I note in the trial of the Cohens in Malaysia only the Judge keeps a record of the evidence and without the benefit of a jury he delivers the verdict. No wonder the report of the trial reads like L. A. Law, Penang style. People shout and laugh, the judge storms out. It would be great theatre except lives are at stake.
People at large assume somewhat naively law is solely the rational application of principles. What the assumption overlooks is the passion and feeling which may be in the courtroom or the instability of the social environment in which the trial may be set.
Having said that I want to quote from Sir Robin Cooke's judgment in the case brought by the New Zealand Māori Council over the State Owned Enterprises Act.
"Times and attitudes change and no man can assert that today's philosophies and urgings will be forever dominant. The wisdom of that is incontestable, yet it is equally clear that the Government as in effect on of the Treaty partners, cannot fail to give weight to the philosophies and urgings currently and it seems increasingly prevailing The distinction is between on the one hand what a reasonable person could do or decide and on the other hand what would be irrational, capricious or misdirected."
The difficulty is Maoris have suffered at the hands of a succession of reasonable men affected by the prevailing philosophies and urgings of their time. For instance, in the 1870s there was an attitude of hostility towards Maoris and anything Māori. Thomas Gudgeon in his book Defenders of New Zealand (subtitled 'a short biography of colonists who distinguished themselves in upholding Her Majesty's supremacy in these islands') says:
"Had (the Maoris) been better instructed in the facts of history they would have understood how impossible it was to stay the progress of civilisation, and that the only way left to savage nations of escaping the doom of extinction and living in enjoyment is by floating with the current instead of battling against it."
That statement typifies the social environment within which Chief Justice Prendergast in 1877 decided the case of Wi Parata v The Bishop of Wellington. The judgment refers constantly to "savages" "barbarians" and "primitive barbarians". Not surprisingly Prendergast decided the Treaty of Waitangi insofar as it "purported to cede the sovereignty of New Zealand must be regarded as a simple nullity for no body politic existed capable of making cession of sovereignty". Most people of the time, with the notable and understandable exception of the Maoris, would have regarded that as a reasoned and reasonable decision.
I want to pursue this concept of the reasonable person. The Wolfenden Report of the late 1950s dealt with homosexual law reform and contained the sentence "There must be a realm of private morality and immorality which is, in brief and crude terms, not the law's business." Lord Devlin at that time could not accept there was a sphere of private morality with which the law could not interfere. The law, said Devlin, should reflect public morality which is "a community of ideas which holds society together." Some doctors today might therefore argue AIDS could become a rampant epidemic. If so, and if there was a significant decline in tolerance, on that Devlin argument there could be a valid review and tightening up of the present legal position.
But what happens when the shared principles of society are unsavoury and intolerant and likely to inflict misery on a group or section of the community such as Jews in pre-war Germany or the Blacks in the Southern States of the USA? When we talk about public morality we are not dealing with a dispassionate climate of public opinion. Our own debates on homosexuality and abortion are good evidence of that. Nor are we talking about something that necessarily gets better and better - however we measure that. What is public morality? It is the view of the reasonable man or the right thinking citizen so we are told. There seems to be a liberal assumption or a fallacy there, somewhere. What happens if this supposed reasonable man is ill informed, affected by hysteria generated in the community, or as I suspect was the case for Prendergast, has a viewpoint affected by a recent nasty and indeterminate war?
Inevitably laws will reflect public morality. My point is it still remains a question whether those laws will reflect what is bad and transient or whether they will try to reflect what is best, decent and civilised.
The White Paper on the Bill of Rights has been discussed by Maoris throughout the country. We may presume the aim is to get a consensus viewpoint which will express how a reasonable man thinks about the issue. The process is a familiar one. An idea is floated and a response is called for. But then the matter gets into the hands of lawyers, civil servants, and politicians who may make a decision influenced by factors which have little to do with consensus and reason but a lot to do with what is acceptable. The White Paper will weight Maoris' responses against something called "the greater public good." Māori rights have never fared well in that sort of evaluation. Perhaps we should be seeking the viewpoint, not of the reasonable man but of the concerned man, the man of conscience.
Lloyd Geering recently had an article in the Listener about myths. In popular usage the word almost means the same as falsehood. But to the Greeks myths were narratives handed down by word of mouth which helped people understand who they were and what they could make of human existence and its frightening possibilities.
Here is a Māori myth. The land is Papa-tua-nuku, our "earth mother". We love her as a mother is loved. Through her we entered this world. Eventually through the portal of Hine-nui-te-po we will return to her bosom. When someone says "land is my mother" it means in the land they reach down to deep and basic things about life. Land is not something then to give up easily.
