Alternative Courts

The International Association of Women Judges (IAWJ) conference is held every second year, and in May 2021 was held in Aotearoa, New Zealand. One of the important panels of the conference was “Alternative Courts”, where a number of speakers presented on alterative courts that operated within their respective jurisdictions, taking a tailored and needs-based approach to justice.

The first speaker to present on alternative courts was Justice Syed Mansiir Ali Shah, a judge of the Supreme Court of Pakistan, who discussed the first gender-based violence court of Pakistan. He explained how the Constitution of Pakistan does not differentiate between men and women, and that a gendered approach does not sit well with those values. Law, the Judge said, can be an emancipatory tool and it is important for the judiciary to challenge established views by asking why we have them, where they come from and how simplistic assumptions can be eliminated. Regular courts in Pakistan have not served women well, particularly in the domestic and sexual violence sphere. The Gender-Based Violence Court addresses this by changing the environment, with guidelines and practice notes and specialised procedures for victims and witnesses. The Judge explained that changing the environment can make a large difference in terms of the number of women that come forward, and their experiences when in the courtroom.

Justice Syed Mansiir Ali Shah’s presentation was followed by Judge Marlo Malagar of the Philippines, who discussed the impact of incarceration on women and alternatives. She noted that women often lack appropriate care when in prison and have specific needs. Her view was that for women custodial sentences should not be the default and should be imposed only as a last resort. The average female offender often had children or was responsible for dependent relatives. Women were also more likely than men to develop mental health issues in prison. Alternative sentences like suspended and deferred sentences in addition to community-based treatment were excellent and gender-responsive options. Finally, Judge Malagar noted the impact of the COVID-19 pandemic on incarcerated women, with the distance from loved ones making imprisonment an even harsher punishment.

The need for a solutions-based approach was also highlighted by Magistrate Pauline Spencer of the Magistrates Court in Melbourne. She explained that often the things that drive people to court are not legal. In response to offenders’ needs, a number of specialist courts were developed including the Mental Health Court, the Family Violence Court, the Drug Court and the Koori Court. A range of court support services work with those courts. Magistrate Spencer emphasised the need for an integrated and innovative approach where the benefits of all courts can be harnessed for a person with numerous needs, for example, a Koori individual with mental health needs. Some important reflections of Magistrate Spencer were the need to act without waiting for resources, to collect data and to design support services in an integrated way so all an offender’s needs can be addressed.

Judge Denise Clark then discussed the operation of Rangitahi Courts in New Zealand, where the Youth Court sits on a marae in various locations around New Zealand. She noted that as more than 60% of rangitahi in the Youth Court are Māori, a culturally sensitive approach that recognised who the people were before the Court was critical. The process in the Rangitahi Court is about the rangitahi and how they can best be supported by their whanau and the community to address their offending. An important aspect of the Court is that it is not a separate system, but an adjusted system that is culturally appropriate and incorporates tikanga Māori into its processes. The Rangitahi Court has experienced successes that most likely would not have occurred in the ordinary Youth Court, and the responses from the rangitahi involved have been positive and promising for the future.

Another New Zealand alternative court discussed was the Youth Drug Court. Judge Jane McMeeken spoke about that Court, which operates, like the Rangitahi Courts, under the Oranga Tamariki Act. She explained that the Youth Drug Court does not have any independent funding or a budget and operates as part of the Youth Court. This means that the Youth Drug Court relies on other Government agencies and their goodwill, which is a challenge. One important factor emphasised by Judge McMeeken was consistency in personnel, so Court staff get to know the young people involved and vice versa. It was also important to listen to experts such as addiction and diagnosis specialists and to use that knowledge to achieve the best outcomes for young people before the Court.

The final speaker was Judge Rosella Papalii, who discussed the Drug Court in Samoa. That Court is based on the American model also adopted in New Zealand but modified to Samoa’s cultural context. This meant it was important to work within the communal way of life in Samoa and the importance of the church. The programme implemented is 12 weeks long. An important aspect of that programme is that participants may stay at their villages and attend the programme, thus engaging community support and the input of matai. One thing emphasised by Judge Papalii was the importance of buy-in and support from the community to achieve long-term positive change for offenders and to build stronger and more resilient communities within Samoa, according to Samoan values.

A strong theme conveyed in the presentations of all speakers was there will be many situations where the traditional justice system is not suited to the needs of offenders, victims or communities. Particularly in situations where there are other drivers of offending like drug and alcohol dependency, a punishment‑based approach that does not take into account the offender’s needs is bound to result in a cycle of offenders coming before the courts and being incarcerated without addressing the true causes of their behaviour. An important theme emphasised by many of the speakers was the involvement of the community and families in building resilience and breaking the cycle of offending. Further, treatment programmes should not operate in silos; if the best outcomes are to be achieved for offenders, victims and their families, the resources of the State need to operate together to identify the needs of an individual and to ensure those needs are appropriately addressed.


Reported by Lucy Kenner & Hannah Short