Justice is a very simple and natural idea. It is something anyone can recognise. Victims of crime recognise justice when it is done. Ordinary people recognise justice when it is done. And most of the time, an offender will recognise it too.
Yet our modern criminal justice system, even when it works, very rarely leads to real justice.
The reason is that our modern, Westminster-based legal system is based not on justice, but on laws. If I stab someone, the problem, according to the justice system, is not that I hurt them, but that I broke the law. ‘The Crown’ is the complainant, the victim is just another witness, and if I can prove that I didn’t, technically, break the law, then I will go unpunished.
This is not real justice.
It is not real justice because modern court cases are aimed at proving guilt or innocence according to a written set of laws, rather than finding the truth of the matter. It is a system that is unsatisfying for victims and that does even not prevent criminals reoffending. It is a system without life.
There are clear alternatives to such a system. Some years ago, a lawyer here in New Zealand, Moana Jackson, wrote a report entitled ‘Maori and the Criminal Justice System’ calling for a parallel Maori justice system. It was widely condemned by the government and the media. Ministers were quick to scoff, in mock outrage, that there could not possibly be one law for the Maoris and one for the Pakeha (New Zealanders of European descent).
Of course, the government had reason to be worried. Community control is a subversive idea. It undermines the legal fiction that the Crown is the sole sovereign power. When Moana Jackson wrote his report, sovereignty was exactly what he was talking about. But it was Maori sovereignty – the right of the Maori people to choose their own path.
And the Maori path, when it comes to the issue of justice, is one which modern New Zealand should learn from. It challenges the monolithic, monocultural power of the Crown, which says ‘one size fits all’.
The current justice system doesn’t work – perhaps a Maori version should be given a chance.
Maori justice is essentially restorative justice, and restorative justice can lead us forward. It is victim centred; it involves the community; and it is about offenders taking responsibility for what they have done.
The modern justice system is offender-focused. It is preoccupied with proving guilt and punishing the culprit. Questions such as victims' rights are extraneous. Restorative justice is victim-centred. It recognises that when a crime has been committed, the main problem is that someone has been hurt. The priority is to heal the harm that has been caused, by putting the victim at the centre of the process, by allowing them their voice in the process and by involving them in the decisions made.
Restorative justice, on the other hand, involves, or can involve the entire community.
An offender is more likely to feel remorse if confronted by people he knows and respects rather than a judge. Communities are able to find more appropriate and creative solutions for injustice. All this, and more, the traditional Maori justice system can teach us.
Finally, restorative justice does not ask ‘how do we punish?’, but instead asks ‘how do we get the person to take responsibility for what they have done?’ Paying a fine, doing periodic detention or even going to prison are easy options for many people. They are all ways that offenders can avoid taking responsibility, because they never have to face the human reality of what they have done.
Prisons have been called a university for criminals. Young people go in for unpaid fines, often for victimless crimes such as cannabis possession, and they come out with a degree in burglary or worse.
We seem happy to build new prisons, but where are the new polytechnics, universities and youth centres that could tackle the root causes of these crimes?
I'm not saying that the answer is to tear down all prisons. Far from it. There are people who are dangerous to society, who the community will want to keep locked up. Prison can also be part of a sentencing package under restorative justice. But the vast majority of people in prison are not violent, and do not need to be there.
What they do need is to be brought face to face with the human reality of the harm they have caused, and they must be given an opportunity to rectify things.
This would go a long way to help restore the various balances that are lacking: the balances within the victim, between the victim and the offender and within the offender. Traditional justice systems, like that of Maori people, tend to recognise this far more than our modern legal process.
It is to such systems that we must now turn for answers.
Nandor Tanczos is a Member of Parliament for the Green Party of Aotearoa/New Zealand.
This article first appeared in the Ecologist June 2000