Here is another myth, it is part of our national song. "Guide her in the nation's van preaching love and truth to man, working out thy glorious plan, God Defend New Zealand." God has a plan and if we preach love and truth then the plan is being carried out and God will defend us. It fits in with the myth of Gallipoli as the place where our colony became a nation.
Myths like these organise the way we perceive facts and understand ourselves and the world. Myths provide a framework of meaning. For instance, there is a lot of mythology about the Treaty of Waitangi. For the Māori the Treaty is a framework for a partnership in which Maoris must be able to develop their culture and institutions just as non Māoris have done and use the resources of the nation for this purpose. They know they are involved in a long haul but they are committed to seeing the issues through to a conclusion. What is currently happening for the non-Māori is that slowly and painfully the Treaty is becoming part of their own mythology and framework of meaning. In the first instance, the task of concerned Pakehas is not to support Maoris but to look to their own responsibilities.
Tamihere's claim (The Treaty of Waitangi and The Bill of Rights, New Zealand Law Journal May 1987) that New Zealand has a growing, disaffected, clearly identifiable and large indigenous minority is familiar enough. He then says this minority is no longer buffered by the all embracing cushion of the Welfare State in the form of employment and benefits and consequently has a growing socio-political consciousness. They want to control rather than be controlled.
No wonder then that the seriousness of the present economic and social situation of Maoris plus a sense of bureaucratic impotence plus the strength of their mythology is encouraging new or more accurately reviving old perceptions of where their values and hopes now lie. [This involves an] interesting theological issue. Pre-European traditional religion, its deity, symbols and mythologies, is alive and well. Christianity has to work out a positive humble approach to this continuing tradition. Did Christ come as a stranger to New Zealand? Does Christianity destroy or fulfil the fertile field of ideas and mythologies in which it is planted? often as part of the process of colonisation. The proposed devolution of the Department of Māori Affairs is but a pale reflection of a mood of self determination and a desire to find Māori structures to deal with Māori issues in a Māori way. It would be surprising if recent events in Fiji have not made Māoris reflect on the place of indigenous people in a colonised country. Some of them look again at the Treaty of Waitangi signed by the representative of the Crown and by representatives of the Māori people. It seems to be a document signed by partners and so for some the implication is not one person one vote but one partner one vote. What would that mean for the way in which the partners would negotiate and co-operate within the current New Zealand situation remains to be explored.
As Tamihere says Maoris do not ask for privileges or concessions but rather recognition of their rights granted under the Treaty. They have doubts about the draft Bill of Rights. An alternative Bill of Rights proposed by Elkind and Shaw (A Standard for Justice) in which the Treaty is made paramount over all other laws except the Bill itself seems better. Presumable it would not be possible to change the Treaty. An appropriate Bill of Rights would open up new ways of taking part in the political process in order to acknowledge and deal with the evolving self consciousness of Maoridom, something I have already hinted at.
Bear in mind only 21% of lawyers polled by the New Zealand Law Society support the Bill of Rights in its present form and 57% of the respondents opposed the inclusion of the Treaty of Waitangi in the Bill. Some words of Chief Judge Durie may be appropriate.
"Those who say we don't need a Bill of Rights can say so from the standpoint of a people whose rights have never been seriously threatened. That is not an experience that Māori have enjoyed."
We all live by myths. The question is whether the legal profession contains within its ranks enough mythologies or world views to respond adequately to the exploding multicultural and multiracial situation around us. The facts perceived as true, valuable or reprehensible through the eyes of one culture may not be perceived as such by people of another culture. How does a lawyer of one culture represent a client of another culture? To the best of one's ability is probably the answer. You do not have to be a Māori in order to be a lawyer for Maoris, [although probably] it helps if you marry one. But there remains the task of getting inside the client's assumptions, racial history, value system. [Citation of Dominion story, 21 Aug 1987: A Māori legal service to be set up. "It would go to those organisations on their own ground as and when requested and would work to educate Māori people on their legal rights, thereby breaking down their dependence on lawyers."]
Professor Gold in his report on the reform of professional legal training in New Zealand says the development of skills-based training is necessary for the betterment of both the legal profession and those person and interests which it serves. He develops this at length but my impression is that under the guise of offering suggestions for improving the training of lawyers in fact he perpetuates a problem. The report is written from one cultural perspective and assumes this is the norm in a multicultural situation. In the midst of a comprehensive report Professor Gold says "There should be a special section of the course on Māori language and culture" and then with a whiff of paternalism he adds "As with all cultures the knowledge of local customs and laws is fundamental." And that's about all to indicate the Report is aware of our multicultural and multiracial dimensions.
