights and gender rights training for participants in the process.

The aid official’s response was to agree that she had visited Muslahathi Committees and was personally impressed with what they were accomplishing, but that opposition from human rights and gender rights groups was part of what made renewed support a challenge. The International Crisis Group (2009) in its Pakistan reports also consistently and aggressively

10 This approach to repaired relationships through shared work bears a strong resemblance to the Indonesian philosophy of gotong royong, which means mutual aid or ‘joint bearing of burdens’ (Geertz 1983). We have seen gotong royong in Indonesia following Muslim-Christian conflicts where Christian militias who burned down mosques rebuild those mosques with Christians to prove to Muslim refugees that they wish them to return to their village, from which they had driven them. And vice versa with Muslim militias doing gotong royong in the rebuilding of burnt out churches (Braithwaite et al 2010). Peacebuilding in Timor-Leste reveals something similar with villagers on different sides of their civil war rebuilding harmony by working together to reconstruct the building, which is the traditional spiritual centre of the village in their culture (Braithwaite et al, 2012:231-2). Strong cultural resonances to gotong royong exist with the Pukhtoon tradition of Balandra/Ashar (the village aid program): The people listen to the drum, go to the scene and listen to the elders’ instructions. The next day people come with their specialty: carpenters with their own tools, villagers with their horses and donkeys and elders with special food for the participants of Ashar. The drumbeat keeps the people’s spirits up. The job is completed in a few hours. Ashar is also arranged for poor and vulnerable people. The elders again ask youngsters in the Hujra at night to help the vulnerable according to the needs (Gohar 2012: 116). Valerie Braithwaite (2009) believes that power sharing is a way to move toward healing and transcend disengagement and defiance. These Pakistan, Indonesian and Timor-Leste traditions show that work sharing to rebuild relationships can be as potent as power sharing as a restorative justice ideal.

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opposes western support for any institutions of justice with a traditional Jirga character, arguing that investment should be directed to funding formal state justice.11 Then she said that another obstacle was opposition to the Muslahathi Committees from the legal profession. At that point the western author said that his interviews revealed a great deal of such fervent opposition but also large pockets of pro bono support from Pakistani lawyers (especially in tribal areas) who believed the Muslahathi Committees were strengthening justice delivery and preventing violence in their communities. Was not much of the opposition driven by the fact that the legal profession is an interest group that seeks rents from western aid, indeed that embezzles rule of law assistance in a large way on a regular basis? There was agreement on all these things but insistence that the legal profession nevertheless constitutes a formidable legitimacy threat to the Muslahathi Committees. Moreover, as we have documented, the legal and human rights critics can tell some troubling stories of abuses at the hands of Committee decisions (while glossing over stories of abuse of power by state justice initiatives they wish to see funded).

Another structural problem with the funding legitimacy of something like the Muslahathi Committees is that in small towns and rural villages support is strong. But visit the law school of a metropolitan university and opposition is vociferous. So we see all of the problems of lawyerly opposition to police that happened with restorative justice in Wagga Wagga and Canberra, combined with competition for rent seeking when the police and traditional justice compete with formal justice. These legitimacy problems were made more profound when the Province of Sindh High Court in April 2004 declared Jirga (Faislio in Sindh) unlawful in Sindh and unconstitutional, finding that the

Jirga system is not a creation of the Constitution or law. . . Functions which are exclusively to be performed by the Courts of law are being performed by the Jirgas thereby usurping the power of the Courts — Jirgas as such are a parallel judicial system which by themselves are unlawful and illegal and are not protected by any law’ (Shazia vs Station House Officer 2004).

The legitimacy problems have been recently confounded by the initiator of the program Malik Naveed Khan being accused though not charged with demanding corrupt payments by a defendant in a corruption case involving arms sales to the Pakistan police (The Express Tribune, 26 June 2013) There is also competition and critique of the Muslahathi Program from within the Pakistan police itself. The politics of critique is at a level of venom that makes the opposition to Australian police involvement in restorative justice, with which this paper opened, seem genteel. Another representative of a western donor passed on an anonymous tract doing the rounds on the internet in mid- 2013 which opened as follows [Comments by the authors that go to extravagance in the allegations are in square brackets]:

11 For example, International Crisis Group (2009:ii) lists as one of its common policy recommendations: ‘eliminating the role of tribal jirgas (councils of elders) to hear civil and criminal cases, and establishing civil and criminal courts. . .’

