Compelled Observance

Karakia in the Public Space

Introduction and an example of Compelled Observance

This is an article about prayer and whether or not it should be compelled. History is replete with examples of compelled prayer. Even although Elizabeth I professed no desire to make windows into men’s souls which meant that she did not want to impose ways of interpreting the common prayer book, nevertheless the Act of Uniformity 1558 regularised prayer, divine worship and the administration of the sacraments in the Church of England.

In so doing, it mandated worship according to the attached 1559 Book of Common Prayer. The Act was part of the Religious Settlement in England instituted by Elizabeth I, who wanted to unify the church. Other acts concerned with this settlement were the Act of Supremacy 1558 and the Thirty-Nine Articles.

There were those who resisted and were known as recusants – those who remained loyal to the Catholic Church and refused to attend Church of England services.

The combined pieces of legislation are known as the Recusancy Acts and were temporarily repealed in the Interregnum (1649–1660) but remained on the statute books until 1888.

They imposed punishments such as fines, property confiscation and imprisonment on recusants.

Their suspension under Oliver Cromwell was mainly intended to give relief to Nonconformist Protestants rather than to Catholics, to whom some restrictions applied into the 1920s, through the Act of Settlement 1701, despite the 1828–1829 Catholic emancipation.

In some cases those adhering to Catholicism faced capital punishment, and some English and Welsh Catholics who were executed in the 16th and 17th centuries have been canonised by the Catholic Church as martyrs of the English Reformation.

Today, recusant applies to the descendants of Catholic families of the British gentry and aristocracy.

State-compelled religious orthodoxy or observance is no longer present. Indeed section 13 of the New Zealand Bill of Rights Act 1990 provides that

“Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.”

So the State cannot compel religious observance. Or can it?

Statements About the Place of Karakia

Gary Judd KC

Gary Judd is a lawyer and Kings Counsel. He has engaged in litigation, principally in areas of civil and commercial law, administrative law, copyright and other intellectual property, and taxation.

As Chairman of ASB Bank from 1988 until his retirement in August 2011, he oversaw its growth from a modest, regional savings bank with assets of less than $2 billion to a nationally operating, full-service financial institution with assets of over $60 billion.

From 1998 until his retirement from ASB he chaired associate company ASB Group (Life) Ltd owner of New Zealand's largest life insurance company (Sovereign) and also chaired Ports of Auckland Ltd for three years.

In January 2012 he concluded his three-year term as a New Zealand Prime Ministerial appointee to the APEC Business Advisory Council (ABAC) where he became a co-chair of the ABAC Advisory Group on APEC Financial System Capacity Building.

Mr. Judd started law school a year before I did and our paths crossed at University as one would expect. Since I retired from judicial service I have had a little more to do with Gary and we share similar points of view on a number of matters.

Mr. Judd’s CV is impressive. He has brought his commercial and legal skills to a number of tables with outstanding success. He is a fine lawyer, analytical, careful, not one to rush to a conclusion but always measured and precise. He would probably be described – as I describe myself – as a black letter lawyer.

Recently Mr Judd has been voicing concern at the way certain elements are intruding into the law that do not properly belong there. He opposed the compulsory teaching of tikanga as a stand-alone law course and the introduction of tikanga as an element in compulsory courses such as torts, crimes, equity and the like. He made an application to the Regulations Review Committee of Parliament and was partially successful. Tikanga as a compulsory stand alone course remains. But the incorporation of tikanga into other compulsory law courses was seen as an overreach.

Mr Judd has become involved in another issue. In his Substack “Thoughts from the North” he recorded a proposal that lawyers in the North were sent whereby Court proceedings would begin and end with a karakia.

Karakia Defined

Before proceeding I should define karakia. In this exercise I am aided by an article by Warren Pyke, a barrister, who has written a piece for Law News entitled “How karakia fit into our justice system”

Mr. Pyke defines karakia as

“ritual chants invoking spiritual guidance and protection. They emerge from Māori cultural myths and practices and are nowadays generally used to secure a favourable outcome for important events such as tangihanga (the ritual of farewell to deceased) and hui (meetings), although karakia can occur at diverse times and places, such as urupa, on marae, pa or in homes.

