Karl du Fresne: When a whanau places itself above the law

If you had to name the vital principles underpinning our civilised, democratic society, what would they be?

One would surely be the rule of law, which provides a framework by which injustices are dealt with, disputes resolved and the weak protected against the powerful.

Respect for the rule of law is one of the factors that distinguishes liberal democracies from countries where despots rule, and where justice, if it exists at all, is administered very selectively.

It follows that without the rule of law, society would unravel. Yet a determined challenge to the rule of law in New Zealand has been allowed to continue unchecked for seven years.

The country has watched with mounting dismay and incredulity as the Bay of Plenty whanau of the late James Takamore has repeatedly defied court orders to allow the exhumation of his body and its return to Christchurch, from where it was taken in 2007.

First the High Court, then the Court of Appeal and finally the Supreme Court all decreed that the wishes of Takamore’s Paheka partner and children should prevail over those of his whanau.

It’s clear that Takamore himself wished to be buried in Christchurch. But when an attempt was made in August to disinter his body from the whanau urupa near Opotiki, police and funeral directors were blocked by an intimidating group of Maori protesters. Rather than risk violence, they retreated.

At that moment, the goddess of justice must have let out a quiet sigh of despair.

In this case, the whanau have placed themselves above the law. They have used a cultural pretext, the sanctity of Maori custom, as an excuse to defy the courts and bully a grieving family. And a timid Crown appears to have no answer to their arrogance.

A High Court judge who has tried to mediate, apparently in the vain hope that sweet reason would succeed where court orders failed, has given up and passed the parcel – an embarrassing, much-handled parcel that no one wants – to the Solicitor-General.

No one will be holding their breath in the expectation of a sudden breakthrough. After all, why would the whanau capitulate now, when they have succeeded in repeatedly making a mockery of the legal system and proving its impotence?

Effectively, we seem to be back to square one. The scandalous procrastination continues.

The whanau claims good reason for doing what it did. After Takamore’s death members of the whanau travelled to Christchurch where they reportedly found his body lying unattended in the funeral home. The Tuhoe people regard this as an egregious breach of tikanga (custom) and a slight to the dead person.

I’ve also seen it argued (by a Pakeha) that Takamore deserves to lie among his own people, where his remains will be honoured and cared for.

I understand that argument up to a point, but it assumes he would have been neglected and forgotten had he remained in Christchurch. That’s an insult to his widow and children.

In any case, all that is irrelevant. We have a judicial system that has evolved over hundreds of years to determine a just and fair outcome in complex situations such as this. It’s not perfect, but it gets things right most of the time.

Maori as well as Pakeha are protected under this system. Maori accepted British law when they signed the Treaty (in fact asked for it, because of the problems caused by unruly colonists) and have become adept at using it to their advantage.

But the law is not a game of pick-and-choose. The system depends on people accepting the decisions of the courts whichever way they fall. Maori cannot embrace the judicial system when it works in their favour and disregard it if they think their tikanga takes precedence. 
 

It hardly needs saying that the rule of law is imperilled when people see a renegade group brazenly defying the highest court in the land and getting away with it. What’s to stop other disaffected litigants deciding to have a go?

There’s surely a simple, if unpleasant, solution. It’s ultimately the job of the police to enforce the law. Instead of timidly tip-toeing around the issue in the interests of cultural sensitivity, the police should guarantee sufficient force to protect those wanting to exhume the body. Anyone who interferes should be arrested for breach of the peace and contempt of court.

I’m sure that if a motorcycle gang defied the law from behind the walls of its fortified headquarters, the police would call in a bulldozer. It’s happened before. But it seems a different set of rules apply on the Kutarere Marae.

For every day that Takamore’s whanau are allowed to go on defying the courts, the rule of law is weakened. And James Takamore’s immediate family is left to ponder its apparent powerlessness.

I wonder when someone in authority – a judge, a politician, the police commissioner, anyone – will eventually muster the moral courage to call the Takamore whanau’s bluff.  

Karl du Fresne blogs at karldufresne.blogspot.co.nz. This article was first published in The Nelson Mail and Manawatu Standard.