Restorative Justice – The Pacific Way

Paper presented at the 7th International Conference on Prison Abolition

Barcelona, Spain, 17 – 19 May 1995

Jim Consedine

Restorative justice is a philosophy that embraces a wide range of human emotions including healing, mediation, compassion, forgiveness, mercy, reconciliation as well as sanction when appropiate. It also recognises a world view that says we are all interconnected and that what we do be it for good or evil has an impact on others. Restorative justice offers the process whereby those affected by criminal behaviour be they victims, offenders, the families involved or the wider community, all need to have a part in resolving the issues which flow from the offending. This provides a recognition to a degree at least that all things are interconnected.

Retributive justice on the other hand, based primarily as it is on the punishment of the individual, reflects some of the most horrific aspects of the breakdown of our understanding of the inter-dependence of life. At its worst, it takes people from their social environment, parades them publically in a court dominated by alien symbols, and through imprisonment, condemns them to a period of months or years of deprivation by surrounding them with a culture of simmering violence and macho values. They are then subjected to an abuse of their human dignity through endless days of mindless tedium.

In the Pacific it is traditional for a criminal to be forgiven by a victim and saved from harsher punishment. Reconciliation occurs throughout the Pacific and is held up by many as an example the ‘developed’ world should seek to emulate.

THE PACIFIC WAY

The most ancient of all restorative traditions in the Pacific is that practised by the Aborigines of Australia. For 40,000 years they have successfully healed, reconciled and where necessary applied sanction in their efforts to restore tribal and family wellbeing. Obviously only a few of their many traditions can be touched upon in a short paper.

Research indicates there are generally two categories of offending within the tribe or clan. Breaches of sacred law including regulations, taboos, and codes of behaviour which are thought to have a clearly supernatural basis, form one clear grouping. The second comprises offences against people or property. Given the variation of tradition that exists among the 700 tribal groups, it is difficult to pinpoint consistently applied processes whereby disputes are resolved.

group gathers and a hush descendhe Wawalag people noin s on the crowd in recognition of trouble brewing. Suddenly those who are in dispute begin to exchange words. Others gather round, wooden spears in hand. Finally leaders intervene often using diversion and jest as a means of bringing a peaceful settlement. General loud laughter from everyone keeps those angry from commiting aggressive acts. In this way, the offended person cannot cause trouble and eventually peace is restored.

In the eastern and western Arnhem Land magarada or manejag is practised. There is a judicial quality in this in so far as the major aim is the settlement of a dispute. All interested parties are represented. But before the meeting the accused has already either admitted culpability or been judged guilty. Acceptance of responsibility or a guilty plea is an important feature of all restorative systems.

The two opposing groups, painted in white clay, stand just out of spear throwing reach. Members of the aggrieved party advance towards the opposite side in a totemic dance, then walk back again. The others do the same. Now they are ready for the ‘duel’. Members of of the accused group run irregularly across the ground. Spears are flung at them. They can dodge but not return the spears or the accompanying abuse. After a pause, the accused man runs across the ground. This time the spears are flung after him one after the other.Finally the accused man’s party dance across to their opponents. The aim is to spear him in the thigh whereupon the matter is at an end, and both groups join in dancing.

This process has it counterparts in other regions, with a slightly different emphasis in each case. Thes practises include the conventional thigh wounding of the Western Desert, and among the Maryborough people of Queensland. This type of settlement lacks the formality of legal proceedings. The key is that both parties are seeking reconciliation and restoration of normal life.

Maori, the indigenous people of Aotearoa/New Zealand had restorative processes in practise for 1000 years before being colonised by the English in the 19th century. Such processes were preserved under Article 2 of the Treaty of Waitangi signed in 1840 between most Maori tribes and the government of England. However only lip service was ever paid to such matters and it was the English retributive system of criminal justice that came to dominate.

Traditional Maori law was not an isolated set of rules but grew out of and was inextricably linked into the religious and hence everyday framework of Maori life. Law reflected the relationship of the people to their gods and with their ancestors. Maori lived with the law, not under it.

