THE PRESS SATURDAY, JULY 22, 1989. Justice for Maoris too

Press, 22 July 1989, Page 20

THE PRESS SATURDAY, JULY 22, 1989. Justice for Maoris too

The Attorney-General, Mr Palmer, has stoutly dismissed the idea of a s eparate justice system for Maori people. Pie has done so several times; but the no tic m refuses to go away. Support for the proposal is being given by Mr Moana Jackson, a lawyer who advocated a separate system in a Justice Department report, and who spoke in Christchurch recently. T he hunger strike being conducted by Mr Francis Shaw, who refuses to acknowledge tlae legitimacy of the New Zealand legal system and who wants his trial to be held under conditions of his own choosing, has drawn attention dramatically to the proposal. The acquittal of the Mongrel Mob members after a gang confrontation in Wairoa has also given rise to a call for a Maori justice system, though others have asserted that the Stai;e system has worked to their satisfaction. A fourth influence at work is the widespread m isunderstanding about the meaning of the Treaty of Waitangi and the mistaken view that; it states or implies some form of power sha ring or separate systems of government and 'justice. Some of the* advocates of a separate justice system for Maori people cite United States and Cana'di an practices. In fact, all the peoples of the United States are subject to United States J.aw for criminal offences and all the peoples of Canada have one law for criminal offences. Mr Shaw is charged with criminal offences. American Indians living on reservations in certain states of the United States have their own jurisdiction in some civil cases a,nd in some minor criminal cases; such jurisdiction as they have has to conform to United States law. There is no separate justice sys tem. Canad a has three aboriginal peoples, Indians, Inuit (who used to be called Eskimos)/, and Metis. Under the Indian Act, Indians on reservations have certain privileg'es over fishing and hunting. In Quebec, a different civil law, the code civil, is applied. Outside Quebec, French Canadians do not. have the option of having cases heard under the code civil. This even applies in New Brunswick where French Canadians are numerous. There is not the North American precedent for a separate justice system which sorrne people claim. The advocates of a separate or parallel Maori justice system do not generally explain how it would work. It is certainly difficult to conceive of such a system in practice. Would s uch a legal code have the mechanisms such <is an appeal procedure that are almost universally recognised as necessary for justice? The British-based system used in New Zealand allows cases to be taken to higher courts. Would there be the equivalent of a Privy Council for cases heard under a Maori system of justice? If a Maori system did not have an appeal procedure, someone accused of an offence might suffer a grave injustice and have no way of righting the wrong. That would offend not only the sensibilities of many New Zealanders but, internationally, would make New Zealand look primitive. The country' now rates well on human rights issues. Another difficulty lies in the laws themselves. Would there have to be, for instance, different laws relating to murder done by Maori people and by nonMaori people? Besides these practical difficulties, which would also bring about economic difficulties, social problems would arise. 111-feeling about separate justice systems would be inevitable among people of different ethnic origin. Race relations would deteriorate, causing huge problems throughout the,country. To have a parallel system would also breach the terms of the Treaty of Waitangi, the third article of which says in the English translation: “In consideration thereof Her Majesty the Queen of England extends to the natives of New Zealand her royal protection and imparts to

them all the Rights and Privileges of British subjects.” A translation of the Maori text of the article reads: “Here’s the third: This, too, is an arrangement in return for the assent of the Governorship of the Queen. The Queen of England will protect all the native men of New Zealand. She yields to them all the rights, one and the same as her doings to the men of England.” Both versions say, in effect, that the Maori people will be protected by the British system of justice. The legal system is committed to applying justice to both sides in a dispute; yet it takes away from the victims of offences the need or opportunity to react on their own behalf. An offence against a person as it is defined by law becomes an offence against the State or the community. Personal retribution is forbidden. This is central to law and order, as is the commission to the police to act against crime. The legal system embraces the hurt done or alleged, determines guilt or fault, and imposes punishment or engineers redress or rehabilitation. Logically, if racially separate legal and criminal justice systems were devised, the choice of system in any case would be made according to the race of the victim whom the system sets out to protect. Logically, the race of the offender would then be irrelevant. The idea flies in the face of common sense and equal justice for all; but that is where the proposal leads. Differing definitions of crimes in one community lead down the same path to nonsense and injustice.

Parallel but different systems of justice would be neither socially acceptable nor workable. They would not deliver justice. However, the justice system needs to be culturally sensitive. Suggestions have been made about ensuring such sensitivity and a number of measures have been adopted. Evidence may be given in Maori in courts; Maori defendants may have their whanau (extended family) in court; Maori people in Palmerston North have been consulted about the design of a courthouse there; in some family court cases, hearings have been held on maraes; judges have sometimes given sentences which they consider to be appropriate punishment considering the Maori background of the person being sentenced; Maori defendants can be given an option of not having a charge or a conviction recorded if they carry out community work on a marae. These are humane approaches and are accommodated within the existing legal system. Possibly more could be done. One suggestion is that criminal cases might be heard on a marae. That approach should be used sparingly, if at all. Tribal customs differ and Maori protocol rather than legal protocol would be expected to take precedence on a marae. The purpose of a court hearing is to reach a just verdict, not to observe customs, and the closeness of some Maori families and their identification with a particular marae could put barriers in the way of the administration of justice. Our justice system can be flexible, and no doubt could accommodate a number of other practices. For instance, in some land valuation cases a judge is advised by lay people; in the sentencing of some Maori offenders it might be possible for a judge to seek advice from a kaumatua, a Maori elder. This advice would relate solely to sentencing, and would have nothing to do with reaching a verdict. The judge would not be bound by the advice on sentencing. At present, judges hear reports from probation officers and others, which are taken into account in sentencing. It might be possible to use Maori elders in a similar official capacity. But changes such as this should be attempts to improve the common justice system all New Zealanders enjoy, not to set up another system.