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Corruption has gone so deep into his soul and body that even it shocked and disappointed the international community when [named police officer] embezzled all the money granted for peace initiatives in KPK through mediation, conciliation and de-radicalization [Comment: No one can vouch that any program in Pakistan is corruption-free. Yet it is hard to accept that ‘all’ monies were embezzled when rooms in police stations purpose-built for reconciliation committees are there to be seen, people trained with the international funding are there to be interviewed]. The Australian government (AusAID) sanctioned $250,000 for Alternative Dispute Resolution to KPK Police through The Asia Foundation [The Asia Foundation Director of the time said that ‘A Memorandum of Understanding was signed with the NWFP Police, which was not a recipient of the grant, Just Peace International was’ (email to J. Braithwaite). It is possible that some subsequent money went direct to the police, but we have not been able to confirm this from Australian government sources] . . . a Memorandum of Understanding with the Foundation engaged a local NGO, Just Peace International (JPI), an apparently high sounding name but a poor, low quality street NGO. [Comment: Just Peace International is indeed a poor NGO and takes pride in being a local Pukhtoon NGO as opposed to an international or capital city NGO, though one that has made international contributions (e.g., Zehr with Gohar 2003). The Asia Foundation country director comment was ‘The Asia Foundation has a due diligence process for selection of NGOs, which is robust because what The Asia Foundation does is all through local NGOs]. . . the results of the pilot project came out depressingly zero, and . . . got exposed after so many evaluations were carried out by third parties who were sent by donors to see whether Musalihathi (Peace) Committees were formed in local Police Stations or not. The impartial evaluation teams of interested donors found no data, no record of committees, no financial record of expenses and no reduction in crimes or disputes in a local police area of jurisdiction. All record was found fake and self-fabricated in [named police officer’s] office. [Comment: If there are reports of evaluation teams that found this, we have not been able to locate them. This is not what the (Bhatti, Bakhsh and Khan 2010) evaluation found, the only independent evaluation we know. Also the cable reports from Pakistan by Australian government monitors in the possession of the Australian government in relation to this project are all positive. Our Australian Foreign Affairs sources found no reason to dissent from the analysis in our paper. No one can say records were never fabricated in any police station in relation to the program. Yet the allegation of ‘no data, no record of committees, and no financial record of expenses’ is clearly false. The western author has photographic evidence of such records rather impressively maintained by local Muslahathi Committees. The records of the Muslahathi Committees have their flaws, as (Bhatti, Bakhsh and Khan 2010) confirm, but the records actually paint a more impressive picture of the program in the years after the police officer named in this allegation left the police and in the period after international funding ended. So it is hard to explain impressive registers

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and statistics of case resolutions in terms only of the alleged fraud of this officer or to justify aid funding that has ceased]. The money of Australian taxpayers was thus badly usurped and corrupted. This gave a shock to the AusAID, according to an NGO expert, that no more money was sanctioned for this project [AusAID never committed any funds to the project, the Australian Department of Foreign Affairs and Trade did; neither organization confirmed this view. Foreign Affairs said to the senior author that concern for the lives of service providers as a result of the deteriorating security situation combined with a belief that the program could be self-sustaining was the reason Australian funding ended. They said their response to credible evidence of corruption would be an Australian Federal Police investigation, not program termination. In response to our sending this draft for comment, we were told that in August 2013 the Australian Federal Police concluded there was not evidence to justify such an investigation. The Australian government saw it as a successful program.] and a very good initiative succumbed to the inborn corruption of [a named police officer]. The international community and donors agencies were befooled and badly disappointed for any peace initiative in KPK, thus leading to international pressure for military operations against Taliban in KPK/FATA as peaceful projects got failed.

These allegations were repeated in these terms by Dr Murtaza Mughal, President of Pakistan Economy Watch, in many newspapers. There were also additional embellishments and allegations, for example: ‘third-party independent evaluation ordered by USAID and AusAID revealed that nothing was done on ground and all documents regarding activities and expanses were bogus. All the record presented before the auditors was found fabricated which failed the initiative to reduce crimes and disputes in the target areas thus misappropriating the money of American and Australian taxpayers, he [Dr. Mughal] said.’ (Dr. Mughal Press release). The Australian author wrote to Dr Mughal asking where these audit reports that discovered these fabrications were to be found, who conducted them, and what the USAID involvement was in the reconciliation committee program, something of which we had no knowledge. No reply was received. In interest-group contests for monopoly over local justice, the police corruption card can be played with unbounded extravagance in societies where police corruption is normal and expected.

