Gary Judd KC: A Sacred Trust Betrayed

Judicial independence and the reliance on tikanga in New Zealand courts

In A Story is Not Enough — Witchcraft and all that, I explained why there is justification for thinking that we, or some of us at any rate, do witchcraft. It reflects how low those who exercise power have come that even Parliament has attributed human personality to rivers and mountains.

In now elaborating on a theme of A Story is Not Enough, I want to draw attention to what may be the most important departure from the norms of a free and democratic society — the threat arising from our judiciary’s embracing of tikanga Māori. Judicial independence is being sacrificed on the altar of the institutionalization of tikanga.

As tikanga contains just what the favoured interest group claims it contains, the country is being taken towards a state of failed institutions and inconsistent laws, where the rule of law and democratic accountability are subverted.

Judicial independence is one of the principal safeguards of the rule of law. In a constitutional democracy, courts are entrusted with deciding disputes between citizens, between citizens and the state, and sometimes between different branches of government. They cannot perform those functions properly unless they are free from external influence. Nor can they retain the trust of the community if they are not independent and seen to be independent.

Tikanga is an external influence used to advance the cause of tribal control by those who are contemptuous of human dignity. At its core, human dignity is the belief that every human being has inherent value simply by being human. People are not merely subjects to be ruled, resources to be managed, or means to someone else’s ends. They are moral agents capable of making choices and participating in collective decision-making.

Democracy gives practical expression to human dignity because it is founded on the idea that every person possesses equal worth and should therefore have a voice in how they are governed.

Those who took on board David Harvey’s message that what is based on oral tradition is something that “cannot [be verified], … rests on no record outside the telling, and that arrives already reshaped by whoever last found it convenient to reshape,” will understand why I say that tikanga contains just what the favoured interest group wishes it to contain.

Leading into further explanation of why judicial independence has been compromised is a deeper dive into Harvey’s message by looking at an important study by M T Clanchy (1936-2021). Clanchy was a British medievalist who was Professor Emeritus of Medieval History at the Institute of Historical Research, University of London and Fellow of the British Academy. He wrote From Memory to Written Record — England 1066-1307. Following is an extract from the third edition, 2013 in a chapter entitled “Trusted Writing”:

Memory and Writing

Before documents were used, the truth of an event or transaction had been established by personal statements, often made on oath, by the principals or witnesses. If the event were too far in the past for that, the oldest and wisest men were asked what they could remember about it. Numerous examples could be cited of collective oral testimony being given from memory, particularly in cases involving the proof of age of feudal heirs. The example which follows illustrates the method in answer to a less routine question. In 1127 a writ of Henry I ordered a jury to be chosen of twelve men from Dover and twelve from Sandwich to settle a dispute between St Augustine’s abbey at Canterbury and Christ Church about customs dues at the port of Sandwich. The jurors were described as ‘twenty-four mature, wise seniors of many years, having good testimony’. Each in turn then swore on a Gospel book in public that the tolls belonged to Christ Church, saying: ‘this I have received from my ancestors, and I have seen and heard from my youth up until now, so help me God and these Holy Gospels.’

Whether in circumstances like these the jurors really told the historical truth is impossible to establish, since the past events in question were recorded only in people’s living memories. As the jurors had publicly sworn on the Gospels that they were telling the truth, no more could be said, unless their Christian principles were to be impugned. Thus, without documents, the establishment of what passed for truth was simple and personal, since it depended on the good word of one’s fellows. Remembered truth was also flexible and up to date, because no ancient custom could be proved to be older than the memory of the oldest living wise man. There was no conflict between past and present, between ancient precedents and present practice. Customary law ‘quietly passes over obsolete laws, which sink into oblivion, and die peacefully, but the law itself remains young, always in the belief that it is old.’ Written records, on the other hand, do not die peacefully, as they retain a half-life in archives and can be resurrected to inform, impress, or mystify future generations.

From Memory to Written Record is a study of the development of a written culture in England during the period of about 250 years after the Norman Conquest. A fuller description can be found here.

To put Clanchy’s work in a historical context, English as a written language apparently began to emerge in England in the early centuries CE, with the earliest surviving documents in Old English dating from the 7th century, although writing in the Latin language and the Latin alphabet had been introduced during Roman rule from 43 to 410 CE.

Emeritus Professor at the Ontario Institute for Studies, University of Toronto, David R Olson, a recognised expert on the properties of written language, writes for Britannicaon the history of writing systems. Whereas use of visual-spatial communication such as hand shapes, facial expressions and the like (called signed language) and spoken language are thought to have been characteristic of the human species from the beginning, writing is a technology of relatively recent history. Sumerian writing, a type of writing called cuneiform used by the ancient Sumerian civilization of southern Mesopotamia, is the earliest known form of writing. Its origins can be traced back to the end of the 4th millennium BCE.

Writing efficiency increased with the invention of the alphabet, a writing system that breaks down language into basic sound units, consonants and vowels. Olson writes:

The Polish American Assyriologist Ignace Gelb distinguished four stages in this evolution, beginning with picture writing, which expressed ideas directly; followed by word-based writing systems; then by sound-based syllabic writing systems, including unvocalized syllabaries or consonantal systems; and concluding with the Greek invention of the alphabet.

None of these written systems existed in New Zealand before the arrival of Europeans. Te reo Māori was entirely signed and spoken language with no possibility of facts being transmitted other than through the telling from one generation to the next. Written record was non-existent. Written te reo Māori did not start until the 19thcentury when Europeans engaged with Māori to reduce the oral language to writing. As Clanchy said of the period he studied, “Remembered truth was also flexible and up to date, because no ancient custom could be proved to be older than the memory of the oldest living wise man.”

