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• Introduction
• Speaking Rights
• Individual V Collective Responsibility
• Restoration And Healing
• Conclusions

4 Te ao Mäori

INTRODUCTION

120 THIS CHAPTER FOCUSES ON aspects of te ao Mäori which are relevant to, or may be affected by, the privilege against self-incrimination.[24]

121 The chapter has been written on the following basis:

• Parliament has the right to make laws for all New Zealand citizens;[25]
• the adversary system, and the basic rules of evidence arising from it, will be retained and will continue to apply to Mäori and Päkehä; and
• this is not the place to consider the comparative merits and drawbacks of a separate judicial system for Mäori, because the paper focuses on one aspect of the law of privilege, rather than on the criminal justice system as a whole.

122 The Mäori dimension includes traditional values, culture, and law. In this context, the use of the word “traditional” is not intended to imply that these aspects of Mäori society are of historical interest only. It is clear that Mäori customary law (tikanga) continues to operate in New Zealand. Nor is te ao Mäori monolithic in nature. It encompasses the range of Mäori experience. In this chapter, the Commission stresses that it is neither its role nor its place to state definitively what tikanga is and welcomes submissions on any inaccuracies or omissions.

123 In assessing whether the privilege is compatible with te ao Mäori, we have borne in mind that the interests which the privilege protects are themselves culturally conditioned (eg, the presumption of innocence etc). They are products of English jurisprudence and make sense within an essentially European-based justice system. In that context, the privilege offers an important and effective protection to both Mäori and Päkehä. Within a traditional Mäori context, the explanations for the privilege and the privilege itself may look foreign. We turn briefly to three particular aspects of te ao Mäori which highlight this foreignness.

SPEAKING RIGHTS

124 In 1840, article 3 of the Treaty (ie, the guarantee of legal equality) confirmed the right of silence and the privilege on Mäori and Päkehä alike. A participant in a hui (held in relation to the Commission’s prosecutions project) observed that the right to speak and to be heard is valued and that the right of silence is a foreign concept to Mäori.[26]

125 Speaking rights on a marae are closely associated with the concept of mana. The mana of the marae is associated with the mana of the people on the paepae.

INDIVIDUAL V COLLECTIVE RESPONSIBILITY

126 New Zealand laws and processes have their origins largely in Western-Christian traditions. They are based upon a concept of individual rights protected by the ideals of impartial application, equality of treatment before the law, and procedural fairness. Crime is primarily seen as being committed against society, rather than against the individual. Therefore, the Crown seeks redress on society’s behalf.[27] Culpability is attached to the individual offender, though there are some defences which ameliorate this, and mitigating factors may be taken into account in sentencing. In the vast majority of cases in which the defendant pleads not guilty, an accusatorial, adjudicative, retributive model of justice is applied to determine whether an alleged offender is guilty and to decide the punishment.

127 The traditional Mäori approach is built around kinship obligations. Individuals are seen as possessing individual rights, but also collective responsibilities. Therefore, an offender is not commonly regarded as solely to blame for his or her crimes. The whanau may also be held accountable. Complementing this is the concept that the action has not hurt merely one other individual, but also the, or another, whanau.

128 Traditionally, redress was not sought by a distant entity, such as the Crown, but by the victim’s and the offender’s respective whanau (sometimes chiefs and elders from the community might also have been involved). In each case, utu, or the price of compensation, was mediated through ritualised körero (speeches) and was acknowledged by both parties as a just and appropriate means of settling the dispute (Jackson, 40). This method of dispute resolution reflects a close relationship between the victim, offender and the judge and jury: a relationship which can be retributive, rehabilitative and a deterrent (Jackson, 110–111).

129 Another aspect of collective responsibility which contrasts with Western-Christian ideas is that intentions may be a minor consideration.[28] A person can be held responsible because the wrong occurs within his or her sphere of mana or accountability, rather than because he or she committed, or participated in, an illegal act.[29] However, this is true only of some transgressions. The circumstances of the particular case, such as the nature of the offence, the standing of the victim or the offender in the community, where the offence was committed, the age of the offender, will all be relevant.

130 Generally speaking, the Päkehä rights-centred approach means that if nobody can be proved to have caused the wrong, nobody need accept legal, as distinct from moral, responsibility. When responsibility is determined by way of an accusatorial process, principles of justice require proper safeguards to ensure that the Crown and its agents do not overwhelm the rights of the individual. As already discussed, the privilege against self-incrimination is an important protection in this context and contributes to the integrity of the accusatorial system.

