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ĀteaJanuary 5, 2019

When a judge slaps down a lawyer for a few words of te reo, it’s about power


Summer reissue: High Court judge Justice Timothy Brewer asked a lawyer if she was making a “political point” by introducing herself and her client in te reo Māori. Sociolinguist Vini Olsen-Reeder unpacks the bias underpinning those comments. 

This post was first published 12 November 2018.

Headlines about things Māori often seem to miss the point. “High Court judge asks if interpreter needed following lawyer’s comments in te reo” is the headline about an exchange between a judge and a lawyer. The judge is apparently angry the lawyer has introduced herself in te reo Māori in a court room, and the story presents several statements from the judge which are quite concerning to read. The original story talks a lot about interpretation, the relevant legislation Te Ture Mō Te Reo 2016, how people have the right to interpretation in courts, how they have to organise it in advance, and how courts have processes to provide for that. To be fair, it’s a well-researched article about interpretation.

This story isn’t about interpretation though. Nor is it about Te Ture Mō Te Reo Māori, or even necessarily about a courtroom. It’s about what happens when one person thinks they have a language subtraction right they don’t have, and they use it to extinguish the language rights another person does have. I’m pretty surprised this still plays out in a courtroom, but perhaps I shouldn’t be. This story isn’t about interpretation but about power, and the power dynamics of language choice in Aotearoa New Zealand.

Power is everywhere. The dynamics of power in relation to te reo Māori happen every day in the lives of many who use the language. It’s usually situated in a big, wide world where the nasty stuff is easily lost to time. Most goes unnoticed, although the more horrific events are captured by the media, like when adults attack kids for speaking Māori. That’s power coming out to play – always go for the person you think has the least of it.

If you condense all of that stuff into a single room, though, power dynamics become much clearer to spot. I want to recount what reportedly happened in a New Plymouth court room between Justice Brewer and lawyer Zannah Johnston, and comment on the different parts of the exchange. After a brief introduction in Māori here’s what happened:

Justice Brewer: “As a matter of curiosity, did you attribute to me an ability to speak Māori?

Johnston: “No, sir. It’s the convention of the Crown Law office to …

Justice Brewer: “Mystify judges.”

Johnston: “To use one of the nation’s languages.”

Let’s be clear here, we’re not talking about lengthy Māori-language statements that might affect the trajectory of decision-making in a courtroom. We’re talking about a short introductory statement – the kind that will get you thunderous applause if you’re royalty. Justice Brewer probably didn’t need to clap, but the fact is that this is just stuff that happens all the time. Royals do it for claps, multilinguals do it because it’s what multilinguals do every day. And if we’re clappy for internationals to do it on the fly, we have to accept it as normalised, spontaneous behaviour that could happen at any moment, without an interpreter.

It seems the judge felt put out by something to do with language membership (“did you attribute to me an ability to speak Māori”). I mean, it’s sad that anyone in New Zealand should feel like they can’t be part of the Māori speaking population, but Johnston is really clear about her intention (“it’s the convention of the Crown Law Office”). Because of that clarity, the conversation should have ended there. It doesn’t, and Justice Brewer interrupts her to answer his own question (“mystify judges”). This again suggests the judge is angry about something to do with language membership, to ‘other’ him. New Zealand was once described by Ray Harlow as ‘doggedly monolingual, both in practice and in attitude’, and I wonder if the New Zealand attitude is to reject the multilingual world because we just don’t know how to belong one in the same way say, Europeans do, and can’t be bothered learning. I think that’s really sad. English is our most widely spoken language, and we probably assume it’s powerful because it’s all we see. But look outside of English and you’ll find there are bigger languages with more speakers and as much reach and status. There are countless places on Earth where English is entirely useless. Everyone, especially if you only know one language, needs to learn how to belong in a multilingual society.

I’m a sociolinguist so I always look at the societal relationship to language, but there’s another side to this: the legal side, the fact that this takes place in a court room. Johnston clearly points out she was merely exercising part of her role as a lawyer, embedded by her workplace – part of the lawyer gig. I think Johnston understood something here that maybe not everyone does. All people entering court rooms in Aotearoa New Zealand, backed by a coat of arms that shows both Treaty partners side-by-side, simply need to accept the multilingual reality that coat of arms represents. Surely that’s part of the job too. We have two official languages given status under law, te reo Māori (Te Ture mō Te Reo Maori 2016) and New Zealand Sign Language (New Zealand Sign Language Act 2006). Both are accepted as carriers of national identity. They’re legitimised and validated by their users, and, to a lesser degree, legitimised by the New Zealand legal system. That’s the same system that legitimises a court room. People have the right to choose to use them, and people seldom have the right to order people not to. This raises a question for me: because they’re official by law, does chastising their users step outside of the confines of those laws?

Justice Brewer labours the exchange by asking if Johnston “was making a ‘political point’”:

“… because you are not using it as a means of communication. You are using it as a means of making a point.”

Johnston has already been quite clear about her language choice – speaking Māori is a workplace event. Justice Brewer disagrees again, claiming it was a “political” move. Saying that is a political act in itself. ‘Political’ what? What does that even mean? When someone asserts te reo Māori is being used in a ‘political’ way, it suggests to me that the asserter is more politically charged in their own comment. I do wonder then, what Justice Brewer’s own political assertion was in saying that?

Johnston said she meant no disrespect.

When people choose to speak Māori they never do mean disrespect. They’re just talking. Because it’s a language. I feel like Johnston is apologising, and shouldn’t have had to.

Justice Brewer told her that he had taken te reo lessons.

That’s great, everyone should, but I’m very uncomfortable with that idea that taking some classes gives one power to control the language use of another.

“As I say, I welcome it and I like it to be spoken in the courtroom but I have to understand it, which is why the High Court Rules provide that a period of notice is given so that an interpreter is arranged.”

I’m not convinced that te reo Māori really was welcome in that courtroom. In any case, the argument here is that those who don’t speak Māori absolutely have to understand everything, all the time. This is sort of like when people hear another language on the bus and think its speakers are saying mean things about them. Again, people are just talking, and not everything is about you! In any case, when I use to hear Māori I didn’t understand I tried to learn more. Surely a natural thought for a Māori learner would be to use that as a learning exercise. I’d have thanked that lawyer.

“Possibly a needless distraction.”

This entire exchange was a needless distraction for the court room, but Johnston didn’t initiate it. Blaming it on her is an unfair power play that makes me super uncomfortable as a citizen of a multilingual country.

I’ve been privileged to meet some incredible judges over the years who are doing great things for te reo Māori. I’m excited by the number of lawyers being admitted to the bar in te reo Māori, and the loud voice of Māori lawyers who support the use of te reo Māori in their work. But I also think some over-exaggerate the role of English in the legal history of New Zealand, and under-exaggerate that of te reo Māori. I also think they misunderstand the role power plays in all this.

Dr Māmari Stephens points out, “Of course in our bicultural and bilingual legal history Māori has been a language of law. For example in parts of the 19th century, depending upon which governor was holding the reigns at the time.”

It all depended on the governor and how oppressive they felt like being – it wasn’t about law, or interpretation. It was about individual power, and the choices they made on the day.

Keep going!