APPLYING THE RESTORATIVE JUSTICE MEDIATION PROCESS

Document Sample
APPLYING THE RESTORATIVE JUSTICE MEDIATION PROCESS Powered By Docstoc
					                                                         PNG, Bougainville CitEd Case Study




           CITIZENSHIP EDUCATION CASE STUDY




    COMMUNITY JUSTICE IN BOUGAINVILLE


                        (PAPUA NEW GUINEA)

           By Br. Pat Gowley, PEACE Foundation Melanesia




                                            2004




                                                                                          1
Asian South Pacific Bureau of Adult Education (ASPBAE)
Community Justice in Bougainville
                                                                PNG, Bougainville CitEd Case Study



COMMUNITY JUSTICE IN BOUGAINVILLE

By Br. Pat Gowley, PEACE Foundation Melanesia


This concise, readable document discusses the innovations to the community justice
system instituted by residents of Bougainville in Papua New Guinea. Written in a
combined question-and-answer and outline format, the paper describes the
philosophy, rationale, principles, elements, and processes of Bougainville’s
experiment with a new kind of community justice—restorative justice.

The concept of restorative justice is not entirely new but draws from the alternative
dispute-resolution paradigm, which began to be widely articulated in the 1970s, and
which is regarded as the traditional Melanesian way of settling conflicts. Under this
framework, a consensual approach to the settlement of disputes is deemed more
appropriate than an adjudicatory one, that is, a judge, under authority of the state,
makes a binding decision without concern for the agreement of the disputing parties.
Adjudication is viewed as non-conciliatory and adversarial because of its emphasis,
among others, on indictment and punishment, which is seen to largely produce win-
lose or zero-sum outcomes.

In contrast, the restorative approach is seen as ‘forward looking’ because it is not
only concerned with conflict-resolution but also with ‘mending the broken relationship’
between disputants and regenerating harmonious relations within the community. In
this approach, the conflicting parties negotiate and arrive at a mutual settlement of
the dispute often with a third party acting as mediator. The community also plays a
central role in the system of restorative justice. Reparations, e.g. a pig for a pig, land
for blood, of damages require the support of family and relatives. Also, families and
relatives of the offender play a crucial role in ‘restoring’ the latter to the community by
assuming responsibility for the reform of his/her behaviour. Half of the membership of
the Peace and Good Order Committee, the body responsible for law and justice in
the village, is also drawn from the community at large. The other half consists of the
village magistrate, constable, and the traditional bigman or village chief.

The paper contains many valuable insights that are relevant to education work in
peace, democracy and citizenship. Only a few, however, can be mentioned here.
One is the restoration of the centrality of citizens in the maintenance of social peace
and public order. Another is the view of conflicts as embedded in social relationships,
which has implications on the way disputes are settled. In the case of Bougainville,
restoring harmonious relationships and reconstructing a disrupted social order are as
important as resolving conflicts. This also emphasises the strong inter-relationship
between peace and justice. A third relates to what can be described as the
‘unblinding’ of justice. The liberal conception of justice rests on the assumption that
fairness, impartiality and equal treatment in the application of the law is best
achieved through a depersonalised system. Judgment and punishment are often
removed from the disputants themselves and are carried out by the impersonal state.
The restorative system is a shift away from this depersonalised mode, adopting
instead a dialogical and interactive approach where disputants themselves arrive at a
mutual and highly personalised terms of settlement.



                                                                                                 3
       Asian South Pacific Bureau of Adult Education (ASPBAE)
       Community Justice in Bougainville
                                                               PNG, Bougainville CitEd Case Study



COMMUNITY JUSTICE


Mediation/Restorative justice/Custom law


Why restorative justice?

Since Independence there have been a variety of arguments put forward within the
Law and Justice Sector, which have recommended the use and strengthening of
Alternative Systems of Dispute Resolution within the Criminal Justice System. These
recommendations have come from reports, conferences and policy papers and
discussions, which in essence have argued that such an approach is:
    sensible because the introduced system of village courts is not functioning as
    anticipated
    just and fair and avoids the adversarial nature of current dispute resolution
    involves all the stakeholders
    related to traditional practices of dispute resolution
    consistent with government policy of devolution, and
    cost effective.

In addition the current, approved National Law Order and Justice Policy has placed
Restorative Justice as the central thrust of the policy. The following quotes from the
policy illustrate the nature of Restorative Justice within the policy.