Because individuals were linked by whakapapa or geneology with their whanau or family and their iwi or tribe, so were their actions the unavoidable responsibility of the wider group. An offender could not be isolated as being solely responsibile for wrongdoing. A victim could not be isolated as bearing alone the pain of an offence. There was collective rather than individual responsibility, a sense of indirect as well as direct liability.

In more modern times, these same processes have been adapted. One young woman was raped by three members of a Maori gang. It was agreed by all that the matter be dealt with in the traditional way. About 50 gathered to hear the case on a local marae. After hearing the young woman’s story, the hui reflected on what should happen to the three young men. Then the offenders were allowed to speak. Their remourse was overwhelming, their desire to change and do reparation genuine. They admitted the rape. Pills and alcohol had obviously been a contributing factor, though they claimed no mitigation from that source. They experienced tremendous shame in front of their family, their peers, their tribe. They vowed never to reoffend in any such way again.

The young woman also spoke. She said that she forgave them. Later in explaining why, she said that for once in her life she had felt in charge of a major situation. She felt she could be generous, given the sorrow that they had expressed. In concluding, the elder who presided said that they had been shamed before all whom they loved, and there could be no greater punishment in Maori society than that. The young men were placed under close supervision for their future behaviour. Each had to pay compensation weekly to the young woman for six months. None of the men subsequently reoffended.

Such cases only go to highlight how effective restorative processes can be when properly resourced and practised.

These modern examples of restorative justice reflect a philosophy practised by indigenous peoiples for thousands of years. It is not suggested that that we should return to all the actual processes of the past, valid as many of them may well still be. What is important to recognise is that retributive justice is failing in practically every way and in order to build a more positive system of criminal justice today, the philosophy of these traditional systems should be recovered to underpin appropiate modern processes. This has already been done successfully with Youth Justice offenders in New Zealand.

For more serious offences, differing processes were followed. For example, after a situation of child abuse on the East Coast, processes were followed in which both the offender and the young woman were restored. The tohunga (priest) came and prayed special prayers for her restoration of spirit. Then regularly over a period of two to three months, the tohunga would go with her or her family to wash in the river – ritual washing to heal the spirit. The offender was banished from the tribe and sent to another area for a two year period. He had to work out his punishment as a labourer. At the same time he went through a process of anger management with an elder. He was forced to face the hard questions. Why did he abuse? How could he control it? Did he not appreciate the sacredness of the person he abused? Why did he not respect women? What steps did he need to take to see the action wasn’t repeated? Eventually when he had satisfied his mentor, he was allowed to return home.

The Western Samoans have had a tradition of restorative justice which stretches back into antiquity. Since Independence in 1962, Samoa has had to constantly face the dilemma of the traditional versus the modern way of doing things. The old way was that all law and order matters were handled by the fono, the gathering of the heads of all the families of the village.

Recently, for example, three Western Samoan students attacked a Fijian student in Apia and viciously assaulted him. The Fijian magistrate delayed sentencing three times to seek confirmation that the victim had forgiven his attackers. Simultaneously, Samoan residents in Fiji gathered to support the offenders and presented gifts of appeasement to the chiefs and elders of the victim’s tribe. Offers of compensation were made. One of the attacker’s families performed an ifoga outside the prime minister’s office. In this complex Polynesian tradition, an offender’s entire extended family will sit with mats over their heads outside the home of a victim in a display of submission. This act of self abasement almost always leads to reconciliation. Once forgiveness was forthcoming, the judge gave each a conditional discharge for 18 months, on bonds of $F2000 ($US1500). He did not enter convictions. Meanwhile Western Samoa sent a government minister to apologise personally to the people of Fiji for the attack and to offer to pay the medical costs of the victim.

There was another vivid example of Pacific forgiveness in recent years in Auckland when a Samoan motorist knocked down and killed two little Tongan boys and failed to stop after the accident. Even before an arrest was made, the families of the boys announced they had forgiven the driver, whom they later met and embraced.

A Suva magistrate pointed out recently that criminal law is basically designed to protect society. If the aggressor and victim have reconciled, the function of criminal law has been achieved.

As in other Polynesian cultures, it is the family who share the responsibility for offending. And for making reparation. Fines are paid the same daY by the family acting together rather than by the offender acting on his or her own. Apologies – ifoga – are also an important part of many proceedings. The fono acts as local lawmaker and judiciary. But it follows a system that allows for apology and reconciliation.

