North & South - - Cover Story Part Two -

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.

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