All other things being equal... except they aren't

Jamie Whyte's speech insisting "race has no place in the law" ignores the fact that the law has never been blind to race, let alone wealth, history and any number of other things

US Supreme Court Chief Justice John Roberts likes to say that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race", a sentiment ACT leader Jamie Whyte would applaud going by his Waikato conference speech this past weekend.

Arguing against that view, Justice Sonia Sotomayor has said, in fact, “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Those two points of view are indicative of where the debate is around ethnic equality and affirmative action, both in America and here in New Zealand.

One view looks at the law and sees just the individual here and now, the other sees a culture in the context of its history.

The fact Whyte, Roberts and others of that view come a cropper on is that the earth did not explode into life yesterday, our country was not born this morning. If it was, Whyte's argument for a purely blind justice would have merit.

Reading the speech, Whyte has been careful not to argue that Maori "privilege" has not meant Maori are "materially" better off (more on that in a minute, but he's wrong)). And he also says that the Waitangi Tribunal is exempt from his criticism because it exists to give redress for an abuse of property rights, something ACT supports (seeing the Treaty of Waitangi as purely a property rights document ignores its place in our constitution and is also wrong-headed).

But it's his take on blind justice that I have the most beef with. Look at this segment from the speech:

Everybody knows the image of Lady Justice in her Grecian robes holding the scales of justice while blindfolded. But many do not know what the blindfold is supposed to stop her seeing.

The answer is the identity of the person being judged. Justice requires that she pay no heed to who it is she is judging – she will make the same decision whether you are a man or a woman, a lord or a peasant, black or white.

Alas, the principle that the law should be impartial has never been fully embraced in New Zealand. Even today, after any number of equal rights movements, New Zealand law makes a citizen’s rights depend on her race.

The principle of Lady Justice being blind to all who stand before her is a wonderful premise. But we don't all stand before her equal. Injustices of the past, such as racist laws, land taken by settler governments and other sins of colonisation ripple into the present day. A fair and just system does not blind itself to that fact, but looks the past squarely in the face and acknowledges that no one is an island, but rather comes with legacies and baggage that he or she is not indivdually responsible for.

So justice demands that we tilt the present to balance up the past. It gives opportunity to those who don't have it in part because Lady Justice's blindfold has slipped many times before.

That's why affirmative action, such as places for Maori at universties, is right and fair. And it works. Whyte suggests that the legal privileges haven't meant material gain, but he's wrong in that. Since the Maori renaissance of the early 1970s and the arrival of affirmative action, many Maori social statistics (while still behind Pakeha) have improved. Life expectancy is catching up, education rates have improved, and so on). 

I doubt Whyte would pretend that Lady Justice has always been blind. He may even be honest enough to accept that he and perhaps his forebears have (directly or indirectly) benefited from that historic lack of blindness.

As Chimamanda Ngozi Adichie, in her novel Americanah, writes:

Many whites with the same qualifications but Negro skin would not have the jobs they have. But don’t ever say this publicly. Let your white friend say it. If you make the mistake of saying this, you will be accused of a curiosity called “playing the race card.” Nobody quite knows what this means. … If the “slavery was so long ago” thing comes up, have your white friend say that lots of white folks are still inheriting money that their families made a hundred years ago. So if that legacy lives, why not the legacy of slavery?

For slavery, insert colonisation (I'm localising New Zealand's experience of collective racism, not trying to make a proportionate comparision between the two). Which raises the question for Whyte, why would he take that benefits of non-blindness for himself but deny it to others? Don't you repay the debt?

Oh, and Whyte says we are individuals, not collectives and we cannot take responsibility for the wider groups we belong to (ethnicity, gender etc). Which is true to a point. But Maori were discriminated against and legally penalised as a collective. So it's logical that their grievances are addressed collectively as well.

But even if we ignore the past, as Whyte seems willing to do, why the focus on ethnicity alone?

If he's prepared to take a stance "race-based favouritism" and privilege, what about other kinds of privilege? How far will ACT go in its commitment to equality before the law?

Because there are other privileges that make you more equal than others in the eyes of the law.

First, we've recently seen the Maori King's Korotangi Paki, avoid conviction in part because that would have made ascending the Kingitanga throne impossible (or so his lawyers claimed). The penalty would have been disproportionate to the crime. But that view ingrains in law the view that those who have more to lose will be handled more gently by Lady Justice. She is not blind to a person's status. So will ACT vow to change that principle of the lawl?

Second, the rich get better lawyers. Kim Dotcom can take his grievance against the Crown about the raid on his property through every court imaginable, can appeal repeatedly and have the best QCs in the country in his corner. Lady Justice is not blind to wealth. Will ACT vow that every burglar gets the skills of a QC and the chance to appeal on every ground available?

If not, why not? Whyte's opposition is based on principle, and if he's going to take the philosophical high ground then he has to be consistent. If his principle is that Lady Justice must be utterly blind, then race is just one of many areas he's going to have to tackle.

Yet, again, if we go along with Whyte and say that racial inequality before the law must be addressed as a priority, what's ACT's plan to counter the reality, as reported by Just Speak last year, that young Maori are more likely to get prosecuted than young Pakeha?

As reported by Radio New Zealand:

The group says the statistics reveal that for 14 specified types of offence Maori are more likely to end up in court.

In the most extreme example, 46% of Maori who were apprehended for dangerous or negligent acts were prosecuted compared to 9% of Pakeha.

Even the minister, Chester Borrows, said "the numbers may come down to young Maori not having as many options in the court process to avoid prosecution".

Which means, they get treated differently. According to ethnicity. Today.

The fact is, Lady Justice is always peering through and around her blindfold. As Dame Susan Devoy has said, it's "naive" to pretend otherwise.