“The policy adopts the concept of restorative justice as a core rationale for the long-
term future of the law and justice sector. This is the rationale or philosophy that links
the work of all the law and justice agencies and other relevant groups in the
community concerned with the promotion of peace and good order. The policy
proposes a gradual and deliberate shift away from past approaches that have been
retributive and adversarial in character.”

“Restorative Justice is a problem solving forward looking approach to crime and
conflict. It can be contrasted with the backward looking focus of most criminal justice
systems, which tend to concentrate on establishing who was to blame for a particular
act that has taken place. The restorative approach represents a change from an
adversarial and retributive orientation to one of cooperation and partnership between
the various stakeholders in the promotion of peace and good order. Restorative
justice envisages a central and active role for the community in the maintenance of
peace and resolution of conflict. ”

The present justice system in the villages

In the present set up there is a village magistrate and a village constable. Both
positions have weaknesses. The village constable is a single individual; s/he may
have a conflict of interest; s/he may be unwilling to act for fear of offending some
person; or s/he may refuse to work if the government fails to pay on time. If any of
these happen the court does not operate.
                                                                                                4
      Asian South Pacific Bureau of Adult Education (ASPBAE)
      Community Justice in Bougainville
                                                                   PNG, Bougainville CitEd Case Study

The village magistrate, in turn, may also refuse to work if not paid; may favour some
people in is decisions; may be afraid to make tough decisions; or may favour men
over women. If any of these happen there is no just court.

The new Melanesian Custom Law or Community Justice process does not place the
village constable in a difficult position shown above and it still requires the duties of a
village magistrate. A PEACE and Good Order Committee made up of the village
constable and five other persons of status (including women) supply a support group
for the village constable. The village magistrate is required when either one or both
parties do not agree to mediation.1

What is restorative justice?

The concept of restorative justice is not entirely new but draws from the alternative
dispute-resolution paradigm, which began to be widely articulated in the 1970s, and
which is regarded as the traditional Melanesian way of settling conflicts. Under this
framework, a consensual approach to the settlement of disputes is deemed more
appropriate than an adjudicatory one where a judge, under authority of the state,
makes a binding decision without concern for the agreement of the disputing parties.
Adjudication is viewed as non-conciliatory and adversarial because of its emphasis,
among others, on indictment and punishment, which is seen to largely produce win-
lose or zero-sum outcomes.

Melanesian tradition uses three processes in their dealings with one another.

Consensus: The need to talk about the matter, provide all stakeholders with a chance
to express their views and come to a decision which provides some benefits for all.

Win-win mediation: This is used when two parties are in conflict about a matter
where there is a no one person at fault such as a difference of opinion over land, or
property, or children, family differences and differences between churches which are
best settled by win-win mediation. A Melanesian must be allowed the need to avoid
shame and to save face in the eyes of the community. The person who feels himself a
failure in the eyes of the community is generally obliged to find some way of
payback. To Melanesians a win-lose decision is abhorrent.




1
    Mediation is used here in the general sense to include win-win mediation and restorative justice.
                                                                                                        5
          Asian South Pacific Bureau of Adult Education (ASPBAE)
          Community Justice in Bougainville
                                                               PNG, Bougainville CitEd Case Study


                                        Win-win mediation

            Win-win mediation is used when there is a conflict of rights or
            when both parties have committed a fault against each other.
            This includes a conflict between husband and wife over children,
            housing, property or duties of a wife or husband, suspicion or two
            women in a fight over a man.
            Restorative justice is used when one person has committed a
            crime against another person such as domestic violence, hold up,
            stealing, adultery, rape, insulting language or gossip.
            One should never try to settle a matter requiring restorative
            justice by using win-win mediation.




Custom Law: (Restorative Justice) This is the process that concentrates on mending
the broken relationship that brought about the crime and brings a peaceful solution of
healing back to the village. This is done when the offender is confronted with his
action, which has brought harm to others. The confrontation brings shame to the
offender so that he asks for forgiveness and agrees to restitution. He is then reunited
with the victim and the community through a ceremony of forgiveness. Custom law is
used when one person commits an offence against another.

In Bougainville people claimed that restorative justice is the traditional method so
PEACE Foundation sat down with them and built a programme which contains the
best of both systems.