The many and varied uses of karakia among the southern tribes was recounted in detail by James Herries Beattie in Lifeways of the Southern Māori (Otago University Press, 2024 ed.). Beattie’s book was edited by Athol Anderson from painstaking ethnological studies carried out in the 1920s: it sources from a wide variety of oral histories and preserved accounts. Beattie casts light on the meaning of the word ‘karakia’, observing that while it is often translated as prayer, this meaning does not align with the practice of ‘prayer’ in Christian belief.

Karakia are traditionally an invocation addressed to some particular god at some particular moment, for some particular purpose (Beattie, at 207). For example, to give protection to a fishing expedition. The effect of karakia could be heightened by mystical references, but historically they invoked some god in order to bring about or prevent something from occurring; sometimes tohunga or kaumātua would deliberately obscure their meaning when chanting karakia in order to shroud their intent, which might be benign or intend harm (Beattie, at 207)…..

There has been a modern resurgence of karakia, some of which may call upon traditional Māori atua (gods/guardians) and which may convey traditional imagery and metaphors. To truly understand traditional karakia requires an in-depth knowledge of Māoritanga.”

Thus in summary it may be said that karakia are traditional Maori spiritual invocations, used to seek spiritual guidance, protection, or support from ancestors, the natural world, or spiritual beings. They are a way of connecting with wairua (spirit) and the spiritual realm, tipuna or ancestors, atua (gods or spiritual beings) and the natural world which is considered to be alive and interconnected.

As such they would fall within the scope of manifestations of religion and belief in section 13 NZBORA.

Mr. Judd’s Articles Reviewed

Mr Judd has written several articles on this subject which I propose to review and will then review the argue advanced by Warren Pyke, which largely supports Mr. Judd’s position.

Mr. Judd’s first article is entitled “It never rains, but it pours Freedom of thought and conscience under attack everywhere”. The article discusses the proposal to introduce karakia in New Zealand courts and its implications for freedom of conscience.

The article develops in the following way.

First, Mr. Judd looks at the proposal for Karakia in Courts

Lawyers in Northland were asked for comments on a proposal to end court sessions with karakia. ​

Mr. Judd argues that New Zealand is a secular country, and such practices infringe on freedom of thought and conscience. Thus the proposal is seen as a violation of Section 13 of the New Zealand Bill of Rights Act 1990. ​

Secondly Mr. Judd turns to legal precedent and references the Privy Council decision in Commodore of Royal Bahamas Defence Force v. Laramore, which upheld the right to freedom of conscience. ​

The case involved a member of the Defence Force who objected to mandatory Christian prayers, leading to a ruling in favour of his rights. ​

Mr. Judd then turns to consider the broader implications of the proposal and highlights concerns about the gradual incorporation of Māori culture and language into New Zealand's legal system. ​

There is a perception that these changes are being made without sufficient public debate or democratic consent. Judd suggests that this could lead to significant cultural shifts and potential co-governance without explicit public approval.

The article argues that the karakia proposal infringes on individual rights by requiring participants in court proceedings to be present during the karakia, which may interfere with their freedom of thought, conscience, religion, and belief. ​

This is seen as a violation of Section 13 of the New Zealand Bill of Rights Act 1990, which protects the right to adopt and hold opinions without interference. ​ The proposal compels individuals to partake in a religious or cultural activity, potentially against their beliefs or conscience, thereby hindering their enjoyment of these freedoms.

