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David Round

Voltaire! Thou shouldst be living at this hour!

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Privilege! If there is one thing we all hate, it is privilege. Especially if it is unearned privilege, although even earned privilege may irritate. Our alleged ‘tall poppy syndrome’ is an aspect of this hatred, although I do not think our ‘syndrome’ is any worse than anything we observe in many other countries.

Nor is our tall poppy attitude necessarily the ‘politics of envy’. It might be, but if one idea could be called New Zealand’s founding principle, it is equality. Our pride in ourselves, admittedly still sometimes a little self-conscious, springs from the daring confidence of our forebears that given the right opportunities, many Jacks could be as good as their masters. We are fiercely egalitarian. It is what has made us what we are. It is the spirit of the pioneers and the trenches, the mateship of the pub and the hills, the ordinary people who watch carefully and disinterestedly the government of their country, because it is in a very real sense their government and country. There are always know-all bossy-britches ready to dismiss this egalitarian spirit as a mere curious cultural heirloom from an earlier age, but it is no such thing. It is our national idea; it is the only possible attitude in a democracy, which has its only justification in human equality; and more than that, it finds a solemn basis in constitutional thought as an aspect of that undoubtedly good thing, the Rule of Law.

We take the Rule of Law for granted, as we take many good things, but it is a pearl of great price. And one of its elements, as identified by Professor Dicey, the eminent nineteenth century author of The Law and the Constitution, is the idea of equality before the law. Although its full flowering has taken a thousand years, this subjection of all, even the king himself, to the superiority of the law, to the ‘common counsel of the realm’, has long been an element of English law. It was not even created by Magna Carta; the Great Charter merely affirmed it.

Professor Dicey described how the celebrated Voltaire, philosophe, wit, scourge of cant and hypocrisy, apostle of enlightenment, renowned all over Europe, companion of kings, was once dragged away from a Duke’s dining table by his servants and beaten because of an alleged slight to their master. Voltaire had no legal redress; no-one was prosecuted; simply because of the Duke’s noble birth. That was France, before the Revolution swept all such aristocratic privileges away in a dreadful tide of blood. Things had never been so bad in England. There were class distinctions, and even the right of noblemen to be tried by their peers in the House of Lords, but privilege had always been scarce and limited, and by Dicey’s time the Rule of Law and the principle of equality before the law had long been recognised in the United Kingdom as a basic and fundamental legal principle.

That was also, as I say, New Zealand’s founding principle. There were to be no classes here, legal or otherwise, if we could help it. We have no hereditary nobility; hunting is not reserved for the upper classes; we are all ‘just a little bit socialist’, as Mr Key has said of us; and we are all ruled by the same law. Any different treatment for any citizen would have to be justified not just by law but by good reasons.

Well, that was the situation until recently, anyway, but New Zealand has just taken another distinct step towards a society where ones punishment for crime depends on ones social status ~ and on ones race. It will not surprise us to learn that this appalling step has been taken not by some dreadful old crusty reactionary like ourselves, determined to re-create the worst aspects of the Old World, but rather by a liberal apostle of enlightenment. (‘Ah Liberty! What crimes are committed in thy name!’, as Madame Roland exclaimed on the way to the guillotine.) But it may surprise us just a little ~ or perhaps not, given the increasingly dismal record of the judiciary ~ to discover that it was a judge ~ dedicated if anyone is, surely, to the Rule of Law ~ who has taken this step.

I am referring, of course, to the recent decision of Judge Philippa Cunningham in the Auckland District Court to discharge without conviction Korotangi Paki, the younger son of the Maori King, who had pleaded guilty to a drink-driving charge and (while awaiting sentence on that charge) two charges of burglary and one of theft. Her Honour specifically stated that she did not convict Paki because she was ‘driven to the conclusion’ that Paki would lose out on any chance of succession to his father, the Maori King, were he convicted. ‘There’s only two sons and in my view it’s important that the king, at the appropriate time, has the widest possible choice of a successor, and it’s important for Paki, as one of those two sons, to have the potential to be a successor in time.’

I mention in passing that Paki has also placed at least one rather unpleasant racist slur on his Facebook page, showing a photograph of a queue of Asian people who  are not only disparaged because of their eyes but are also referred to by the very bad c*** word. It appears also that he has used the nazi ‘sieg heil’ salute and also the shaka salute.  (I had to look up the shaka salute on Wikipedia after learning this, to discover that it is ‘often associated with Hawaiian and surf culture’ and also hang-gliding, and involves thumb and little finger sticking out of an otherwise closed fist. We’ve all seen it, we just never realised it had a name.) But evidently these two salutes, according to Dr Jarrod Gilbert, who should surely know, ‘are not just associated with the Mongrel Mob, they are the Mongrel Mob’.

Why is it, I cannot but wonder, that gangs and Maoris just seem to go together? I cannot believe that it is all injustice and oppression, I’m sorry. Plenty of other people are also poor and oppressed. Maori are not the only victims. I am forced to conclude that it is some aspect of the Maori cultural inheritance, some lingering atavistic tribal residue, which makes the criminal or marginal gang such a natural fit for so many Maori. You may reply that the arrangement is not much different from, say, that of the house-carles who followed their Anglo-Saxon lord, ate their bread at his table and supported him with their spears in his feuds; but our civilisation has developed since those magnificent but savage days. Maori culture, it seems, has not. It is still ~ as we are regularly officially reminded ~ a ‘warrior culture’. A warrior ~ as opposed to a soldier ~ is of his nature a gang-member.

