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Te Hunga Rōia Māori o Aotearoa (The Māori Law Society) highlights recent personal attacks on members of the judiciary by legal professionals. This column says these attacks undermine trust in the judicial system and detract from a healthy democratic discourse grounded in respect, aroha and empathy.
E ngā mema o te rangapū ture, tēnā rawa atu tātou me ō tātou tini aituā, kua tanuku ngā maunga whakahī o te motu i ēnei marama tata nei. Waiho mai mātou te hunga ora e tangi tonu nei.
As we reflect on the recent losses among te ao Māori, we gain strength from the leadership provided by those such as Dame Iritana Tawhiwhirangi, a Māori language champion instrumental in the establishment of kōhanga reo, and Dame Tariana Tūria, who bravely lead the resistance to the confiscation of Māori rights in the foreshore and seabed. E ngā rangatira, haere, okioki atu rā.
Aotearoa, this beautiful whenua that we all call home, is currently being tested by challenging tides of discourse, that are also lapping on shores around the globe. The legal fraternity here in Aotearoa is no exception. Perhaps, as we continue to mature as a nation, this is no surprise. However, the manner in which we navigate our growing pains is critical.
He iti hau marangai, e tū te pāhokahoka.
A small storm, then a rainbow appears.
Recently we have noticed an unwelcome trend of increasing personal attacks on members of the judiciary by members of the legal profession. We are not accustomed to seeing such brazen attacks. Of note, many of the recent attacks appear to be directed at Māori members of the judiciary, despite the small proportion of the judiciary that they comprise.
This is problematic on a number of fronts.
First, judges in our legal system are not able to speak publicly to defend themselves or the claims made against them.
Second, such actions undermine trust and confidence in the judiciary, a critical pillar of our constitutional foundations. As the late Honourable Justice Tompkins said 30 years ago “… a general attack on the judiciary as a whole strikes at the very root of that public confidence that is so essential to the judicial system”.¹ While discussion and debate about the merits of particular cases is a part of healthy democratic discourse, the recent commentary is certainly not that.
Third, these opinion pieces are often misinformed, accompanied by a degree of hysteria and, often, plainly incorrect commentary.
Do we call this out for what it is – seemingly a dog whistle of sorts seeking to scaremonger and misinform – or do we seek to educate through dialogue and discussion? Perhaps a mix of both is required.
He hanga nā te waha o te ngutu nō mua iho anō.
A proverb highlighting the importance of ancient sayings, customs and knowledge, which provide wisdom and precepts for modern times.
Some of this misinformation centres on the nature of tikanga and Māori society in general. Most people will hopefully be able to see through the tired tropes and cynical references to tikanga practices, that died out hundreds of years ago, as evidence of the “problem” of tikanga as law (ignoring that similar (or worse) historical practices existed in societies all over the world, including England). But that does not excuse the misinformation spread by writers, particularly when it is deliberate and designed to alienate and strike fear into hearts and minds.
One of the other specious assertions that tends to feature in these articles is the characterisation of the common law as being entirely written down and knowable in advance, apparently in contrast to the uncertain beast that is tikanga Māori. This misunderstands both. The stated uncertainty of tikanga reflects a lack of knowledge of its nature and norms, rather than an inherent quality of tikanga. Further, on the common law, in contrast, Lord Walker described the lofty aspirations of finality and certainty within the common law as a high, and even insurmountable, threshold in a system which rests on incremental development – the “antithesis of finality and certainty”.²
One therefore wonders what opportunities these writers have taken to engage with te ao Māori, to visit, to learn, to know, to understand, before putting words to paper. Who knows what enlightenment might emerge if they did? People have shared stories with us of emerging from a visit to their hitherto unknown local marae feeling welcomed, enriched and woven into the fabric of their community, or feeling uplifted and inspired by a visit to a kōhanga reo or kura kaupapa Māori, seeing how tamariki learn and grow in those uniquely Māori spaces. Sadly, it appears a proportion of our society is determined to ignore and undermine that rich tapestry.
As we debate and collectively chart the direction of our nation, in our wee patch of Te Moana-nui-a-Kiwa, we might do well to pause, listen and reflect.
We might pause to consider that all law of peoples is a product of the society to which it belongs. It reflects the unique history and composition of those communities. The common law in all jurisdictions, including ours, has from the very beginning always had a place for the recognition of laws pre-existing the common law, such as tikanga Māori. There is nothing new or radical to see here. It is orthodox. And why wouldn’t we, in Aotearoa, want to have our own bespoke laws? Like the late, great, Miria Simpson reminded us, we are New Zealanders, not “little Englanders”.³
We might seek out and listen to those who can share their knowledge and understanding of te ao Māori, including tikanga Māori – enquiring with an open mind to better understand. We might also listen to the reflections and experiences of our neighbours in Te Moana-nui-a-Kiwa, who have all grappled with the intersection of two or more legal systems at some point, and continue to do so. Of course, multiple intersecting legal layers is the norm, not the exception, around the world. There are many states and systems around the world that grapple with and reflect this intersection – Singapore, India, Bolivia, Scotland, and Canada to name a few. Fear not, we are not alone.
We might then reflect on what it means to be a Pacific nation, founded on Te Tiriti o Waitangi, a solemn compact between the Crown and Māori. A nation whose common law has always had space for tikanga Māori and the pre-existing norms and values of Māori people. This is a foundation for the enrichment of our law.
We consider it would help immeasurably if our future discourse was underpinned by a willingness to learn and to be informed. A discourse grounded in respect, aroha and empathy. As a part of that journey, we could also all do our part by refraining from personal attacks on those who are not able to defend themselves – in true Aotearoa lingo, play the ball, not the person.
We remain genuinely hopeful of our journey as a nation – that it will be one of informed dialogue and debate. We acknowledge the weariness (some exhausted and / or losing faith in a number of our long standing constitutional conventions). But we return to hope, and the words of Kīngi Tawhiao, as a final reflection; words of strength in unity (perhaps one of our nation’s not yet fully realised strengths).
Ki te kotahi te kākaho ka whati,
ki te kāpuia e kore e whatiWhen reeds stand alone they are vulnerable,
but together they are unbreakable.—Kīngi Tawhiao