131 However, when responsibility is collective, the burden of culpability and punishment is more evenly spread. Power is likely to be more evenly balanced between two whanau than it is between the Crown and an individual. Also, tikanga operates outside the formal justice system. In this context, the need for safeguards analogous to the privilege against self-incrimination is diminished.

132 Mäori within the predominantly Päkehä system may be more likely to make admissions of guilt resulting from the psychological compulsion caused by the cultural shame of whakämä.[30] An admission of guilt may be seen as a quick way of resolving matters (although this reaction is not restricted to Mäori). Families, seeing themselves as collectively responsible, may sometimes pressure the individual into confessing guilt. The concept of “befriending” is also relevant, in the sense that the duty entailed in it to help the whanau could lead a person to take responsibility for an offence he or she has not committed.[31]

133 Little published research is available on Mäori cultural responses to offending and to investigation. The Commission’s surveys on the right of silence (see Appendix C) provide general information on these issues. However, they do not indicate precisely whether Mäori and Päkehä regard existing rights differently from each other, nor the level of awareness of existing rights among suspects.[32] Further research is needed. In particular, research is needed on the extent to which people are aware of their rights and exercise them (including the privilege against self-incrimination and the right of silence) and on the extent to which Mäori do not take up their rights and instead plead guilty.

RESTORATION AND HEALING

134 Tikanga places an emphasis on encounter, acknowledgment and restoration:

Violations of tapu demand to be redressed through tika [justice], pono [integrity/faithfulness to tika] and aroha [love]. But an essential part of healing and reconciliation is encounter – preferably in person, or at least through the iwi [tribe] . . . Here is one reason why some Mäori are seeking an alternative justice system, one that involves the extended family and tribe, and one which gives scope for encounter. Without acknowledgement and encounter, injustice will never truly be resolved.[33]

135 Tikanga requires the alleged offender to face his or her accusers and admit wrongdoing and harm to the victim. There is an expectation that the offender and his or her whanau will restore the balance that has been upset by the wrongdoing. In this context, there are no concepts akin to non-compellability, the presumption of innocence and the privilege.

136 The privilege against self-incrimination is not inherently incompatible with a model of restorative justice which emphasises encounter and acknowledgment, despite the fact that healing is generally achieved through discussion and dispute resolution, rather than through silence. The privilege is still an important protection when the individual has not committed, and does not admit to, any wrongdoing: in this case, the restorative model has no application. If the individual has agreed to submit to dispute resolution, he or she could be said to have “waived” the privilege, although this might vary from case to case, depending on the setting and circumstances.

137 There may be a tension between accepting responsibility and the harm that can result to an individual and his or her whanau through failure to recognise liability. This could result in some Mäori failing to fully utilise their rights within the legal system. If this is so, it is all the more important that special efforts be made to disseminate appropriate information to the community about the privilege.

CONCLUSIONS

• Under the Treaty of Waitangi, Mäori are guaranteed formal legal equality with other New Zealand citizens and are entitled to the same rights and privileges (including the privilege against self-incrimination) as other New Zealanders.
• The privilege is a product of Päkehä jurisprudence and reflects the predominantly Päkehä values, culture and traditions which underlie that jurisprudence (eg, the presumption of innocence).
• The privilege is likely to be largely inapplicable or inappropriate in a marae-based setting. Compulsion exerted upon people on the marae to make self-incriminating disclosures may sometimes interfere with marae processes.
• Although the concept of the privilege may be foreign to tikanga, it does not seem to be incompatible with te ao Mäori, or the principles of the Treaty. This is because the witness has a choice about whether he or she invokes it.
• In the context of investigations or proceedings of a judicial nature, when there is testimonial compulsion for a witness to produce evidence, the privilege is an important safeguard for both Mäori and Päkehä.
• Effective invocation of the privilege by some Mäori may be less likely in those contexts because of its apparent foreignness to tikanga. Initiatives should be taken to ensure that the right to, and nature of, the privilege is discussed in those contexts in which the privilege could normally be invoked.
• This topic would benefit from empirical research on the extent to which people are aware of the privilege against self-incrimination and the right of silence and on the extent to which Mäori invoke the right and the privilege, considering them valuable, or instead plead guilty.
• The Commission invites submissions from the community on the conclusions in this chapter.