Friday, 3 October 2014

To the New Minister of Justice – My ‘Cri du cœur’’ (Cry from the Heart) ‘


by Kim Workman  


Justice and Dirty Politics

For those interested in the idea and principles of justice, last month was something of a roller coaster ride.  The ‘Dirty Politics’ saga revealed not only actions and activities that bore little  resemblance to our ideas about how democracy should work, but exposed a political leadership that  was  mean, vengeful, and  inherently evil.  By way of contrast, there were public acts of peacemaking and reconciliation of the highest order, which stand as shining exemplars  of the way in which justice should be done.  It brought to mind the opening paragraph of Charles Dicken’s “The Tale of Two Cities”. 

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way”

Let’s get the bad stuff over with first.  The ‘Dirty Politics’ saga revealed a Minister of Justice who believed that if you are wronged, you should ‘give back double;, ’that if you can’t be loved, the next bests thing is to be feared.  Whatever happened to the possibility of respect?
The whole ‘dirty politics’ debacle was gut-wrenching.  New Zealand has been served in the past by some outstanding Ministers of Justice; Jack Marshall, Ralph Hanan, Martin Finlay and Geoffrey Palmer come to mind.  They were all people of principle; people who had a vision for a fair and equitable society, and whose decisions were not based on ‘vengeance’ or pay back, but on the creation of a fair and peaceful society.    And now this. 

Justice to Be Proud Of

The Robson Hanan Trust which I founded in 2009,  is named (with the consent of the respective families) after Dr John Robson, a former Secretary of Justice, and the Hon Ralph Hanan, Minister of Justice.  Their  partnership between 1960 and 1970 produced a bundle of reforms which reshaped the criminal justice system.  Not all of them worked as intended, but they were all headed in the right direction.  Times were different, of course.  It was possible for a departmental head to have a different view from that their political master, and they were encouraged to  express and argue for it, without fear. 

There were of course, times when principles of justice were at stake – it was then that personal courage was tested.  Hanan was a tireless crusader for the abolition of capital punishment, which had been suspended under the Labour government (1957–60). However, in 1961 the National government introduced legislation which provided for capital punishment in three specific situations. As minister of justice Hanan was required to introduce the bill. He accepted the responsibility, but did not hesitate to say that he disapproved of it. He even encouraged groups outside Parliament to campaign against the legislation and successfully persuaded individual government members to vote for an amendment abolishing the death penalty.

There were times when Hanan and Robson disagreed.  Such an impasse occurred  after  the Secretary of Justice, Sam Barnett, a Baptist layman, proposed in 1959, an experiment with the appointment of prison chaplains, and subsequently the provision of dedicated prison chapels.  It proved a great success, and in the 1960’s was the subject of much positive comment from Robson.     In an article written in  1966 he noted that:[1]

“the church is an important actor in a progressive penology………there is little purpose in attempting to introduce so many of the helping disciplines, and outside agencies such as PARS (Prisoners Aid and Rehabilitation Society) and interested citizens into our planning if we believe that human personality cannot be fundamentally changed.”

A major test of Robson’s support came that same year, when New Zealand committed troops to the Vietnam War.  A number of church leaders, including officials of the National Council of Churches (NCC), publicly criticised this move.[2] Three serving prison chaplains put their names to a full page advertisement in The New Zealand Listener, expressing opposition to the war.[4] Ralph Hanan reacted badly to this criticism and asked Robson to terminate the Prison Chaplaincy Service. Robson recalls it this way:

“The Minister tried to persuade me in 1966 to agree to a proposal that full time prison chaplaincy should be abolished.”  

Robson reneged on this request, observing that Hanan’s intended reaction;

“…..ignored the history of the question and the administrative justification for the current arrangements. What troubled me most of all was the Minister’s motivation for wanting to make the change. This political element would be perceived by the chaplains and inevitably it would lead to loss of morale among them and a drop in our standing with the churches.”

A prolonged discussion then took place “between two determined characters” and Robson noted that:

if Hanan issued this minute requiring me to carry out this directive, then I would submit my resignation and retire” even though “from a constitutional angle the minister had to win”

Hanan eventually gave way.    Robson comments further:

“this was a crucial moment for the chaplaincy – the work of fourteen years could well have been nullified and strangely enough the crisis was precipitated by something that had nothing whatever to do with the work of prison chaplains.[3]

Cri du cœur’’ (Cry from the Heart)

Andrew Geddis in his blog ‘Cri du cœur’’ (Cry from the Heart)  , put the issues much more eloquently than I ever could (although I still prefer Edith Piaf’s version) .  One paragraph targets the issue;

“What the people in Dirty Politics are trying to do is kill the good in politics and turn it into something completely toxic that destroys any hope of meaningful debate, discussion and conciliation, all so that their side can "win". If that sounds melodramatic and over the top, it isn't. You can read them saying that this is what they want in their own words. And that is a terrible, terrible thing to seek to do. Because if they win – if the way we conduct our politics and manage our differences and decide our common path becomes their vision of how "the game" should be played – then we all lose something very valuable. Basically, we lose our future.”