Here's a quotation from Boswell's Life of Johnson.
"I asked him whether as a moralist he did not think the practice of law in some degree hurt the nice feelings of honesty."
Johnson "Why no Sir if you act properly. You are not to deceive your clients with false representations of your opinion. You are not to tell lies to a judge."
Boswell "But what do you think of supporting a cause which you know to be bad?"
Johnson "Sir, you do not know it to be good or bad till the judge determines it an argument which does not convince yourself may convince the judge to whom you urge it and if it does convince him when then Sir you are wrong and he is right. It is his business to judge and you are not to be confident in your own opinion that a cause is bad but to say all you can for your client and then hear the judge's opinion."
Boswell "But sir, does not affecting a warmth, when you have no warmth and appearing to be clearly of one opinion, does not such dissimulation impair one's honesty? Is there not some danger that a lawyer may put on the same mask in common life, in the intercourse with his friends?"
Johnson "Why no Sir. Everybody knows you are paid for affecting warmth for your client: and it is therefore properly no dissimulation: the moment you come from the bar you resume your usual behaviour. Sir a man will no more carry the artifice of the bar into the common intercourse of society than a man who is paid for tumbling on his hands will continue to tumble on his hands when he should walk on his feet."
That's a fine statement but we have our difficulties. To state the obvious, most clients of the criminal court are from the lower socio-economic, less educated, powerless group in society. Many of them are Māori. Among this group low self esteem and alienation from other people are common.
The lawyers on the other hand are overwhelmingly from the middle class, they are comfortable and literate. [They] quite like being middle class agents of social change. When [the] middle class moves, society begins to change. The law is a powerful profession conferring status. Generally speaking lawyers are not overly committed to social analysis. They tend to mix with their social counterparts who value the same lifestyles and modes of behaviour.
There is an acknowledgement by other parts of the country that judicial activism is alive and well in Auckland. Auckland criminal lawyers are perceived as being more sensitive to the social and economic factors which cause Māori to offend. But the greater reality comes in the form of a comment from a Māori woman on how hard it is to be a Mori law student. They are conditioned to think of WE (the middle class, white lawyers of status) and THEY (the criminals). For a Māori lawyer it is often US. It is often family in the dock and there can be great pressure to help you own brother or cousin.
I have already mentioned the New Zealand Law Society survey of lawyers concerning the proposed Bill of Rights. 57% of respondents opposed the incorporation of the Treaty of Waitangi in a Bill and 24% supported such a move. The survey found comprehensive knowledge of the Bill was poor. The greatest opposition to the incorporation of the Treaty came from Southland, Canterbury and Otago in that order and "in general terms opposition to the Treaty grew as the length of time since admittance grew."
In the May 1987 issue of the New Zealand Law Journal, John Tamihere commented on the Law Society's survey. He said lawyers "have been unable to distance themselves from a legal system of which they are an integral part. They have been unable to address themselves to the manner in which this system implements itself on those in the lower socio-economic strata of our society. More importantly they have not addressed themselves to the extremely unique evolution of New Zealand and the Māori place in it."
Tamihere's point is that in a multicultural society which has significant economic and social distinctions, lawyers reflect a viewpoint which is monocultural and privileged. How different are we from Chief Justice Prendergast? We asked several lawyers to comment on Mr Justice Henry's words to lawyers newly admitted to the bar.
Your first duty is to law and justice.
Your second duty is to your client.
Your third duty is to the good name of your profession.
Your own self interest comes and insignificant fourth.
All agreed this was a good statement of the ideal situation yet all thought the duties so called were much more interlinked and possibly should be reversed. It would then read: lawyers have a self interest in serving the client well, hoping at the same time that justice is obtained. You have to win cases to survive and build a reputation.
The legal profession is essential to the maintenance of a free and open society. But of the lawyers we canvassed all agreed the law lacks credibility today. One thought it was improving, another that it was deteriorating. A third said the law is inaccessible and costly to those who do not know it or cannot afford it.
There will always be a tension between your role as protector of rights and merchants of skills. Many lawyers who have a sense of social responsibility work for the poor and oppressed. Others will inexorably gravitate to those areas of the law where the money is to be earned.
But this is a meeting of the Criminal Bar Association. Perhaps criminal law has been seen as the poor relation of legal practice. We know law firms send their junior staff to do criminal court work. Yet my information is the top criminal lawyers in New Zealand are as good as criminal lawyers anywhere. I am glad you have an Association. No doubt as adversaries you strive mightily but as friends you eat and drink together. I trust the Association will encourage its members to be even more competent. My belief is the law will gain credibility as the minorities of our land begin to taste equity. And that could depend on you.