The Hawaiian people solved their disputes through a restorative process called Ho’oponopono. Everyone in a traditional Hawaiian family is expected to work for the good of that family. Aloha is the spirit that guides their thinking. At a Ho’oponopono all must commit themselves to a peaceful solution to any dispute being heard. The truth must always be told and confidentiality respected. The gathering was presided over by a haku, a respected leader, and placed very much in the context of a spiritual occasion. Confession, apology, forgiveness and repentance were at the heart of the traditional process. Offenders had to be willing to seek forgiveness for their deeds while the victim must be able to truthfully forgive. The gathering continued until this point was reached. This is where a common commitment to be part of the solution is important, and where the family (ohana) must focus its energy to encourage mutual forgiveness for the sake of its continued wellbeing. When this point is reached, kala (freeing or forgiveness) is ritualised, and a celebrationary meal held.

In traditional Solomon Islands society where 87 languages are spoken among a population of around 300,000 people, village elders provided both the law and order. The whole community could be involved in deciding appropiate action for offenders. Compromise through mediation usually resulted in acceptable solutions. Most disputes, crimes or offences were settled partly by the payment of compensation in shell money, pigs or other food stuff. This would be paid by the offender and his or her relations who would pool the required resources to be given to the offended party. The amount of compensation was determined by the seriousness of the offence. Today modern local courts remain strongly influenced by the traditional philosophy.

The Torres Strait Islanders off northern Australia have a system of Island Courts, administered by elders, which continue to function in the traditional ways for all but the most serious offences. They continue to adjudicate in major areas including land tenure, adoption, customs, and the resolution of disputes between and among individuals and families, and are responsibible for the maintenance of good order among the 6000 inhabitants.

In Papua New Guinea hundreds of Village Courts have replaced the traditional village tribunals since Independence but follow the same philosophy of restoration and reconciliation through compensation. The adjudicator, a local person chosen by the people of the local community, has a primary function to ensure peace and harmony by mediating in an endeavour to obtain a just and amicable settlement between parties. Village Courts have no jurisdiction however to deal with the most serious offending – rape, large scale fraud, murder.

In Village Courts there is no distinction between civil and criminal cases, and the adjudicator may order compensation or fines or community work. Mediation is an important traditional key to dispute resolution. Attached to the Village Court is a village peace officer whose primary role is to help the parties reach a settlement by mediation before the case comes to court. The court may sit in any place suitable to those involved. Village Courts generally have no power to imprison. Native customs of the time and place govern proceedings of the court.

Perhaps the most exciting development in Aotearoa/New Zealand in the past decade has been the institution of a restorative philosophy for youthful offenders under 17 years of age. Building on successful experimentation in the late 1970s and early 1980s, the Government passed the Children, Young Persons and Their Families Act in 1989 which introduced an intermediary stage of proceedure between arrest and sentence. That stage involved the holding of a Family Group Conference to which offenders and their families, victims and their supporters, the police, and where applicable a youth advocate and other specialists were invited. Guided by a mediator, the gathering, which could be held anywhere suitable, sought apology from the offender, and allowed time to hear explantions as to the reasons for the offence and the effects it had had on the victims. Seeking primarily to repair the damage done, consensus was then sought as to what to recommend to a judge in the Youth Court. Provided that all conditions of the recommendation were completed within a stated time, no conviction was entered and justice was deemed to have been done.

This system has won approval all over the world, and pressure is now building to trial some adult courts to ascertain its effectiveness there.

Conclusion

There is a Jewish proverb which says ‘without a vision, the people perish’. We need a quality of justice that acknowledges the centrality of and need to enhance and protect the common good, and that recognises the interdependence and interconnectedness of all things.

The law and criminal justice processes have key roles to play in this development by defining and protecting the common good and helping form the processes of social interaction. History is teaching us every day that if we continue to operate a criminal justice system oriented principally towards punishment based on vengeance and continue to ignore the opportunities that restorative justice offers, we will continue to reap a bitter harvest of high crime rates, fear and insecurity. The ‘Pacific Way’ seems a much more productive way.

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