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The conundrum of a separate Māori justice system

26 May 2022

| Author: Chris Trotter

How would a Māori justice system deal with ram-raiders? The question is not intended to be facetious. Ram-raiding is precisely the sort of high-profile criminal offending that is most likely to test the efficacy – and acceptability – of a legal system dedicated to delivering justice according to indigenous principles.

The most stringent test, central to all justice systems, is whether offences committed by the members of one community against the members of another community can be adjudicated successfully by any agency other than an at-least theoretically impartial state?

Historically, the evolution of New Zealand’s imported justice system was driven by this very question. In its earliest iteration, it was a largely village-based system. Those accused of criminal behaviour would have been apprehended, interrogated, prosecuted, defended and ultimately judged and punished by their neighbours.

The accused would know, and be known by, the alleged victims of the crime who would have a major say in any punishment handed down. Much would depend on the character of the accused. Could he or she be trusted not to offend again? Or was the accused universally regarded as incorrigible, meaning his or her future was likely to be bleak.

The intimacy of this system has a great deal to recommend it. It embodies the true meaning of being judged by our “peers” – which is to say by people like ourselves, among whom we wish to go on living and who are as well acquainted with the good in us as they are with the bad.

Significantly, the idea of a Māori justice system relies heavily upon a similar degree of intimacy. Marae-based, it is envisaged as involving both the perpetrator’s and the victim’s whanau, hapu and iwi in the determination of guilt and innocence; deciding what, if any, punishment should be meted-out; how the perpetrator and his or her victims might be reconciled; and what restitution is due to restore the moral equilibrium of the community.

But, what if the alleged perpetrators have offended against people who are not part of their community? People they do not know and who do not know them? People connected to them by only one thing – the crime?

In such circumstances, intimacy and informality are likely to strike at least some victims as wildly out of place. New Zealand’s family group conferences record failures as well as successes in the fraught business of bringing people from radically different communities together for the purposes of reconciliation and restitution.

Monopoly on justice

In feudal England, crimes committed outside one’s immediate community – cattle-stealing, poaching – were dealt with by the local aristocrat or by officials acting in his name. Though these lords pretended to impartiality, the potential for gross miscarriages of justice was considerable.

Above the aristocrats, however, there was only the king. Small wonder then, with the natural direction of jurisprudence being forever onwards and upwards, that as the centuries passed, the administration and delivery of justice became monopolised by the Crown.

Currently, a young Māori ram-raider would stand trial in the Queen’s court and the justice delivered to him and to his victims (who, for the sake of this example, we shall make the Indian-New Zealand owners of a corner dairy) emanates from the Crown.

Certainly, every effort will be made to understand the background of the offender. He will be spoken for by whanau, hapu and iwi. The judge presiding over the trial may even be of Māori descent.

In the end, however, the delivery of justice is required to be impartial and according to law. If not, then in this instance the relationship between the Māori community and the Indian-New Zealand community could only deteriorate and with it the public’s trust and confidence in the judicial system itself.

In the context of the ongoing debate over co-governance, the delivery of the kind of justice acceptable to all New Zealand’s many communities is fast becoming acutely problematic.

Under whose rubric, for example, will justice be delivered? In most courts, conspicuously positioned above the judge’s seat is the New Zealand coat-of-arms. The shield itself is flanked by two figures: one Pākehā, one Māori and surmounting them both is the Crown.

This, in heraldic terms, is a powerful representation of what used to be the generally-understood meaning of the Treaty of Waitangi: one nation, comprised of two peoples, all of whom acknowledge the sovereignty of the Crown.

Today, the official view is that this was never the arrangement agreed to at Waitangi on 6 February 1840. Sovereignty, it is now claimed, was never ceded to the British Crown. By what right, therefore, does the Crown presume to dispense justice to the descendants of those who never surrendered their tino rangatiratanga?

Abolish prisons

This is much more than a purely academic question.

The co-leaders of Te Pāti Māori, Rawiri Waititi and Debbie Ngarewa-Packer, have both affirmed their support for the abolition of the New Zealand prison system – a radical proposition which surely entails an equally radical revision of our justice system and the body of law it administers.

In this context, it is difficult to imagine justice continuing to be dispensed under a single rubric. Te Pāti Māori’s position makes sense only in an Aotearoa blessed with a dual justice system – one for Pākehā, one for Māori.

In the evolution of the English legal system, this would take us back to the period in which the universal Catholic church could try its own clergy in its own courts. This dual system lay at the heart of the epic quarrel between King Henry II and his Archbishop of Canterbury, Thomas Beckett.

Ironically, the He Puapua report, written at this government’s behest to provide it with a road-map to the fulfilment of the UN Declaration on the Rights of Indigenous Peoples, relies upon the same sort of moral suasion once exercised by the Pope. No government wants to be “excommunicated” by the United Nations.

There is, however, a reason why the figure of Justice is depicted blindfolded, with a pair of scales in one hand (to weigh the evidence) and a sword in the other (to manifest the wrath of the wronged state).

She is not permitted to see who stands before her, because nothing must be allowed to sway her judgment. Not the richness of the accused’s attire, nor the colour of his skin.

Which brings us back to the question we began with: how to adjudicate successfully the crimes committed by the members of one community, against the members of another.

How will Pakeha citizens react if the trial of a person accused of ram-raiding one of their businesses takes place in a court run by and for Māori? If the presiding judge is positioned beneath a traditional Māori figure, in a court where the Crown is entirely absent?

The obvious response from tangata whenua is that this is what happens every day to young Māori offenders.

Are they not tried in a room where the only reference to their people is an heraldic Māori warrior positioned under the crushing weight of a huge and heavy crown? Are those defendants not expected to make their case in another’s language, using another’s laws, and all according to the tikanga of the colonial power that stole their land and traduced their mana?

But, if that is the point we have reached in Aotearoa-New Zealand, then neither the preservation of the colonialist status quo nor the creation of a dual justice system are peaceful options.

Figuratively-speaking, the Māori warrior on our coat-of-arms has little choice but to lift up his taiaha and topple the white-robed Pākehā woman and her flag – followed by the Crown. And her only choice is to try to stop him. ■

Chris Trotter is a political commentator of 30 years’ experience. He is the author of the Bowalley Road blog ■

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