We agreed that:

   All retributive punishments such as jailing, beating, cutting off fingers and
   'cooking' feet in the fire were forbidden.
   The western world has recently discovered the restorative justice process. In the
   situation it was used to provide a firm point-by-point process to be followed to
   obtain best results.
   An essential Melanesian contribution is that:
   The community is a major stake holder and must be actively involved
   The family and extended family are essential elements of community justice and
   family must accept responsibility for the behaviour of their members.

In the process we recognized that shame rising from personal attacks on the character
of the offender are counter productive but shame arising from the exposure of his/her
behaviour and its impact on the community are essential to reform. The next step after
shame is apology, followed by forgiveness, restitution for the damage done (the
family have a duty here), reconciliation and finally restoration of the offender to the
community. There are two essential premises:

                                                                                                6
      Asian South Pacific Bureau of Adult Education (ASPBAE)
      Community Justice in Bougainville
                                                                PNG, Bougainville CitEd Case Study


   Shame without forgiveness destroys the soul.
   Shame that is forgiven with restoration of the offender is healthy for the whole
   community.

When this process is followed it:

   Provides the victim with a chance to talk about the harm done
   Places a penalty on the offender
   Gives the village a chance to talk about their values
   Gives the offender the chance to apologise and get rid of his guilt
   Reconciles the two parties and reconciles the offender to the village
   Mends the relationship
   It is quick - there are no long delays or choking up courts and jails with waiting
   cases
   It is cheap since there are no legal fees or fees for lawyers
   There are no costly jails. (It costs as much to keep a person in jail as it does to
   send one through the university).
   There are no people returning from the jails as expert criminals and still
   unforgiven angry men hating the community.
   It is traditional, it is effective and people generally prefer it to the win-lose court.

Can mediation and restorative justice replace the courts?

There are numerous cases where mediation and restorative justice are not appropriate
and the court system is the only road to follow:
   Mediation and restorative justice can only be used when both parties agree
   Mediation and restorative justice cannot be used in a case involving a
   compensation which looks to making a profit
   Any case where the person does not admit his guilt must go to a court so that
   witnesses can be called and evidence produced.

The Peace and Good Order Committee (PGOC)

In a village the PEACE and Good Order Committee is the body that is responsible for
law and justice. Itis made up of about 6 people. It is gender balanced and should
include the village magistrate, the village constable and the traditional bigman.

The work of the Peace and Good Order Committee is bound by the rule of
community justice: mediation first –court second; community first – police and court
second.

1. Each village PGOC is expected to handle its own internal conflicts.
If someone threatens the gutpela sindaun of the community then the PGOC is
responsible and must deal with it. The PGOC speaks to both parties to see whether
they prefer restorative justice or going to court; if the latter, then they are free to use
lawyers. If restorative justice is the option then they must abide by the ground rules
and follow the mediators who will help them to arrive at a conclusion which they
themselves agree on. It is a matter to be settled by both parties working together, not
by a set of legal procedures.
                                                                                                 7
       Asian South Pacific Bureau of Adult Education (ASPBAE)
       Community Justice in Bougainville
                                                               PNG, Bougainville CitEd Case Study

2. PGOCs maintain close relations with the district authorities and liaise with the
   District Manager, the uniformed police and the District court

3. They are expected to report serious conflicts to the police or those that should to
   be handled by the District court. However they may make an agreement with the
   police or the court to deal with the conflict themselves using the traditional way if
   this is more appropriate. They will do this if they believe that a win-lose court
   case would make things worse.

4. The PGOC overviews all conflicts in the community, no matter how small. When
   it comes to their attention they may:
       Put it aside
       Refer it to win-win mediation
       Refer it to restorative justice
       Send it to the police for court action
   For the matter to be dealt with by restorative justice a first requirement should
   restitution. For court, the law should be able to demand restitution.

5. The PGOC acts on all conflicts, speaks to both parties and if necessary contacts
   two mediators (male and female) of their choice. If the PGOC sends the case to
   mediators they will find mediators that suit both parties. A mediation team is
   made up of one man and one woman whose duty is to help the contesting parties
   to make a decision. A mediator may not make a decision.

6. The government does not pay the mediators. The two parties that need mediation
   pay them. The PGOC sets the payment to be made to mediators by both parties. A
   reasonable payment would be K10. Poor people will pay less but all must pay
   something. Members of the PGOC may act as mediators if they have been trained
   to do so. In any case, PGOC supervises the mediation and at least one member of
   the PGOC should be present at the mediation.