The article further argues that the karakia proposal conflicts with New Zealand's secular nature because it introduces a religious or cultural practice into state activities, such as court proceedings. ​

As a secular country, New Zealand is expected to maintain a separation between religion and state, ensuring that government activities remain neutral and inclusive of all beliefs. ​

Incorporating a karakia into court procedures challenges this principle by embedding a specific cultural or spiritual practice into a state function, which may not align with the beliefs of all participants

Furthermore, the karakia proposal conflicts with judicial duties by infringing on the judicial branch's obligation to uphold the rights and freedoms guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA). ​

Specifically, Section 13 of the NZBORA protects the right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference. ​

By requiring participants in court proceedings to be present during a karakia, the proposal imposes a cultural or spiritual practice on individuals who may not consent to it, thereby interfering with their protected freedoms. ​

This undermines the judiciary's duty to ensure impartiality and respect for individual rights in its processes. ​

Mr Judd then followed with a second article a week later entitled “Karakia in judicial proceedings”. In that article he records that he had followed a suggestion that he should write to the Attorney-General and the Minister of Justice about the matter as well as the Chief Justice Dame Helen Winkelmann. Copies the letter were sent to the Prime Minister and to the leaders of ACT and New Zealand First.

The response was that the Chief Justice's office stated that there were no plans to make karakia compulsory.

It also transpired that the initiative was that karakia initiative is part of a cultural uplift effort, but its implications for the legal system are being questioned.

The Chief District Court Judge is currently gathering information about the initiative before making further decisions.

The karakia proposal was a part of the implementation of the Te Ao Marama programme which has been advanced by the Chief Judge.

The karakia aims to unify participants and ensure respectful proceedings, recited in both te reo Māori and English. ​Counsel must be present when the judge enters and cannot leave until the court session concludes. The Court plan was to implement the recitation of karakia in te reo Māori and English during sessions by Matariki, seeking feedback by April 25, 2025, for effective integration.

The proposal sets out certain guidelines for reciting karakia in Court. This does not sound like a proposal to me but a decision upon which feedback is sought. The guidelines are as follows:

Timing:

Karakia would be recited at the opening and closing of court sittings. ​ The judicial officer must be present in the courtroom before the karakia is recited. ​

Responsibility:

In most cases, the court registrar would recite the karakia. ​

Language:

The karakia will be recited in both te reo Māori and English. ​

Display:

Large prints of the karakia will be installed in each courtroom for participants to read along. ​

Exclusions:

Certain court events, such as jury trials, pre-trials, registrars' lists, tribunals, and judge-alone trials, have been identified as instances where karakia would not be used. ​

Feedback and Implementation:

Feedback was sought from stakeholders to refine the rollout of this change, with implementation planned around Matariki. ​

These guidelines aimed to bring participants together, focus their minds on the proceedings, and promote smooth and respectful court sessions.

Issues Arising

Mr. Judd points to a number of issues arising from these proposals

Freedom of Religion and Belief:

It is argued that requiring participants to engage in or be present for karakia may infringe on their rights under Section 13 of the New Zealand Bill of Rights Act 1990, which guarantees freedom of thought, conscience, religion, and belief. ​

State Neutrality:

The inclusion of karakia is seen as a departure from the state's obligation to remain neutral in matters of religion and belief, as required by the New Zealand Bill of Rights Act. ​

Religious Expression:

While it is claimed that the karakia is not tied to any specific religion, it is argued that it contains spiritual and religious elements, making it a form of Māori religious expression. ​

Cultural Indoctrination:

Some view the practice as an attempt at cultural indoctrination, exposing participants to Māori language and customs without their consent. ​

Unsolicited Participation:

Concerns are raised about participants being required to engage in or witness karakia without being asked for their consent, potentially making them uncomfortable. ​

Judicial Neutrality:

The practice is seen as a departure from the judiciary's tradition of neutrality, which has historically avoided imposing any form of religious or cultural expression on participants. Furthermore, traditionally Judges are in charge of their own Courts. This amounts to an imposed procedure which impacts upon that independence. ​

Comparison to International Precedents:

The document references a Privy Council decision in the Bahamas, where requiring participation in religious activities was deemed a violation of freedom of conscience, drawing parallels to the karakia practice. ​

Purpose of "Cultural Uplift":

Critics question whether it is the court's role to provide "cultural uplift" to participants, suggesting this may be an unwarranted spiritual or cultural intervention. ​

These concerns highlight potential conflicts between the practice of reciting karakia and the principles of individual rights, state neutrality, and judicial impartiality. ​

Mr Judd’s third article was entitled “Why we have the Right to Freedom of Thought, Conscience, Religion, and Belief” and is a more philosophical or background piece to his concerns about the use of karakia in Court.