One basis for opposition of some police leaders is the fact that the Muslahathi Committees are dealing with thousands of civil cases on matters like land and business disputes that are not regarded as police matters (Fasihuddin 2010: 133). A counter-argument is that this civil dispute resolution is critical crime prevention work because civil disputes spiral into violence and feuds in a revenge culture. We have seen that Muslahathi Committees manifest in a sense a pre-Peelian conception of police as a generalist regulatory institution not confined to criminal breaches. They are pre-Peelian police institutions that regulate any conflict that might induce deep feelings of injustice and anger in the community (Dinnen and Braithwaite 2009). Muslahathi Committees deal with business and land conflicts, regulation of gambling, water conflicts,

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environmental disputes, disputes over roadways, consumer protection matters, and the whole gamut of civil regulatory concerns.

One possible approach to these legitimacy challenges in the context of a ruthless criminal justice politics is for donors to support the preservation and protection of traditional Jirga justice in rural tribal Pakistan where traditional justice practitioners are targeted by militants, rather than joining forces with militants to help crush them (see Wardak and Braithwaite 2012). And to orient and condition that support toward women brave enough to participate in Jirgas and to human rights training and legal checks on rights abuses by Jirgas (see Wardak’s (2006) analysis to this effect for Afghanistan). Finally, where local Jirgas decide that they would like the option of taking some of their Jirga-style deliberation into a hybrid state-non-state reconciliation committee inside the walls of a police station that could be funded on the basis of this choice by local civil society. So legitimacy challenges, including from the restorative justice movement, might be softened, at least in some ways, by channeling funding to alternative dispute resolution in civil society, with civil society deciding whether some of it should go to a civil-society-police restorative justice hybrid. Lawyers who we interviewed in 2013 frequently responded to that suggestion by arguing that ADR under the control of the legal profession, staffed by law graduates, was the better approach. Court- facilitated ADR under the provisions of the Small Claims and Minor Offences Court Ordinance, 2002 was frequently favored because the statutory footing of this program is more institutionalized. This top-down ADR works by courts referring cases to a list of retired judges and lawyers who are paid but who are untrained in restorative justice (though some may have received some ADR training in the western lawyerly tradition). In conflict zones where people are being targeted for assassination because of their justice politics, it is even more difficult than in a context like Australia to separate an assessment of the effectiveness of restorative justice from responsiveness to the politics and legitimacy of justice.

Conclusion

Perhaps the most impressive thing about Muslahathi Committees is the volunteerism that has sustained the fruits of a modest donor investment of approximately $90,000 years after it was spent. Volunteers continue to be motivated by both the social status of being selected as a suitable elder to be trusted as a Committee member and by the feeling that they are making a contribution to reducing violence in their community. It is a remarkable thing that one of the largest restorative justice programs (restorative justice hybrids) in the world has no public funding apart from the salary of the police officer who attends. A senior police officer who saw great positives in the program, nevertheless issued this caution in commenting on our draft:

[Muslahathi Committees are] said to be cost effective but most of the time both parties have to organize grand feasts and at times gifts are offered to the members costing much to get a decision. Women related matters get due importance and justice is done to them. Political interference cannot be overlooked in these committees. There could

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also be vested interest and chances of corruption cannot be ignored. Police self-projection is another point to be considered as it may take all the credit of the reconciliation done by the Muslahathi Committee.

In 2012 case throughput did decline significantly from its 2011 peak and in 2013 the program shows signs of struggling from under-investment in training and monitoring. Particularly needed is training of women elders and their proactive placement on Muslahathi Committees. Pukhtoon and Baluch rural republicanism flourished long before Jefferson and the French revolution; it has been more resistant to date to feminist politics than the politics of the descendants of these western founding fathers. There is nothing inherently permanent about that.

Another huge limitation on the potential of Muslahathi Committees to make a contribution to peacebuilding is that the most dangerous rural areas of Pakistan, PATA (Provincially Administered Tribal Areas (Malakand, Swat), FATA and Baluchistan, are militarized. There are no police stations (though new initiatives are starting Muslahathi Committees in some of these areas); the military are responsible for policing, working with tribal militias armed with automatic weapons that are a police of sorts. The many reasons why it is unwise for soldiers to take over community policing functions in places like Iraq, Libya, Syria and Pakistan are not the topic of this article. In the context of FATA and PATA, however, we point out that another good reason to put police rather than soldiers into front-line community policing work is that police stations can support and protect the work of Jirgas behind their walls in the areas where their peacebuilding impact is most needed.

It has been shown that rule of law vacuums attract terrible tyrannies. Western rule of law models provide an incomplete answer for how to combat them. A saving grace is that eastern deliberative democracy in the judicial branch of governance shows more promise than deliberative democracy in the executive or legislative branches. It has long been an eastern practice in advance of western democratic theory. For centuries it has allowed reconciliation that tribal parties see as workable win-win agreements that prevent the spread of revenge from family to family to village to village.

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Cases cited

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