Indigenous, Customary and Alternative Justice

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 sessions addressed how indigenous, customary and alternative justice interacts with, and may complement, the traditional legal system. This panel included the presentations of speakers from Taipei, New Zealand, Samoa and Vanuatu, who explained issues of indigenous and alternative justice in their jurisdictions.

The first speaker was Judge Yi-Ju Hu of Taipei, who discussed the interaction between indigenous tradition and modern law. She explained how these interests can clash in areas such as hunting and gathering and gun rights. In 2009/2010, the Supreme Court of Taiwan recognised for the first time the rights of indigenous peoples’ territory, by finding three men from the Smangus tribe not guilty of theft for attempting to remove a tree trunk felled during a typhoon. Judge Yi-Ju Hu noted that while legislation covering wildlife conservation and gun control permit indigenous peoples’ right to hunt and decriminalise their possession of guns in some contexts, indigenous people are still routinely penalised. The Judge finished by questioning whether legal pluralism may be a better solution, given the need to find balance between indigenous rights and environmental protection.

In the New Zealand context, Judge Greg Davis discussed the Matariki Court, which incorporates customary Māori concepts into the courtroom. The Matariki Court does things differently. For example, the offender’s family is brought into court, the offender sits at the same level as the judge and prosecutor and kaumatua guide the Court in how proceedings are conducted. Court proceedings begin with speeches of welcome. The effect of these changes is to alter courtroom dynamics in a way that is appropriate to Māori and incorporates tikanga. Judge Davis explained how information can be obtained from family members in the Matariki Court that would not be forthcoming in ordinary courtroom settings, and that the collective knowledge of an offender’s whanau can tell the Court more about the offender than any professional report-writer. It is important to note that the Matariki Court is not a “separate” legal system for Māori. Rather, it operates within the New Zealand legal system, but does things in a way that is culturally suitable to the needs of Māori offenders.

The Rangitahi Courts initiative was then discussed by Judge Carolyn Henwood and Judge Alayne Wills. The Rangitahi Courts sit on maraes and, like the Martariki Court, operate within the framework of New Zealand law to deliver culturally appropriate processes and outcomes. Rangitahi Courts sit within the youth justice system. Judge Henwood explained that one of the biggest problems with the youth justice system generally, and the Rangitahi Courts, is what happens when a young person leaves the justice system. The Rangitahi Courts initiative seeks to address that issue by setting up long‑term, community-run support systems to assist rangitahi after they leave the Court. Importantly, the initiative is not a government programme, although some funding has been provided by Oranga Tamariki. The project is community owned, not legal. Its end goal is for total community support for young people leaving the Court, including through the support of employers who will give rangitahi who have been through the Court opportunities. Although the initiative is still being developed, Judge Henwood and Judge Wills explained that with community support, it provides real promise for meaningful, wraparound support for rangitahi after they leave the justice system.

Judge Talasa Atoa-Saaga then presented on cultural approaches to domestic violence in Samoa. The Domestic Violence Court in Samoa deals with cases with a maximum penalty of seven years’ imprisonment, where domestic violence has occurred. Offenders in the Domestic Violence Court complete a programme where they are taught and reminded of important values. A key aspect of the programme is that it works with community leaders who work as counsellors and trainers, which is effective as offenders and victims are more open to working with such leaders than the justice system. At the end of the programme the person is sentenced. The Judge explained how the programme’s focus on long-lasting change and working with the community is effective in providing meaningful help for offenders and victims of domestic violence, breaking the chain for this type of offending.

Similarly, Judge Viran Molisa Trief discussed the Family Protection Act in Vanuatu. She explained that domestic violence is a significant problem in Vanuatu society, with one in three women being sexually abused before the age of 15, and two-thirds of women experiencing domestic violence in the last 12 months. The Family Protection Act 2008 criminalised domestic violence and was passed after 12 years of debate and fierce opposition. The Judge explained how the Act offers protection through the issuance of family protection orders which can be made by the Magistrates Court or authorised persons. However, a continuing challenge is the lack of accessibility to the Magistrates Court or authorised persons for many victims of domestic violence in Vanuatu. The biggest hurdle is how and when the Vanuatu Government can take over responsibility for the authorised persons programme, and how the initiative can be scaled up to all islands to ensure accessibility for victims.

As evident from the presentations of Judge Viran Molisa Trief and Judges Carolyn Henwood and Alayne Wills in particular, funding and resources present real challenges to alternative justice initiatives. However, even without dedicated resources programmes which take a solutions-based approach and ask what an offender, victims and families need have shown real success. From the experience of the Matariki Court it is clear legal systems and legislation do not necessarily need to change for processes to be adapted in a culturally appropriate way. Rather, it is possible to adapt existing systems to the needs of particular offenders by adopting processes that are suitable for and relatable to them. And through the development of such initiatives by innovative and dedicated individuals such as the speakers on this panel, solutions for achieving long-term change may be discovered that work not only for alternative groups, but for the traditional justice system too.

 

Lucy Kenner & Hannah Short