And a culture is not a civilisation.

But I digress. To return to Paki ~ or Mr Paki, as Her Honour is careful to call him, whether out of her deep respect for the Maori throne or her belief that every little no-hoper ratbag deserves a lot more respect than you or I would be inclined to show him, who can say? I am not a criminal lawyer, and so I could not myself say whether the penalty imposed ~ or not imposed ~ Paki was discharged without conviction, but was sentenced to 120 hours of community service ~ was usual or abnormally lenient. But given that Her Honour specifically mentioned Paki’s illustrious birth and glittering future possibility ~ the throne! Think of that! A real throne! And a real king! And gold, and a crown, and everything… ~ as the reason for her sentence, and given also that the Crown ~ our one, I mean, the real one ~ is considering an appeal, it is pretty safe to assume, I think, that without Paki’s noble birth and splendid inheritance his sentence would have been heavier. Mr Dover Samuels has said that if a Maori youth in Tai Tokerau had committed the offences he would have gone to jail.

Just by the by, if you will forgive another digression, I would  have thought that regardless of whether there was an actual ‘conviction’ entered or not, the Tainui tribe would, even if name suppression had been continued, soon have heard of their young prince’s misdeeds. Nothing stays a secret for long. And surely what is really going to damage Prince Paki’s throne prospects would not so much be the technicality of whether or not he had a ‘conviction’ entered next to his name, as it is what he actually did which caused him to be hauled before the District Court. And nothing Judge Cunningham could do would be able to stop Tainui knowing and forming their own judgments. I would have thought, indeed, that Tainui would have had more respect for their erring scion of the royal stock if he had actually stood face to face to his errors, and been prepared to take the consequences and to change his ways. That would have taken some character and integrity. But that was not His Royal Highness’s way. Nor, it seems, did it even occur to Her Honour that such a course of action would best restore His Mongrel Serenity’s diminished mana. Is it not interesting that Her Honour’s own thought processes seem, if this is anything to go by, to believe that the best thing you can do for a criminal up before you is to let him off? Facing consequences like a man and doing your time just doesn’t come into it. I fear the philosophical rot in our judicial system may be deep-seated.

But to return. Here is a New Zealand judge who openly declares from the bench that a Maori of aristocratic birth should not be punished as other people should be punished, simply because of his status as aristocrat and possible heir to the throne of the Maori King. There is to be one law for the brown people ~ the well-born brown people anyway ~ and another for all those people of other colours. Bear in mind that the Maori ‘king’ is recognised only by the Tainui tribe and a few other King Country inhabitants. No other tribes see him as having any authority over them. Judge Cunningham has just announced the principle, then, that members of the Maori aristocracy are to receive lighter punishments. There is no reason why her principle should be limited to the Tainui tribe ~ other tribes have chiefs and heirs also. There is no reason why her principle should be limited to inheritance to rank and title ~ the same arguments that Her Honour used in this case could be used to justify discharging any other person of chiefly rank without conviction, because a conviction would damage their precious mana.

Well, it is one way of lowering prison numbers, I suppose, by not convicting the 15% minority responsible for 50% of serious crime, but that would, of course, be most unfair to those criminals who do not have the good fortune to be of the Chosen Race. And meting out more lenient punishments to those of Maori birth, or even some of those of Maori birth, will of course simply lead to more Maori crime. Why would it not, if punishment is not forthcoming? And what, I shudder to wonder, would Her Honour do then?

So here we have a New Zealand judge introducing racism and aristocracy into criminal punishments. You get a lighter sentence than anyone else if you are a member of the Maori aristocracy. Too bad if you are just a stupid common old white person. And this from a woman who has sworn, upon taking judicial office, to ‘do right to all  manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will’. Does she understand what these words mean? This woman is untrue to her judicial oath. She is unfit to be a judge.

George Orwell, I recall, once said that the reaction of every Englishman was to be a Bolshevik when reading the Tatler, a Tory when reading the People’s Voice. I know what he means. Usually I am on the side of the Scarlet Pimpernel, rescuing aristos from the tumbrils under the very noses of the revolutionary canaille; but right now I am with the revolutionaries. Down with racial privilege! Down with the petty stupid dictators who would fasten these chains upon us! A bas les aristos! Her Honour’s attitude is utterly intolerable in a New Zealand judge or a civilised legal system, and it must be rooted out at once. There is only one way to deal with ideas like hers.  Clearly, the time is coming when we shall have to speak up with increasing stridency in defence of our rights, if judges can think to dispense with them so casually. Kipling wrote of the Rule of Law ~

Whatsoever for any cause seeketh to take or to give
Power above or beyond the laws, suffer it not to live.
Holy Church, or holy State, or holy People’s Will;
Have no truck with the senseless thing; order the guns and kill.

Or holy Maori Race. Let us trust that we need to do so only metaphorically.