Restorative justice

Published November 14, 2020
The writer is a lawyer.
The writer is a lawyer.

A CONSTANT stream of reports of violence against women and children has given rise to widespread outrage against impunity for such crimes and loud calls for accountability. There are, however, differing views regarding the form of accountability. Following the rape of a woman on a motorway in Lahore more than two months ago, the government called for greater punishments for sexual crimes, including public hangings and castration. Advocates for victims of violence, on the other hand, stressed that calls for stringent punishment detract attention from the failure of the criminal justice system to prosecute and punish these crimes.

While the government and activists were at odds over the emphasis of the response, there was no disagreement that justice in these cases should take the form of criminal accountability. Movements for ending violence against women have also, for the large part, viewed a ‘successful’ outcome to be that which leads to prison. But in spite of years of brave and committed activism, the criminal justice system consistently fails to punish and prevent gender-based violence. At this stage, where awareness of the scale of sexual violence is arguably higher than ever before and yet any improvement in the justice system is imperceptible, it’s important to consider whether criminal accountability is worth its central place in our activism and if alternatives to imprisonment for violent crimes should be considered.

Restorative justice offers a different perspective to accountability. Restorative justice approaches place the victim’s needs and preferences at the centre of the accountability approach. The alternative to the punitive measures is a dialogue between the victim and the perpetrator, which often includes family and community members. The victim has the opportunity to decide what reparation would look like, and the perpetrator is to take measures to atone for his acts instead of going to prison.

With the growing recognition that an adversarial criminal justice system offering only punitive outcomes is inherently incapable of healing victims and making communities safer, restorative justice approaches are being pursued as alternatives to criminal accountability in some parts of the world. In New York City, for example, a restorative justice project known as Common Justice is offered to victims of violence as an alternative to the criminal justice process. It should be no surprise that 90 per cent of the victims of violence, when given the option to choose, prefer the restorative justice project. Procedural obstacles and uncertain outcome of the criminal justice system disempowers the victims and does not offer any sense of closure, while the restorative justice process affirms the victim’s agency and increases chances of some form of reparation.

Once criminal accountability is initiated, victims and their families can lose control over the process

As a lawyer who has counselled and represented many victims of violence, I have come to realise that the criminal justice option is often undesirable. Victims sometimes pursue it because it is the only mode of accountability available, but the arduous system ridden with delays and humiliations leaves many exhausted and burnt out. Once the criminal accountability process is initiated, victims and their families tend to lose any control over the process. Investigation and prosecution of crimes is handed over to the law-enforcement authorities, state-appointed prosecutors and judges, and the victim’s needs and well-being are ancillary. Far from attaining justice, victims and their families are often subjected to the exploitation and corruption of the law-enforcement authorities.

The criminal justice approach becomes particularly undesirable when we consider that in a majority of violent incidents against women and children, the perpetrators are well-known to the victims. Women facing violence from intimate partners and children experiencing sexual abuse from close family members often do not want prison for the perpetrators. They also know that the prison sentences will be temporary and fear what will happen when the perpetrator comes out from the system that offers no rehabilitative services at all.

There are certainly plausible feminist concerns about the restorative justice process. Feminists have struggled for decades for violence against women to be recognised as a public harm, and it may seem that restorative justice approaches take patriarchal violence back to the private sphere. Restorative justice approaches, however, recognise that violence against women constitutes a societal harm and therefore involves community members in the accountability process. Community members are expected to facilitate the dialogues, and a crucial component of the restorative justice process involves community recognition of the harm that has taken place.

It is also important to distinguish the restorative justice approach from informal justice mechanisms, commonly known as jirgas, employed in Pakistan. Such informal mechanisms typically give the authority to patriarchal ‘heads’ of the community to mediate between the victim’s family and perpetrators, thereby removing the agency of the victim to shape the accountability process, which is a core principle of restorative justice. Proponents of restorative justice emphatically distinguish it from mediation, which requires a third party to ‘resolve’ differences in a way that is acceptable to all parties. In contrast, compromise or even forgiveness are not necessary outcomes of the restorative justice process; instead, the goal is to support the victim in determining the kinds of reparations that would bring her closure and seeing to it that the perpetrator takes these steps.

Undoubtedly, developing effective restorative justice processes in Pakistan will be challenging. A fundamental question in our context is whether deeply patriarchal communities can ever be trusted to facilitate the process in a way that is fair to the victim. But the complexity of the task should not deter us from exploring its possibilities. Given the scale of gender-based violence and the dire shortage of solutions within existing frameworks, we must broaden our notion of justice to include processes and outcomes that fall outside the limited scope of criminal accountability and emphasise healing for victims and societies.

The writer is a lawyer.

Published in Dawn, November 14th, 2020

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