The purpose of this Paper is to begin to explore the concept of a Maori criminal justice system. It is a discussion paper rather than a position paper.
In 1988, after extensive consultation and research conducted by Moana Jackson for the Department of Justice, the report 'The Maori and the Criminal Justice System: He Whaipaanga Hou - A New Perspective (Part 2)' was published.
Among a number of proposals was that for a parallel criminal justice system for Maori. It met with a negative response from the then Minister of Justice, Geoffrey Palmer, and received little further public attention until September 1993, when the matter of marae trials for Maori child sexual abusers was highlighted.
It has again come to the fore with TV3's Inside New Zealand documentary 'Marae Justice', screened on 31 August, together with the Courts Consultative Committee's call for cultural defence, which was summarily dismissed by Justice Minister Doug Graham.
This same Committee's recognition that Maori are under represented on juries lead Maori Law Society President, Gina Rudland, to say "what is needed is a parallel system that allows justice to be achieved for Maori by Maori."
The Joint Public Questions Committee sought the support of Conference (1993) and Assembly (1994) for a Maori criminal justice system. Both Bodies encouraged further exploration of the concept. This paper is a starting point for that discussion.
We have drawn heavily on the work of Moana Jackson of Nga Kaiwhakamarama I Nga Ture (Wellington Maori Legal Service) as he has done extensive work in this area.
The paper offers an opportunity for individuals and institutions to examine and think more deeply about the need for a Maori criminal justice system in Aotearoa.
A glossary of Maori terms used in the text is appended to the paper.
What's wrong with one law for all?
The law embodies and protects cultural values. One law for all stacks up well from a monocultural Pakeha point of view. It is not convincing from a Maori point of view because law is never culturally neutral. All law embodies and protects a particular culture's values.
The argument for one law for all in Aotearoa assumes our law incorporates universal notions of justice.
Moana Jackson reminds us that those ideals as applied to law here, are not so much universal, as the product of a particular culture.
He points out that,
"When the analysis of law is founded in the belief that 'one law for all' means 'one process for all' rather than 'one resultant justice for all', the debate becomes confined by monocultural strangulation. "
The law as an expression of culturally formed ideology.
On the surface, Pakeha criminal law and its processes of enforcement, are seen to represent the community's desire for peace, good order and protection from harm.
But law is always political, and criminal law can be seen to be an instrument of a capitalist ideology. When law defines as unacceptable those acts which directly threaten the economic status quo, or is based on the direct protection of property interest, it reflects the ethos and ideology of capitalism.
The law as a powerful and profound cultural statement. Ideologies do not develop in a vacuum. They are shaped by the values of a particular culture.
Criminal law in this country is the product of values distilled from British and Western history, so it reflects notions of individual rather than collective liability. Maori cultural values are simply not reflected in our criminal law.
Pakeha law is monocultural.
The definitions which underlie Pakeha law are distinctly monocultural, rejecting any Maori perspective of criminality.
They reaffirm the view that 'one law for al1' means one Pakeha law for all. Maori participation in the process of legal definition is rejected and the notion of Maori law dismissed as having no validity.
Did Maori have their own system of law and justice?
Responsibility to the wider community.
For over a thousand years Maori had their own criminal justice system operating in Aotearoa. This pre-European institution was based on social responsibilities that linked people to their wider community.
Actions that were unacceptable, known as hara, were well understood. A method for dealing with offenders was in place.
Those who committed hare or crimes were subject to the sanction of law. At the heart of this system was the recognition that everybody had a responsibility to the wider community. Important too, was the belief that all people had a tapu which was not to be abused by others.
The need for balance and harmony.
These went together with an understanding that society could only function if all things physical and spiritual were held in balance. Acts of bodily harm to another would be a ailure to recognise one's responsibility to others, would damage that person's tapu, and threaten the order of the community. Property offences went against a person's responsibilities to others and the community, and again threatened the stability of the social order.
So a criminal law with penalties aimed at constraining would-be offenders, developed to preserve harmony within and among individuals and their community.
This legal system was woven into the fabric of everyday Maori life.
Crime took many forms. Murder was punishable by death. In the event of mitigating circumstances, utu or payment for the hara could take the form of muru or a plundering raid in which the offender was deprived of most of his possessions. In the case of theft, utu and muru applied. Undetected murders and thefts were subject to makutu which was much feared.
