Essay – Parallel Systems

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• Since the Europeans first arrived in New Zealand over 200 years ago, Maori have been immersed in a European system of justice.
• Moana Jackson proposes that the contemporary system of European justice is ill suited to Maori, and that a parallel system of justice based on traditional Maori principles would be more appropriate.
• This idea has some merit, however for it to become established and workable in New Zealand society many issues would need to be overcome, and the resulting overhaul of the current system would in some instances create more problems then it would solve.
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• Jackson argues that Maori did not envisage a mono-legal system when they assented to the Treaty of Waitangi and therefore Maori should be a self regulating entity.
• It is true that a distinct theme in the oral discussions surrounding the signing of the treaty was the concept of Maori retaining their own native laws and customs.
• They believed that specifically Article Two guaranteed this.
• It can be argued that this doctrine of “He Iwi Tahi Tatou” (“we are now one people”), which was enforced by Hobson at the signing, celebrates this idea of integration and provided motivation for both Maori and Pakeha to sign the Treaty.
• It therefore can be submitted that the creation of a separate and parallel legal system for Maori contradicts the very concept of ‘oneness’ that is the spirit of our Treaty.
• Creating a new system of justice for roughly one seventh of the population would be detrimental to the public’s satisfaction that the force of law is being applied with equality.
• It could be argued that these two systems would draw a distinct and factional line, separating the two races which would be a hindrance to national unity.
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• However, New Zealand faces some harrowing statistics in relation to Maori crime rates. The Report for the Over-representation of Maori in the Criminal Justice System delivered by the Department of Corrections in September of 2007 provides damning evidence that Maori are more likely to be engaged in criminal activity than other ethnicities.
• Although they form just 12.5% of the population aged 15 and over, 42% of all criminal apprehensions involve a person identifying as Maori, as do 50% of all prisoners.
• 59% of Maori prisoners reappear in prison two years after their release. From this evidence it is apparent that despite the underlying principles of the Treaty, Maori and the rest of New Zealand are anything but one people.
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• The report refuses to simply dismiss the Maori race as constitutionally “criminally inclined”, instead pointing to the fact that this gross-overrepresentation could be attributed to bias within our legal system, and negative early age development factors such as family violence, as not only are Maori the most likely race to be convicted of a crime, but they are also the most likely to be victims of such activity.
• Jackson contends that this is because Maori are taught from an early age that their own culture is second-tier as they are exposed to an institutionalised belief in New Zealand society that the British system of law and education is superior.
• This fosters a sense of cultural loss in adolescents. Conversely, both sources acknowledge that high rates of Maori recidivism can be attributed to factors other then the failings in the current New Zealand legal system.
• It can therefore be argued that Jackson’s proposal of opposing systems of justice would be akin to placing a Band – Aid over a bullet hole. On the surface it would appear to be fixed, however underneath, the wound would just be getting worse.
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• Jackson asserts that the contemporary system of justice is ill-suited to Maori because it is preoccupied with proving guilt and punishing the culprit.
• In contrast, the traditional Maori system of justice was victim based, at its root was the concept of ‘muru’, which focussed on the restitution of the victim from the offender and his family.
• Jackson’s proposal is a return to this more traditional process.
• Jackson refutes that this separation would scream apartheid.
• However, this contention ignores the fact that the separation of Maori from our traditional forms of European justice is at its very core separatist.
• Jackson refutes this because at the heart of his argument is that the process of justice is irrelevant if the outcome is the same.
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• Jackson’s proposed system is based on what was applied to the Navajo Indians in America.
• His attempt to dispel logistical fears by basing the system on something that is already in place and working well is flawed, as the population of Maori to non-Maori in New Zealand is much higher then that of the Navajo, and the Navajo live on conservations where the community is largely homogenous, compared to the current assimilation of Maori into New Zealand society.
• This would give rise to the issue of defining who is ‘Maori’.
• It would be uncertain what proportion of Maori ethnicity would be required to go through this alternate system of justice, and whether or not this would be a measure of ‘blood’ or cultural identification.
• Also, this system is arguably organised in such a way that it reinforces the perception that the current system is superior: everyone but Maori will always have the choice of what system to go through regardless of who the victim is.
• Even Jackson himself states that major crimes would always be tried in state court and not through the proposed Maori process.
• Surely this would serve only to further entrench the underlying belief that the current system if better and ultimately superior to what is being suggested for Maori?
• This can in no way encourage Maori respect for the law and lessen the amount of Maori offending under it.
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• It would therefore seem prudent that steps are taken to address the underlying causes of Maori recidivism and discontent before a parallel system is even considered.
• Alternate justice programs such as Whanau Awhina have had some success in reducing rates of reoffending among Maori hard-line offenders through community accountability.
• Programs such as this can continue to exist within the parameters of the current legal system and given extra funding may allow them to experience exponential success.
• Also, proposals to include recognition of pre-existing Maori laws in our legal system is important for cultural conciliation.
• This we can already see examples of through the continuing Treaty settlements through the Waitangi Tribunal, and how this goes along way to sooth Maori grievance.
• Such measures would be of far more value then an expensive and logistically difficult overhaul of the current system.
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• Jackson therefore highlights the problems with the current justice system for Maori but does not provide a practical solution, causing more problems then it would solve.
• The evidence examined shows our current system is not the sole responsible cause for the over representation of Maori in the criminal system.
• However, Maori values and customs should be included in our justice system to support national unity.
• Separate systems would only further reinforce the difference between the two races, and have a divisive nature of New Zealand society.
• It is important that we uphold the principle of ‘He Iwi Tatou” and further strive to become a more accepting and bicultural nation through ensuring that both cultures are served by our national legal system.