In summary Mr Judd makes the following points.

​Freedom of Thought is Foundational ​

Section 13 of the New Zealand Bill of Rights Act 1990 recognizes the right to freedom of thought, conscience, religion, and belief. ​

This right is fundamental and underpins the right to freedom of expression. ​

The Free Speech Union and similar organizations advocate for free speech, but less attention is given to freedom of thought. ​

Interference with Freedom of Belief ​

Janet Dickson, a real estate agent, faced legal challenges for refusing a mandatory course on tikanga that conflicted with her beliefs.

Her case highlights potential infringements of Section 13 of NZBORA regarding freedom of thought and belief.

The outcome of her appeal may set a precedent for similar cases involving compelled education on cultural norms.

Morally Reprehensible Interference ​

Compelling individuals to conform to certain beliefs undermines personal identity and autonomy. ​

The process of growing up involves forming personal beliefs, which should not be coerced by external pressures.

John Stuart Mill's concept of social tyranny emphasizes the dangers of societal pressure to conform. ​

Enslaving the Soul ​

The right to freedom of thought protects individual identity and personal beliefs from coercion. ​

Beliefs may evolve naturally, but should not be forced upon individuals by those in power.

The document argues against the imposition of beliefs, particularly regarding Māori views, on others.

Māori View of the World ​

The right to hold beliefs, including Māori perspectives, should not be imposed on others. ​

Tikanga Māori represents a collective conscience but should not dictate individual beliefs. ​

Individuals have the right to accept or reject cultural norms without interference. ​

Wicked Misuse of State Power ​

NZBORA protects against government overreach in matters of personal belief and identity. ​

Only government entities have the legal power to compel actions against individual will. ​

State neutrality is essential to prevent the misuse of power in imposing beliefs on citizens.

Thus, we have from Mr Judd a coherent and reasoned critique of the proposals, solidly grounded in law and principle.

Mr. Pyke’s Position

It is at this point that a detailed assessment of the proposal is examined by Warren Pyke and I turn to his article.

Mr Pyke observes

“Although I am neither a Christian nor a believer in the Māori gods, I have been present when karakia have been chanted on marae and pa. Karakia can create a special atmosphere and empower Māori to express themselves in ways that are appropriate to the occasion or place. Such use of karakia is a matter of choice for the tangata whenua or their kaumatua.”

In summary Mr. Pyke starts with a definition of karakia which I quoted at the beginning of this article. He then develops two main themes – those of the modern context and challenges surrounding karakia and the legal and ethical considerations.

The matters arising within the theme of the modern context recognise that the resurgence of karakia incorporates both traditional Māori and Christian elements, reflecting a blend of cultural influences. ​

However, courts are not spiritual spaces and the general use of karakia may alienate those unfamiliar with Māori culture or te reo Māori. ​

In addition. communication barriers arise when karakia are not translated, potentially excluding non-Māori speakers from understanding.

As far as the legal and ethical issues are concerned Mr. Pyke notes the Bill of Rights Act ensures freedom of cultural belief, preventing imposition of one culture's practices on others in court. ​

However, although the Treaty of Waitangi protects Māori culture it does not justify imposing it on non-Māori individuals and within the Court context the focus should be on delivering justice rather than cultural indoctrination, emphasizing the need for improved court administration and resources.

Mr Pyke makes a very clear articulation for why karakia should not be used in Court. He makes the following clear statement:

“In summary, karakia is not culturally neutral. Karakia may consist of invocations to certain gods or it may consist of benign incantations, emanating from tradition or from the creative mind of the chanter. But unless the hearer knows and understands te reo in its cultural context, karakia chanted other than in traditional settings risks becoming performative.

The purpose of courts is to deliver justice: not to educate, not to indoctrinate and not to convert.