Rape was also an offence punishable by death, as was witchcraft, particularly where death was involved.
Investigation into crimes.
This was conducted openly by iwi and hapu. Offenders could defend themselves and call witnesses. Trials could be long but penalties were carried out swiftly with no right of appeal. This traditional Maori criminal justice system protected everyone against an arbitrary social order by providing social stability, order and security, as well as promoting communal responsibility.
What happened to this system?
The demise of Maori law.
The traditional Maori system of criminal justice did persist into the colonial period. There was no conflict with the law the Pakeha settlers brought to Aotearoa so long as Maori were numerically dominant and their traditional social system was functional.
However, increased numbers of settlers brought the call for 'good government' and 'law and order' along Pakeha lines. Maori however did not want to submit to British law and order. Instead they considered social order could be maintained by retaining their rangatiratanga and mana, with a possible sharing between the Maori and Pakeha legal systems.
Settlers, though, saw the replacement of Maori law by Pakeha law as an inevitable step in the process of colonisation. The idea that Maori law could be maintained was seen as a threat to the notion of one law for all, which was implicit in the Pakeha notion that Maori ceded their Tino Rangatiratanga or sovereignty when they signed the Treaty of Waitangi.
This is a notion that Maori have never accepted, believing that the 'Treaty guaranteed them their tino rangatiratanga, or control, of all their own affairs.
The imposition of Pakeha law.
It was now assumed that Pakeha values and ways of doing things are the only valid ones and that Maori should simply accept them. The institutions of Maori law were gradually replaced by the dictates of the settler government, but the ideals of Maori law and the value which underpinned Maori culture did not die out.
How do Maori see our criminal Justice system?
From a Maori point of view the present criminal justice system of one law and judicial process for all is not just culturally insensitive. but also culturally arrogant. It has no place for the acceptance of Maori ideals and practices.
In an article published in 'The Evening Post' Moana Jackson states that the present system is not just inadequate for Maori. In many instances it is also biased against them.
Maori do not benefit from discretionary powers available in the judicial process to nearly the same extent as Pakeha. The courts are seen to be clearly monocultural. All their trappings, language and procedures are considered to deny Maori real access to justice. They are culturally biased and effectively exclude the whanau and favour those Pakeha who have status and power.
Though defendants are frequently Maori, juries are invariably Pakeha because of their proportion in the population and also because potential Maori jurors are often challenged.
Moana Jackson believes it unfair that Maori cannot be heard by an all Maori jury, when Pakeha offenders are often tried by all Pakeha juries and never by all Maori Jurors.
What about the Treaty of Waitangi?
Granting of kawanatanga.
The constitutional context for Aotearoa/New Zealand is based upon the special relationship between the Maori and the Crown as sovereign signatories of the Treaty of Waitangi. Therefore any legal structures are only relevant if they recognise that relationship.
The Crown has consistently maintained that the Maori gave up the right to develop their own system of law, with the cession of sovereignty, in Article 1 of the English version of the Treaty.
In the Maori version, which was signed by 482 out 512 Maori signatories to the Treaty, Article 1 granted no such tino rangatiratanga, but only that kawanatanga or governorship that Maori understood was necessary for the Crown to control British subjects and protect the Maori from Pakeha usurption.
Retaining Tino Rangatiratanga.
Article 2 of the Maori Version of the Treaty guaranteed te tino rangatiratanga or "absolute authority" of the Maori over all things Maori.
To Maori this means more than just control over their natural resources. It means legal and political authority over those people who are the beneficiaries of the natural resources.
Without the independent right to define justice and determine how it might be achieved under Te Tino Rangatiratanga, Maori remain trapped in injustice.
For Maori justice can only be achieved by accepting that Tino Rangatiratanga is a political authority. Unless Tino Rangatiratanga is allowed to shape an appropriate justice system for Maori, then it will remain that "Maori and Pakeha are one, and that one is Pakeha"
Protection of ritenga.
Article 4, which is part of the oral tradition of the Treaty, was a guarantee of Hobson of religious freedom and protection of their ritenga or customs*.
Therefore, if the idea of tangata whenua status, and the guarantees or rangatiratanga and ritenga in the Treaty are to have any meaning, it follows that Maori based law and judicial structures are a natural development of the rights implicit in those concepts.