I don’t think that Andrew was being over-melodramatic.  It was not only about ‘win at all costs’, but equally about the values and attitudes held by people in the pursuit of what is a ultimately a  Pyrrhic victory – a victory where the heavy toll to people’s  personal mana and reputation and the nation’s integrity negates any sense of achievement or profit.

During my  period of speechlessness, I reflected on whether I had ever encountered   behaviour of the kind described in ‘Dirty Politics’.  Two incidents came to mind. 

The first occurred around 1969, when as a Sergeant in Charge of the Wellington Youth Aid
Section, I was asked by the Principal of a private college for girls, to assist with a spate of vicious gossip and scare mongering by a group of girls, which had led to one of their victims seriously self-harming.  Their modus operandi was to write anonymous letters about their targets, and with the aid of a Gestetner copying machine,  post the letters into each pupil’s personal locker.  It was unclear who the offenders were, but the letter’s evidenced cruel and vicious minds, and a value set that failed to comprehend the damage they were causing to others.  It was a reminder that even though your work life  is spent mainly with the poor and marginalised, the potential for criminality and destructiveness exists throughout society.  Here were a group of attractive, well-bred, affluent  school girls, engaging in behaviour that was potentially life destroying. 

The Principal asked me to speak at the school assembly, and engage in a ‘scared straight’ rant, emhasising the punishment they would suffer if caught.  I chose instead, to provide them with a couple of case studies, talking about the harm caused to the victims and their families, including one in which the victim committed suicide.  I left the whole issue hanging, and invited them to talk about the consequences of this behaviour with their friends and members of the staff.  It seemed to work – the behaviour stopped and two parents complained about their children being very upset by my talk. 

The second incident occurred a few years earlier (around 1967) following an incident in which gang members threw a Molotov cocktail into a rival gang’s house, narrowly missing, but  seriously traumatising a two year old child.  Police practice in those days was to interview suspects individually.  I decided to conduct an initial interview with the five suspects in the same room, to see whether the group dynamics might elicit some additional information.  Well it did.  They started boasting about their escapades and their battles with rival gangs.  It was ‘Dirty Politics’ all over again.  They talked about the kick they got from being feared within their community, the importance of ‘payback’ and getting even, and the physical harm they caused to people who resisted their behaviour.  All in the pursuit of power and ‘winning at all costs’. 

So my ‘Cry from the Heart’ is this.  Whether it is a bunch of upper-class pākehā schoolgirls, a gaggle of angry, disempowered Māori from the margins of society, or a cadre of elitist politicians and bloggers who set about to destroy lives, reputations, and abuse the principles of democracy –the motives and drivers are the same – and the impact on our nation is ultimately destructive.  And it is Not Justice

What Justice Really Looks Like - the Apologies to Tuhoe

At around the same time the nation witnessed this grubby behaviour, we got a glimpse of
what real justice looks like.  It was the image of courageous and sincere Police Commissioner Mike Bush standing before elders of the Tuhoe Nation, apologising for the events of 2007, when out of control Police terrorised the men, women and children of Ruatoki.    

That was followed a week later by an official Government apology by Attorney General , the Hon Chris Finlayson, to Tuhoe for Crown actions since 1860; including indiscriminate raupatu or land confiscation, wrongful killings including executions, years of scorched earth warfare, the failure to implement the Urewera District Native Reserve Act 1896 and the exclusion of Tuhoe from the establishment of Te Urewera National Park. 

The full apology encapsulated more than 150 years of Crown maltreatment, vengeful
misconduct, and the exercise of state power, and its devastating effect on Ngai Tuhoe.  Tuhoe chief negotiator for the settlement, Tamati Kruger said it was a historic day for them.  "Today, was a day to be remembered - a day to celebrate peace and a forward looking future,".  But he also made it clear that there was some distance to travel before they two parties could achieve the ultimate goal of closing ‘Te Tatau Pounamu’  the green stone door’.  ‘The Greenstone Door’, refers in a figurative sense to how, in times of trouble, peace can be secured and warfare ended through a political marriage and the exchange of greenstone. The peace thus established was often likened to a greenstone door as both were seen as being durable, strong and highly valuable.   The Crown’s dual apology provides the occasion for discussion of indigenous strategies for sustaining relationships between collectives and over generations, for resolving conflict, for peacemaking, reconciliation and restorative justice.

