34 H U M A N R I G H T S COMMISSION | A FAIR GO FOR ALL? Structural discrimination in the justice system All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. International Covenant on Civil and Political Rights, Article 26 In this section, manifestations of structural discrimination in the justice system are discussed. The specific focus is In tikanga Mäori, a collective group is identified as the victim and a collective group is responsible as the offender. This comes in part from the collective nature of traditional Mäori society. The whänau, hapü and iwi of the victim and offender are also affected by offending as it diminishes the victim and offenders’ ability to contribute to the collective. Because offending has such a community-wide impact, the community as a whole is involved in the justice process.150 the criminal justice system, although it’s acknowledged Pacific conceptions of justice are similarly relationship- that the justice system is not solely reducible to criminal based. Pacific definitions take as their starting point the justice.148 In developing this section three aspects of the state of wellbeing. Pacific researchers tell us that for a criminal justice system were considered: policing; courts; Pacific person, wellbeing exists when their relationships and correctional facilities and rehabilitation. with their environment, their God and other people are in Often cited is the “fact” that Mäori – and, to a lesser extent, Pacific peoples – are over-represented in the criminal justice system. It is important, however, to place this in context. It is younger people who are more likely to come into contact with the criminal justice system, and both the Mäori and Pacific Island populations in New Zealand have a younger age distribution than the population as a whole.149 a state of mental, physical, psychological, emotional and spiritual balance. Violation against other people, and in particular family members, is viewed as a significant breach of these sacred relationships and thus of wellbeing. Where violence breaches relationships, most Pacific communities will try to re-establish the disrupted relationships and restore balance. Punitive measures are considered only within the context of the holistic healing of the network of relationships affected by the breaches.151 The aiga/ Nonetheless, information gathered suggests that there are fanau or traditional Pacific family unit is responsible for two forms of structural discrimination that exist within the welfare and wellbeing of its members.152 Practices such the justice system in New Zealand. The first relates to as the Samoan ifoga – the traditional practice of seeking the nature of the system. That is, the values the system is forgiveness and rendering a formal apology – could be one based upon, a lack of engagement with Mäori and Pacific way in which the family or community seeks to restore peoples in project design and implementation and a lack damaged relationships.153 of cultural sensitivity. The second relates to practice within the system. There is evidence of bias at different points throughout the system from apprehensions to sentencing, which notably contributes to the higher rates of Mäori and Pacific imprisonment. Manifestations of these forms of structural discrimination are discussed further below. Values underpinning the criminal justice system Initially founded on the British model, New Zealand’s justice system is based on perpetrators taking individual responsibility for their crime. Until recently the system has not incorporated Mäori and Pacific frameworks of justice that take into account a greater sense of whänau and community responsibility and involvement in the justice process. In a paper on Mäori-based justice, Marie Dyhrberg reflects on her experience as a barrister in South Auckland, where about 90 per cent of her clients were Mäori or Pacific peoples. Dyhrberg comments: The New Zealand criminal justice system, as an example of the adversarial system is, by nature, antithetical to the traditional approach as practised in the Marae. It is my opinion that the maintenance of law and order generally may be better achieved by adopting a system based on Mäori and Pacific Islander principles of conflict resolution which welcomes and provides for a greater sense of community involvement and responsibility in the justice process.154