Futurelearning

One law for all or one justice for all?

The two need not be the same, Moana Jackson tells Victoria University of Wellington’s conference on restorative and Māori justice approaches to New Zealand’s prison crisis

Dr Moana Jackson, one of Maoridom’s most influential legal scholars, has a question for New Zealand: are we “brave and imaginative enough” to stop insisting on one law for all.

“In the end, the goal of being just, the goal of restoring relationships, is not so much about one law for all but one justice for all,” said Jackson, a Victoria University of Wellington alumnus and honorary doctorate, who was speaking at a University-organised conference on restorative and Māori justice approaches to the country’s prison crisis.

“It seems to me there is always more than one way of achieving justice. People in different countries have quite different ways of achieving justice that are consistent with their history, with their culture and with their way of understanding what justice means.”

New Zealand’s criminal justice system, said Jackson, is one imposed on Māori in 1840 with the Treaty of Waitangi and “built initially on the subjugation of Māori legal processes, the denial for a long time that Māori even had law or legal processes”.

Before 1840, there was a system that “wasn’t based in London. It grew out of the stories of this land, it grew out of the ineffable hopes of this land, as any true justice system does”.

It was a system – and a language – that didn’t even have a word for ‘prison’.

“The idea that you would isolate someone from the circumstances that had led to their wrongdoing was simply culturally incomprehensible.”

One of the biggest barriers to addressing the overrepresentation of Māori in prisons is that the debate is divorced from the question of political power and who wields it, said Jackson.

It ignores that “the early dealings of the current legal system were targeted almost entirely at Māori. That Māori were in prison for opposing and resisting the imposition of colonial power. That Māori were actually persecuted for opposing the imposition of colonial power.

“The criminal justice system as it exists is a direct product of the oppression of Māori people. Just as I always say it’s unwise to think one can think about a young Māori man in a prison cell in Paremoremo or a young Māori woman in a prison cell in Arohata divorced from the history that shaped them and their whānau and their hapū and iwi, so it is unwise to think about the current criminal justice system in isolation from the history that has shaped it.

“The idea that you would isolate someone from the circumstances that had led to their wrongdoing was simply culturally incomprehensible.”

“For me, a true restorative justice process, certainly in this country, requires ultimately a recognition of the rangatiratanga, the self-determination, of Māori.”

Although there have been positive initiatives in recent years, such as Rangatahi Courts for youth, held on marae and following Māori cultural practices, “in the end the decisions about who is to go to the Rangatahi Court, decisions about what happens to those people in the Rangatahi Court, are not made by Māori. They are made by the rules and regulations set down by the opposed criminal justice system”, said Jackson.

“So, for me, those initiatives have some ameliorating effect, they are step along the journey, but they are not the ultimate goal on the journey.”

One goal for Jackson is “the eventual abolition of prisons, which would bring this country much closer to finding alternative ways in Māori traditions”.

He said, “My view is that in the long term you can’t humanise prisons, which are fundamentally inhuman. So discussion, for me, should not be how we train prison officers to be more sensitive and caring but how we train them eventually to see there’s some other way of doing things; that incarceration is not the answer. I think the idea of some sort of humane, caring prison is as contradictory in terms as the hopefully short-lived discussion about having a Māori prison.”

Jackson gave an example of Māori justice in action, telling the story of the restorative process conducted by two hapū after young men from one offended against the other.

“One of the marked differences between the introduced and subsequent English legal system and the system that existed in this land for hundreds of years before then was that there was no word, and still is no word, for ‘guilty’ in our language. And so the proceedings did not begin with the question: ‘Do you plead guilty or not guilty?’ Rather, the question was asked in two parts: ‘Do you understand the harm you have done and do you know who you have harmed?’”

If you start from those different positions, said Jackson, you embark on quite different processes.

In this case, the process that followed included a ceremonial restoration of the relationship between the hapū, marked by an exchange of taonga and the composition of waiata that are sung to this day.

The young men had to help the hapū they had offended against with its harvest and other tasks over five summers, and had to study the tikanga they had infringed.

One of the key lessons of Jackson’s example, he said, is that restorative justice needs to be about more than just restoring the relationship between an offender and their victim(s).

“And that’s consistent with what I think is one of the biggest flaws in the Pākehā criminal justice system, that it isolates the wrongdoer, it isolates the victim, from the communities and the history to which they belong. So there is no restoration beyond the individual in those cases. There is an addressing of harm that may have occurred between those people, but there is no addressing of the wider relationships that may have been damaged and there is certainly very little attempt to restore the history there may have been to that wrongdoing.”

Dr Kim Workman also had an example for the conference – “a story from before the words ‘restorative justice’ were being used”.

Senior New Zealander of the Year for 2018, social justice advocate Workman is an adjunct research fellow in Victoria University of Wellington’s Institute of Criminology and recipient of an honorary doctorate from the University. He was a police officer in the 1960s and 70s and his later public servant roles included as head of prisons in the early 1990s.

The second morning of the conference was devoted to a tribute to Workman, who later in the day launched his new memoir, Journey Towards Justice.

“There’s no one who better exemplifies the commitment of this conference to restorative and kaupapa Māori justice ideals and so we are honoured to be able to mount it in your name,” said Professor Chris Marshall, the University’s Diana Unwin Chair in Restorative Justice, who co-hosted the conference with Professor Karin Lasthuizen, the University’s Brian Picot Chair in Ethical Leadership.

Workman recalled having been head of prisons for about six weeks when a distant relative serving a life sentence for murdering his female cousin in a brawl asked to see him in Wi Tako Prison, now Rimutaka Prison.

The man asked Workman if he could stay in prison for the rest of his life. No, said Workman, he was due to be paroled in about six months’ time.

“Well, I don’t want to go, because my cousin’s whānau have said they are going to kill me when I leave,” said the man.

“He was terrified," said Workman, who decided to arrange a meeting between the man, his whānau and that of his victim.

“He came and stayed with me for the weekend and on the Sunday I drove him over to the Wairarapa. He said, ‘Where are we going?’ I said, ‘We’re going to meet with your cousin at the cemetery.’ ‘Well, that won’t help me with my problem.’ I said, ‘It could, because her whānau are going to be there to hear the conversation. Your whānau are going to be there as well.’ ‘Ohhhh, golly,’ he said. ‘Do you think I’ll be safe?’ I said, ‘Well, we’ll see – they have promised not to kill you right away!’”

There was some “pretty rugged talk” at the cemetery, said Workman.

The man spoke directly to his cousin at her grave.

He talked “about what happened, how they were all drunk, how the whole thing got out of control, how he had never slept a night peacefully since”.

He was “full of remorse, shame, for what he’d done, the impact on his own whānau. And it was powerful. Really. It was a desperate moment. I realised he was probably fighting for his life! Then I spoke on his behalf. When I finished, the senior kuia from the victim’s whānau walked across and embraced him. There was a great deal of crying and everybody then came together and there was peace.

“Now I had not really read much about restorative justice. Nor did I have the tikanga knowledge one might have expected. But it just seemed the obvious thing to do”.

Heads of prison aren’t supposed to take prisoners home for lunch. And arranging a conversation between the families of the victim and the offender was a no-no. “I broke all these rules.”

The man, said Workman, “came out of prison, went home, and he was good. He was okay. He was well accepted and loved. His life went on. I just think we need to do more of that.”

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