*The Catholic Bishop Pompallier and the Anglican Missionary William Colenso recorded a discussion on what we would call religious freedom and customary law. In answer to a direct question from Pompallier, Governor Hobson agreed to the following statement. It was read to the meeting before any of the rangatira has signed the Treaty. " the Governor says that the several faiths of England, of the Wesleyans, of Rome, and also Maori custom shall alike be protected by him."
Does a parallel justice system operate in any other country?
Native America still holds significant independent jurisdiction. They continue to maintain exclusive jurisdiction over tribal members and the right to prosecute them for crimes committed against other indigenous Americans.
There are some exceptions such as prosecutions for murder, smuggling, kidnapping and arson, which are heard by the mainstream judicial system. Tribes sometimes have control over crimes committed by one of their own against a person of another ethnicity, but not over those committed by non-Natives against a Native, even if committed on Native land.
The American Congress has recognised Native tribes as distinct political entities whose power derives from their inherent sovereignty. Just who is Native is a political matter, but generally individuals must have some Native blood and must be recognised by a tribe or society of Native people.
The principle of tribal authority is upheld. Their courts may impose traditional tribal sanctions by way of punishment, or they may follow the mainstream American system.
The Navaho system.
Perhaps one of the best examples is the Navaho system who have their own police force, courts and prisons. Jurisdiction is shared with the state, (e.g. the Major Crimes Act states which crimes must be tried in the federal courts) but the philosophy and procedure is Navaho.
Rights of Indigenous Peoples.
The UN Working Group on the draft Declaration on the Rights of Indigenous Peoples has recognised the right of indigenous peoples to their own justice system. The proposed Article 33 states,
"Indigenous peoples have the right to promote, develop and maintain their institutional status and their distinctive juridical customs, traditions, procedures and practices in accordance with internationally recognised human rights standards. "
How would a Maori criminal justice system come into being in Aotearoa?'
More than cultural sensitivity.
In order to reclaim and implement a Maori criminal justice system, the status of the tangata whenua in Aotearoa must be recognised and affirmed, unconditionally.
For justice to be upheld through the Treaty, it is not enough to acknowledge cultural difference while subjecting Maori to the supremacy of monocultural policies.
It is insufficient to offer watered down cultural sensitivity in a legal system that has been imported and is now controlled by a predominantly patriarchal, upper middle class sector of Pakeha society.
Need for resources and support.
Maori have an inherent right as guaranteed by the Treaty to operate their own criminal justice system. In affirming that right we must ensure that Maori have sufficient resources and support to make such a system work.
A Maori criminal justice system for today will not be created overnight. Neither will it be without its difficulties and problems throughout its initial inception and subsequent implementation.
Maori do not deny the practical difficulties involved. But this does not override the validity of their right to re-establish their own ways of monitoring the conduct of their wrong-doers. If that right is acknowledged then the necessary research and planning can begin.
Marrying the old with the new.
The development of a Maori criminal justice system will marry the old with the new. Tikanga, that has been practised and handed down from tupuna, must be given expression to and made relevant within the context of today's Aotearoa. Underpinning cultural tenets of collective responsibility, of spiritual and physical balance, such a system will be enhanced by the learning gained from the experiences of parallel justice systems operating elsewhere.
Rather than tribal courts as in the case of Native American nations, it may be more appropriate here to speak of runanga. The manner in which such runanga would be established, their composition, their jurisdiction, their laws, and their methods of operation are matters requiring careful research and consideration.
It might be, for example, that if a wrongdoing is admitted, the dispute is mediated by a marae-based runanga, with perhaps two kaumata and one representative each from the victim and offender's whanau. They would settle the penalty to be met by the offender and his whanau, as well as deciding on a process of rehabilitation. If the offending was not acknowledged, the runanga could call evidence to assess liability, with the whanau being compelled to comply with any order for redress.
For such a system to work, it must work for Maori and it can only work for Maori if it is a distinctly Maori criminal justice system.
The call for a Maori criminal justice system is not about a simple yearning for the past.
Rather it comes from a realisation that in the wisdom of the past are the ideals which can be adapted to yield justice today. It is sad that so many dismiss the matter out of hand. The requirements of the Treaty together with the reality of Maori offending today, demand a reasoned discussion of the issue.
"Ko te waka hei hoehoenga mo koutou, i muri ahau, ma te ture - ko te ture ano te ture e aki."
"The canoe for you to paddle after me is the Law. Only the Law can combat the Law."
na Te Kooti. Te Arikinui. 1893