It will be important for the Crown to consider how to achieve the ultimate aim of reconciliation and ‘whakahoki mauri’ i.e. the restoration of community balance.  If, for example there is an expectation that at some point they will be forgiven, that may be problematic.  There is no Māori word for forgiveness. The widely-used Protestant version of the ‘Lord’s Prayer’ in Māori (and the corresponding scriptural translation in Matthew 6:12) uses the term ‘muru’ to refer to the Christian idea of forgiveness, while Roman Catholic translations use words such as whakakāhore (negate) or wareware (forget, be unmindful of) – in my view, a more accurate rendition.

The word ‘muru’ means to to wipe or rub, which includes both rubbing off and smearing something on, as well as the plucking off or stripping of leaves from a branch or twig.  By extension, the term included the act or institution of ritual seizure or ‘stripping’ of goods from the guilty individual or his family or community for an alleged offence.   Māori cultural experts argue that forgiveness was not part of the indigenous thinking process.  Once the community was back in balance, the matter was closed and forgotten i.e. “wiped out” – and the greenstone door was closed on the memory.    

The overall aim of dispute resolution was the restoration of mana, to achieve a balance of all considerations and to achieve a consensus; it was not an adversarial process. When there had been a dispute that had affected the spirit and mauri (life force), the question was how to bring it back into balance. Regardless of what level or who was involved, there is the same fundamental principle, that of ‘whakahoki mauri’ or restoring the balance between the two parties.  Apparent here is the notion of ‘healing’. 

What then was this apology about – if not to elicit forgiveness?  First, it was about exercising the state’s capacity to make and keep promises – in this case, the promise of a different relationship, and a commitment to the covenant known as  the Treaty of Waitangi.  It was a genuine attempt to acknowledge and clear up the past, to stop engaging in selective remembering, and to read our national past differently. 

Economic concerns are not the prime movers in the realm of politics.  The values and options that guide economics are intimately linked to the fabric of our cultural values, which are in turn deeply influenced by our past.  The traumas and triumphs of our past shapes and informs our identity and the way we perceive our mission for the future.  It certainly shapes the way we do justice.  What are contained in these two apologies is a clear and honest acknowledgement of our history, and a declaration of our future fitness to be a trusted covenant partner with the Tuhoe nation.  A healthy ‘economy of memories’ is the founding principle of any form of dependable, authentic and just politics.  That is how we need to do justice, from Monday on. 

The New Minister’s Bucket List

You  can’t do all this overnight.  Perhaps the initial challenge is to convince the nation that as from Monday, justice will be done differently,  and the new Minister will act accordingly.

In consultation with members of the Justice sector, we recommend a number of key changes which will be easy to implement, and will signal the government’s intention to behave differently.   

Here is our bucket list of ‘Things to Do’ for our new Minister. 
  1. If you are a lawyer , keep reminding yourself that legislation may be about law, but it is rarely about justice. 
  2. Develop a Hanan/Robson relationship with your CEO.  Encourage him or her to offer advice freely, encourage robust debate, and resist the temptation to treat them  (to put it crudely) as just another ‘fart catcher’.
  3. Insist that government department’s prepare Regulatory Impact Statements on new legislation that are comprehensive, well researched and address the unintended consequences.
  4. Promote and insist on a legislative  process which is consistent with democratic principles.
       The New Zealand Law Society’s report to the United Nations has a handy list of things          not to  do;  e.g.
·                                                 
·         Denying citizens the right to legal representation
·         Allowing the Executive to use regulation to override parliament; 
·         Cancelling citizen’s rights to appeal to the courts to uphold their rights under the law;
·         Using Supplementary Papers and urgency to avoid proper Parliamentary scrutiny of legislation;
·         Ignoring the Attorney General’s advice and enacting legislation which has been formally declared in breach of the Bill of Rights;
·         Diverting legislation away from the appropriate Select Committee to one which does not have the appropriate level of expertise to deal effectively with it, e.g. Electoral (Disqualification of Convicted Prisoners) Amendment Bill 2010, and the Sentencing and Parole Reform Bill 2010 come to mind. 

5.  Finally,   Take the time over the summer vacation, to read Amartya Sen’s “The Idea of Justice’, and its predecessor, John Rawls ‘A Theory of Justice’.  

You will know you are successful, when you are able to open a Conference on Cyber-bullying  without a twinge of guilt.  When you are able to speak about restorative justice knowing that ‘making an apology’ is not a sign of  weakness, but a symbol of strength.   When you encourage broad and open discussion about what real justice looks like, and how it can be achieved. 

We of the justice sector look forward to working with you – and we offer our support over the difficult years ahead.  We look forward to being once again, a nation that loves justice, and regards robust , honest and open politics as a force for good. 



[1] Brown, C. (1981), Forty Years On. Christchurch.
[2] Robson, John Sacred Cows and Rogue Elephants, p 280.
5] Roberts, J. Prison (1975). “Prison Chaplaincy in New Zealand.” Dissertation, Diploma in Criminology with Honours, Auckland, University of Auckland. 


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