WHY DID MĀORI NEVER HAVE PRISONS?
The heading above is the title of a talk by lawyer Moana Jackson that’s available on Youtube. When he proposed a Māori justice system in the 1980s, the idea was not well received. “It flew in the face of the ‘one law for all’ rhetoric,” he says. “But in 1840, there was one law for all – our law. Colonisers chose to ignore it. One of the difficulties we have in talking about how a Māori justice system operated is to overcome the colonising myth that Māori didn’t have real law.”
Historically, Māori transgressed like any other humans, says Jackson. “But because of the particular social and cultural attitudes that had developed, there was almost no such thing as what we now call domestic or child abuse. If a wrong was committed against a child, it was one of the most serious wrongs that could be done, because you not only abused the tapu or specialness of that child but also his or her whakapapa, the wider whānau to which they belonged, but most important, the whakapapa to which the wrongdoer belonged.”
If a wrong was done, the focus was on the harm done to the victim. “We had an institution called the pokai tara to deal with issues that could not be mediated between the whakapapa of the wrongdoer and that of the person wronged.”
The pokai tara was chaired by a tohunga, who was joined by representatives of the wrongdoer and the person wronged in a three-person panel.
“Their task was not like that of a Western legal system asking, ‘Guilty or not guilty?’ They began with two questions: ‘Do you understand the harm you have done? Do you know who you have harmed?’
“The first question led to a consideration of what had been damaged and brought the wrongdoer to understanding and accepting that. The second question led to a question of how the relationship could be mended. The ultimate sanction a pokai tara could impose was banishment from the whakapapa.”
Transgressors were sent to whare mārie, which Jackson says is hard to translate, “but ‘a place of peacemaking’ is probably the closest”. Temporary buildings were set up as needed; whare mārie housed transgressors not for a defined length of time, as in a prison sentence, but until healing was complete.
Community-based sentences are often touted as a progressive alternative to prison, but they aren’t what they used to be. “Many years ago, they abandoned periodic detention,” says Kim Workman.
Offenders sentenced to PD were confined in special facilities – not prisons – from Friday to Sunday. “They used to run rehab-type programmes in those weekends. A lot of the wardens were young community workers who did innovative stuff. We very rarely do anything rehabilitative these days in community sentences.”
Perhaps our concept of justice is due for a rethink. “We need to substitute the idea of accountability for the punitive approach,” says Workman, who’s run restorative justice conferences. These, in essence, bring offender and victim face to face in order to get the former to acknowledge the wrong they have done to the latter, and to work out how they can make it up to them.
Currently, we think of offenders as being accountable to the state, a concept they often cannot comprehend. “But if we said to them, we’re holding you accountable to the people you’ve harmed directly – to the victim and the community you live in – they can visualise and understand what that means,” Workman explains. “That’s a powerful tool in terms of offenders realising who they’ve harmed and the extent of it. Often, that was a motivation to change.”
But don’t our current prisons at least change some people’s behaviour for the better? Indeed they do, but that misses the point, says Moana Jackson. “That would be rather like saying, ‘School works for most kids, so it’s okay.’ School might work for the majority, but does that mean we ignore the minority for whom it doesn’t? And prison is the reverse – it might work for the minority, but should we ignore the majority for whom it doesn’t work?” +
Above: An inmate sunbathes in front of one of the wooden cottages at Norway’s Bastoy Prison – described by CNN in 2012 as “the world’s nicest prison”. The facility, which hosts 115 inmates, is situated on an island 75km south of Oslo. Reoffending rates have been reported at 16%, compared to the European average of around 70%. Right: A prisoner takes a walk around the island.