Clanchy’s mother, Virginia, was a New Zealander. Had Clanchy lived a generation or two later his New Zealand heritage might have persuaded him to comment on the peculiar practice I discussed in A Story is Not Enough, of treating seriously the claims by “wise men” about tikanga being New Zealand’s “first law”. He might have had something to say about the credibility to be attached to what the wise men said this tikanga contained.

In passages after that quoted above, Clanchy noted that in the Middle Ages there were people who objected to living memory being supplanted by “the artificial memory of written record”. They preferred “the living memory voiced by wise men of age and experience.” This preference, Clanchy records, was not a recent aberration.

According to Socrates[1], the god who invented writing had been rebuked by the king of Egypt, Thamuzz, who said:

If men learn this, it will implant forgetfulness in their souls: they will cease to exercise memory because they rely on that which is written, calling things to remembrance no longer from within themselves, but by means of external marks; what you have discovered is a recipe not for memory, but for reminder.

Clanchy adds:

Both to ignorant illiterates and to sophisticated Platonists written record was a dubious gift, because it seemed to kill living eloquence and trust and substitute for them a mummified semblance in the form of a piece of parchment.

In the cases Clanchy discussed, there was at least a contest between written record and memory. With tikanga there is no contest because there is no written record.

It will be recalled that in the Statement of Tikanga presented to the Supreme Court and appended to its judgment in the Ellis continuance case[2], the authors (Sir Hirini Moko Mead and Sir Pou Temara) stated as a fact that tikanga is New Zealand’s “first law”[3]. They said:

22. Tikanga is the first law of Aotearoa. It is the law that grew from and is very much embedded in our whenua (land).

23. Tikanga Māori came to the shores of Aotearoa with our Māori ancestors, starting with Kupe and those on board the waka (canoe) Matahourua. In some traditions, tikanga merged with that already present. Tikanga operated effectively for around a millennia before Pākēha arrived.

With no apparent basis other than the authority of Sir Hirini and Sir Pou, a majority of the Court (Chief Justice Winkelmann and Justices Glazebrook and Williams) accepted what they said.[4] This assertion which has nothing to support it other than the assertion itself is echoed in university law schools, by the Law Commission, at least implicitly by the Council for Legal Education, and by many others in the judiciary, the legal profession and elsewhere. Yet the “wise” women and men of the law and elsewhere happily rely on “living eloquence and trust” despite the absence even of living memory.

Anyone who may have had memory of the matters in Sir Hirini and Sir Pou’s Statement has long since died. It is truly a case of ‘this I have received from my ancestors, and I have seen and heard from my youth up until now, so help me God and these Holy Gospels’.

In this way myths are created and fantasy transformed into fact.

The only ‘evidence’ is what “wise men” say, and in some cases, even they cannot say it because “some tikanga might be tapu (sacred) and kept confined to certain expert people. For example, certain karakia (ritual incantations) would be only used by a small group of experts who have the appropriate training, expertise and standing.”[5]

Until contemporary times it was not the way of the courts of New Zealand to proceed in reliance on myth and fantasy. Customs (the way people have actually behaved) could be acted upon but only if actual conduct was strictly proved and other criteria were met. Not now: it is enough that “wise men” have said it.

What does this mean for judicial independence?

Judicial independence means that judges decide cases according to the law and the evidence, free from the influence of extrinsic factors. They would not, for example, allow themselves to be swayed by the views or dictates of:

• the executive government,
• Parliament or the legislature (except where Parliament has spoken through enacted legislation),
• private interests,
• the media,
• public opinion, or
• the parties before the court.

The crucial aspect is decision-making according to the law and the evidence. Decisions truly made according to the law and the evidence will automatically be free from improper influence (otherwise they would not have been truly made according to the law and the evidence), but the independence principle is of such importance that even the appearance of improper influence may invalidate a decision. As it was put over a century ago, “The importance of preserving the administration of justice from anything which can even by remote imagination infer a bias or interest in the Judge upon whom falls the solemn duty of interpreting the law is so grave that any small inconvenience experienced in its preservation may be cheerfully endured.”[6]

When courts decide to insert tikanga into the common law, they confound judicial independence in three ways. First, as tikanga was never written down, its content can be known only through evidence, and there is none, so they are not making decisions about tikanga according to the evidence. Secondly, only judges say what the law is and they do so by faithfully interpreting and applying legislation and by similar reliance on precedent — judges who defer to extra-judicial ‘authorities’ such as Sir Hirini and Sir Pou are not deciding according to law. Thirdly, as a consequence of the first two failures, they are allowing factors extrinsic to the law and the evidence to influence their decisions; that is, they are not deciding cases free from the influence of extrinsic factors.

Judicial independence is fundamental not only to the capacity to do justice in the cases which come before the courts but also to the confidence in the administration of justice of individual litigants and the general public. Public and private trust is essential. Without that confidence the system of justice cannot command the respect and acceptance that are essential to its effective operation. A judiciary which acts in ways which undermine its independence is betraying a sacred trust.

[1] (My endnote).The ancient Greek philosopher who lived c 470-399 BCE.

[2] Ellis v R [2022] NZSC 114

[3] See Tikanga is not law, where I examined Sir Hirini and Sir Pou’s Statement of Tikanga in detail.

[4] Ellis v R [2022] NZSC 114, paragraph [22]: “The majority judges accept that tikanga was the first law of Aotearoa/New Zealand and that it continues to shape and regulate the lives of Māori. In light of this, the courts must not exceed their function when engaging with tikanga.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.