By Veisinia Maka

Pasifika lawyers being mistaken for criminal defendants when they enter criminal courts in Aotearoa New Zealand has become something of a common occurrence. In a way, it feels almost like unwritten court etiquette. And perhaps it is - the systemic bias towards Pasifika people in the justice system means that the system fails to recognise that a Pasifika person could be anything more than a criminal defendant, and much less a lawyer.

Earlier this year, when high-profile Pacific lawyer Tiana Epati was mistaken for a criminal defendant while making her way into a courtroom, it sparked conversations within the legal community, particularly among those of Pasifika descent. The response on social media demonstrated that many more people understood this incident or had had a very similar experience.

‘It’s somewhat of a “running joke” for Pacific lawyers (and probably our Māori colleagues too) about being mistaken for everything but a lawyer at court.’ says Minter Ellison Rudd Watts Solicitor Maria Sopoaga.

The predictability of incidents such as these raises questions around whether our legal culture has become so outdated that it has failed to recognise that a strong Pacific legal community is growing in Aotearoa.

Pacific Island Law Student Association Co-President - David Tupou says; “I'm not surprised at all. With the Pacific overrepresentation in our prisons and criminal justice system and the negative culture around Pacific people as seen in largely Pacific populations such as South Auckland, it is saddening that this happened to Tiana but comes as no surprise.”

So much is true - nobody in the Pacific legal community seemed surprised that a high-profile lawyer who was previously the president of New Zealand’s Law society could not escape an experience such as this.

I’m not entirely sure what’s more concerning, that incidents such as this are still occurring or that no one outside the Pacific community seems to be shocked by a Pacific lawyer being mistaken as a criminal defendant. Only the Pasifika media site CoconetTV reported on Tiana’s incident, making one wonder whether incidents such as this have always occurred but rarely discussed.

This brings forward two questions: First, in 2022 why have incidents such as this become so heavily ingrained that they are taken for granted in our legal culture?  Secondly, how can we open our arms to reflect the communities we are representing?

Improvements have been made to the criminal justice system to reflect the communities we serve,  such as the inclusion of our rangatahi courts and restorative justice. But what about the legal culture as a whole? How can we expect to serve Pasifika defendants in Aotearoa, if there persists a stereotype that all Pasifika people are inherently criminals? Even when Pasifika people become lawyers in an attempt to help their community, they are forced to assimilate into a Court process that is so blatantly biased towards Palangi.

The discriminatory effects of this bias go beyond Tiana Epati’s experience, it is deep within the justice system. Moana Jackson writes:

“Of all our institutions, the courts are probably the most determinedly monocultural, from the English rituals of procedure to the very language of the law. The influence of the myths and conventions of fundamental impartiality have led to a belief that the process is innately fair and that the Pākehā way is the right and proper way of doing things”.[1]

 

Moving Forward

New Zealand’s largest University, the University of Auckland stated that 912 students of Pacific descent graduated in 2020. 912 Pacific students are simply trivial to the 43,000 students who attend the University overall. In law school alone, only 39 students of Pacific descent graduated in 2020.

 It’s safe to say that as a legal community, we’ve become so comfortable with incidents where Pacific lawyers are mistaken as criminal defendants because there are simply not enough Pacific people in the legal profession to change the status quo. But that doesn’t mean we need to be complacent about it. 

“It is somewhat discouraging that it makes you think, if Tiana Epati, a well-known lawyer, with her amazing work ethic and term as president of the NZLS is being mistaken for a defendant, then us new graduates have no hope. However, if anything it is still encouraging and gives me hope in the sense that the more we shine a light on this area of society, the better chance we have at changing our society's perception of Māori and Pasifika.” recent graduate Agnes Meredith-Leiataua says.

And like Agnes, many of our law students are transitioning into the world of Law. And in true Pacific fashion, we need to understand the role we individually have in ensuring that the process of reciprocity includes much more than articles being published on incidents that continue to repeat themselves, only for apologies to be made. The truth is that prejudice continues to breathe in our legal culture and community. If the Dawn Raid apology taught us anything, it’s that apologies mean nothing if we’re not willing to break the boundaries.

Solicitor Maria Sopoaga says; ‘I despise the notion that we should be the ones who have to be “more resilient” – Pacific people are the most resilient people I know. While I can’t promise you’ll never have an experience like Tiana did, I can promise you that there are Pacific lawyers in the profession really trying to shift the dial. We’re here to help each other. While we only make up 3% of the legal profession in Aotearoa, our community is unmatched, and I draw a lot of strength on the support of other Pacific lawyers every day.’

We’re taught at the early stages of law school that judge-made law is the precedent to ensure consistency (I can already hear the trauma as many remember Law 121). But Law 121 aside, what we’ve failed to do as a law community is set the precedent on what is acceptable and unacceptable within our own legal culture because the only consistency I’ve seen is the preservation of colonial mentality.

‘I hope this incident teaches both Pacific law students and the law community in general that there will always be work that is needed to be done for our Pacific community. We are slowly progressing and reaching milestones for our community, however, if incidents like this keep happening, we need to do more.’ says Agnes Meredith-Leiataua, Graduate Policy Advisor - Civil Law and Human Rights Team at the Ministry of Justice.

As the legal field continues to diversify in backgrounds, processes and experiences it’s important to understand that instead of building resilient professionals, we also need to be building a resilient system that is grounding in reflecting how flavourful our legal profession can truly become.

Understand that this conversation is much larger than an amicus curiae article. It requires each and everyone of us to understand that we all have a role to play in order to break the mold.

‘[We need to have a] very honest and hard conversations that I still try to navigate and bring up on my own. It gives me anxiety to call out someone out at times because sometimes I don't feel equipped to point out a wrong. But it seems as if starting the conversation is a big first step and can be a platform for growth for all parties involved which is always good.’ PILSA Co-President David Tupou says.

And like Mr Tupou suggests, the most radical thing we can do is start the conversation and redirect the narrative from Pacific criminal defendant to Pacific criminal defence lawyer. Sometimes our role in that conversation looks like a genuine head nod when a young Pacific woman is addressing her concerns about the lack of cultural competency in front of her entire law firm. And sometimes, it’s a simple ‘mmm’ in the back of your criminal law lecture when a young Māori talks about the issues of institutionalised racism. Building a space that is reflective of values that are based on mutual respect and understanding doesn’t require big performative gestures, sometimes it’s the simplest gestures that set the precedent of what values we want to be embedded in our legal culture.

When I graduate from law school alongside my peers, I want to be part of a community and a culture that not only is consistent in its legal reasoning but also in its morals. We simply cannot advocate for integrity of judicial decisions but fail to consistently uphold the integrity of people themselves. Never forget that equality is what justice purports to seek, and we should constantly be working to hold it to that standard. 

The question is, what sort of role are you willing to play to build a legal culture that our next set of graduates will be proud of?

 

Thank you to Maria Sopoaga, Agnes Meredith-Leiataua and David Tupou for taking the time to provide comments for this article.

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Featured image source: Flickr.

[1] Moana Jackson He Whaipaanga Hou: Māori and the Criminal Justice System – Part 2 (Ministry of Justice, 1988) at 131.