By Jacob Chacko
This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.
Restorative Justice (RJ) was a recurring theme in the Non-adversarial justice unit for me. As the first theory of non-adversarial justice that was taught in class, it really provided a springboard to analyse the intersection between justice and the law. Outside the classroom, RJ was a substantive part of my placement program at the Federal Circuit Court – where conferencing formed an important role in family dispute resolution services. I also experienced RJ in my workplace and found that it often formed the philosophical platform upon which social and economic policy is delivered.
What is restorative justice?
RJ is still a somewhat nebulous concept. At face value, it can be described as a mediated encounter between victim and offenders discussing what happened with an eye to what can be done to make amends. However, at closer examination, it becomes clear that RJ is not only complex, but it is also built on shaky principles, manifesting at times into “a confused, seemingly incoherent assembly”. Considering the vast application of RJ in law, criminology, anthropology, and psychology, I would like to focus my reflections on RJ in the context of transitional societies – societies that are going through a paradigm change, often addressing past wrongs. Examples are littered throughout history, from the civil rights movement in America, to the Nuremberg Trials, the Truth and Reconciliation Commission in South Africa (TRC), Imperial Colonialism, and treaty-making with indigenous peoples around the world.
Some of these examples are real to me. I grew up in apartheid and post-apartheid South Africa. I am an overseas citizen of India and my ancestors lost lives and livelihoods due to the British Empire in India. I previously worked in Australian federal politics – where reconciliation with indigenous Australians is a live issue. These attempts at RJ, or lack thereof, have been something I’ve witnessed in different countries, with different cultures, in different times.
RJ and forgiveness
In class, there was a big focus on apologies and the role they play in RJ and therapeutic jurisprudence at large. Forgiveness was a key theme in this discussion, with the analyses of Alfred Allan and Professor Pumla Gobodo-Madikizela providing stimuli. The former providing a meta-analysis and the later providing a real-life example of the TRC in South Africa. Both agreed that the discrepancy in definitional understandings of apologies and forgiveness was problematic. Both saw reconciliation and forgiveness as independent constructs. Gobodo-Madikizela discussed and criticised the imposition of forgiveness as the over-arching theme of the TRC – an imposition made by the Christian Archbishop and Chair Desmond Tutu. She also raised the problematic nature of the victim-offender dichotomy in this RJ process.
The Australian Parliament’s apology to the stolen generations was discussed and in some ways contrasted with the TRC. The apology focused heavily on affirmation and effect. It was quite self-focused on action.
Problems with forgiveness
There does appear to be cognitive dissonance in what it means to forgive. At a fundamental level, I don’t think it has been settled whether forgiveness is a virtue or is discretionary. I think this discussion is needed because the above examples are manifestations of this lack of clarity. It is clear that forgiveness is not subject to formalised beliefs or processes. It seems like a much more unique, human act – subject to time and healing. If anything, the aftermath of Desmond Tutu’s TRC demonstrates the dangers of coercive forgiveness.
On the other hand, Allan demonstrates that forgiveness has positive therapeutic, economic, and efficacy qualities. Litigation is often forgone, and there are implicit physical and mental health advantages. It therefore appears that analysis of RJ in inter-personal disputes cannot be directly transposed to groups of people or societies in flux. Clamp and Doak make this point and compare RJ with transitional justice and describe them both as embryonic concepts. Further, they claim that more work is required to more accurately identify the limitations of RJ before it is applied to transitional justice frameworks.
My initial moral and emotional reaction was a repugnance to the idea of a coercive form of forgiveness. It seems like an affront to what it means to be human to force someone, even in the smallest way, to relinquish justified resentment. That being said, upon reflection, my mind did turn to the state of practical RJ in the two examples mentioned above (Australia and South Africa).
Effects of RJ in practice
In South Africa, the commission was set up and performed its task. Yes, it may have been problematic, but the process did bring to light the horrific crimes and to a certain extent, set the record of history in the right direction. In addition, reparations were made to victims.
In Australia, the significance of the apology to the stolen generation, especially in light of its 10-year anniversary, is far from settled. Very few would argue that the apology was a mistake, but progress on practical and symbolic RJ has been frustratingly slow. I believe that there are significant differences in understanding of the apology between the Australian public, policy makers, and advocates. I further believe these differences aren’t only about the mechanics of the apology, I think there is a significant divide on the deeper principles which underpin the apology. Much commentary is made on the structural limits to the apology. It sits on questionable grounds of sovereignty, it addressed a discrete set of policies of forced removals (not injustice suffered by Indigenous Australians writ large), and it offered no compensation scheme. However, not much is written about the way in which RJ interacts with the apology and the nature of forgiveness. These are live issues. I think the criticisms made of Desmond Tutu and the imposition of the Judeo-Christian idea of forgiveness can be applied here. Let me explain.
From my conversations in and out of class, I found that most people do equate apologies and forgiveness. Interestingly, Kevin Rudd’s speechwriter Tim Dixon, one of the authors of the apology, has commented on the ecclesiastical structure of the text. The second half of the apology was inspired by the structure of the Christian prayer Kyrie Eleison. I make this point not as an interesting source of trivia, rather as a reflection on the way in which the Christian idea of forgiveness being resonant with Australians – at the cost of a thorough understanding of RJ principles. Addressing this shortfall in understanding, I think, is crucial.
The journey of RJ
Interestingly, the current proposal from the Referendum Council does propose a Makarrata, or truth-telling commission. Maybe a formalised process of restorative justice will allow Australians to see RJ through the prism of a journey, a process which occurs over time, incoherent in the short-term.
I have been reading a book by Shashi Tharoor, Inglorious Empire: What the British did to India. In it, he recounts the atrocities of the British Raj and the bloodshed and economic vandalism conducted to uphold the Empire. In the forward to the book, Tharoor states that India, as an independent proud nation, should seek no reparation and that this is simply a correction of the record. It seems like the demands of RJ change when the victim-offender dichotomy doesn’t resonate in the present reality.
I feel I have learnt to appreciate the importance of distilling ideas to first-principles. RJ is such a nebulous idea, applicable on so many levels. Some consider it fundamental to all human interactions. It exists in our civil and criminal legal systems. It has become a buzz-word for policy makers and politicians. Yet, when analysed closer, it exists on problematic grounds. Forgiveness is not clearly defined. As a term, it’s often conflated with other ideas incorrectly. I feel that had I not observed closer, I would have completely missed it.
I think this demonstrated that in some ways, I have to be autonomous and conscientious to be an ethical legal practitioner. I feel like processes of self-evaluation like these, give me a better lens for moral clarity – whether that be in law or in any other profession.
Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (The Federation Press, 2nd ed, 2014) 41.