No-one appearing in a court of justice should be expected to participate in or be required to passively acquiesce in the cultural practices of another group. The courts exist to deliver justice to all the people of New Zealand. All court users are entitled to freedom of cultural belief and practice, by virtue of the Bill of Rights Act. Under New Zealand law no-one, whether in a position of authority or not, is entitled to impose others’ cultural beliefs and practices on people who do not believe in them.

While the Treaty of Waitangi preserves and protects Māoritanga, it does not authorise its infliction on non-Māori. We live in a modern multicultural, open society, not an early 19th century colony when large swathes of the country were governed by rangatira, who were guided by the superstitions of tohunga.

Times have radically changed. Tolerance of cultural difference is required from us all, particularly from those in authority, whether Māori or not. Which means we ought not to inflict our beliefs on others who may have no choice other than to sit and listen after being compelled to attend a courthouse, and who will often be oblivious as to the meaning and significance of a karakia, an experience which might be unfortunately alienating for some people.

In conclusion, other than instances which I have identified, I am against the ritual use of karakia in the civil and criminal courts.”

Bold, indeed brave words, but words which need to be said. Putting one’s head over the parapet on topics such as these is a dangerous business and one which attracts ire from a number of quarters.

But if the essence of our individual freedoms, guaranteed by law, are to be preserved, commentators like Gary Judd KC and Warren Pyke are needed and should be commended. The preservation of liberty and our freedoms requires eternal vigilance and reminders about them lest they be gradually and incrementally eroded.

The Bigger Picture

So far I have considered the use of karakia within the Court system and I fully endorse the sentiments expressed by Gary Judd KC and Warren Pyke.

But the issue is wider than that. Karakia often are used as an introduction to meetings, especially in Government departments. And in some departments the articulation of the karakia is assigned to individuals within the department on a random basis. This means that a person who may have no background in te reo and no affinity with the spiritual foundations that lie beneath the karakia is required to embark upon an activity that may have religious or quasi-religious significance with which they may not agree and indeed which may be contrary to conscience.

Yet in today’s interpretation of “tolerance” to decline to participate is seen as racist while in reality it is an affirmation of the freedom of conscience guaranteed by NZBORA.

NZBORA contains guarantees of rights and freedoms and to protect those rights and freedoms from State interference.

Within the context of Government Departments, the requirement to be present at, to participate in or indeed to lead karakia is an abrogation by the State of those rights and freedoms guaranteed by section 13.

If there is a desire by Government departments to have an opening ritual before meetings or gatherings that involves a religious or quasi-religious observance, let it be voluntary coupled with a guarantee that there will be no adverse consequences visited upon those who choose not to participate.

To require participation by presence is as much an interference with one’s section 13 rights as a requirement to be present at an opening and closing karakia in Court.

But the picture is an even wider one than a form of compelled religious observance in Government departments.

Many NGOs and private organisations have, for reasons of their own, but which probably reflect their desire for “virtue signalling” and to demonstrate their tolerance, required karakia to be articulated at meetings. The recent SGM of InternetNZ commenced with such a karakia.

This is not in fact a demonstration of tolerance. It is a demonstration of intolerance. An unwillingness to accept and recognise the diversity of beliefs that the mandatory participation in karakia subverts. In some respects this reverts back to the mandatory requirement to participate in Church of England worship in the days of the first Elizabeth and afterwards.

This is not to say that karakia do not have a place. They do indeed. Place and context are critical. Ceremonies associated with marae, tangi or hui convened by and for Maori are an example. In such a situation one who does not subscribe to the beliefs that underpin a karakia may make a choice not to attend or may put to one side the challenge to beliefs posed by the karakia and treat it as a symbolic, metaphorical, spiritual or animist observance and move on to the business of the occasion.

But the fundamental issue is whether or not there should be compelled participation in karakia on any occasions other than one that has a specifically Maori cultural element.

The answer must be no, in the same way that no one can be compelled to recite the Lord’s Prayer, the Shema of Judaism or the istitna from the Qu’uran. The basis lies in the freedom of conscience, belief and religion. We are meant to have come a long way from the compelled observance of the days of the first Elizabeth.

Or have we?