7. All cases are recorded in record books. The PGOC is responsible for supervising
   the record books. Many people do not believe in mediation and restorative justice.
   These record books are important as a proof that mediation and restorative justice
   are the most effective ways of dealing with conflicts.

8. When a decision has been made at a mediation or restorative justice the PGOC
   oversees the agreement between the two parties.

9. A young person (or first offender who commits a serious crime must be placed on
   parole with his extended family) This means that the offender is kept inside the
   community under the control of his extended family and must report regularly to
   the PGOC.

10. Inter-village conflicts are the responsibility of the two village PGOC’s, who meet
    regularly to discuss matters of mutual interest




                                                                                                8
      Asian South Pacific Bureau of Adult Education (ASPBAE)
      Community Justice in Bougainville
                                                               PNG, Bougainville CitEd Case Study


Process of community justice in the village




                An offence (criminal or civil) has been committed.

                The PGOC meet and call in the two parties. The

                interview them separately and make a decision as

                follows:




   Ignore it           Village court               Mediation         Police and District court




 The matter            Magistrate               Win-win                  Police arrest
 does not              imposes a                mediation or             and court
 require any           decision of the          restorative              decision.
 further               court                    justice as               District court
 attention                                      required                 or High court.




Process for community justice in the towns

In the towns the process is similar. Each district would have its own PGOC.
According the how they regard their ethnic grouping.

A criminal act in the town boundaries is referred to the police who take the offender
into custody and pass him/her over to the pertinent PGOC.

The PGOC deals with the offence as above. The PGOC would require members of the
extended family to be present for any decision regarding restitution or any matter
requiring expenditure of energy time or money.

There seems to be no reason why such a process cannot be applied to public servants
or persons involved in white-collar crime.

Penalties:

In mediation and restorative justice the parties decide for themselves what they must
do to make up for the wrong.


                                                                                                 9
      Asian South Pacific Bureau of Adult Education (ASPBAE)
      Community Justice in Bougainville
                                                               PNG, Bougainville CitEd Case Study

Restitution is expected in restorative justice, for instance, a pig for a pig and a house
for a house. Money stole by a person at any level must be returned. If the individual is
not able to meet the restitution then the burden falls on the extended family. It is
understood that money compensation is a very bad way of making up for the wrong
done to a person or the community -- it is not traditional and leads to bigger and
bigger payments and there is no sorrow of forgiveness, as the victims become more
and more money face.

There will be times when the community will be unwilling to forgive the person
immediately. Offences such as murder, rape and incest cannot be settled easily. In
these cases the PGOC may decide to exile the offender for a time and make
arrangements for reconciliation and forgiveness when he returns after a set time.

Another traditional payment for murder is for the family of the offender to pay a
certain amount of land to buy back the blood. Land can buy blood but money cannot.

Records of hearings by mediators

Each PGOC is provided with record books to record all cases that are heard. These
books are the evidence that the community is using community justice, and also proof
that the community justice system is effective. They are available to the higher courts
for reference.

The weaknesses of the mediation system driven by PGOCs

They may take too much on themselves.




                                                                                               10
      Asian South Pacific Bureau of Adult Education (ASPBAE)
      Community Justice in Bougainville
                                                                PNG, Bougainville CitEd Case Study


                     Annexure 1: Sample format for record keeping


Place ……………………..                     Date…………………….                       Case No………………..


Mediators (Male) ……………………………. (Female)                                   …………………………..


PGOC Member present…………………………………………………………………


Two people (or groups) involved in the conflict.
..…………………………………………………………………………………………
…………………………………………………………..………………………………


Briefly outline the conflict.
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………


Argument of the first party
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………


Argument of the second party
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………


What are the solutions produced by both parties to deal with the conflict.

                                                                                                11
       Asian South Pacific Bureau of Adult Education (ASPBAE)
       Community Justice in Bougainville
                                                               PNG, Bougainville CitEd Case Study

First Party……………………….…………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………


Second Party………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………


Decision arrived at by both parties.
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
Signed
First Party ……………………………Second Party…………………………….

Witness ……………………………..

Mediators Male………………………. Female …………………………………..

PGOC representative……………………………………………………………..

Date …………./ …………../……..




                                                                                               12
      Asian South Pacific Bureau of Adult Education (ASPBAE)
      Community Justice in Bougainville