Te Pāti Māori case: Can the High Court really force people to be friends again?
Wednesday, 4 February 2026
OPINION: He might make half a million dollars a year, but it is hard to be envious of Justice Paul Radich.
The accomplished High Court judge is currently tasked with working out whether Mariaemeno Kapa-Kingi was legally expelled from Te Pāti Māori (TPM) – and thus whether the party gets to move into election gear or continue to focus on itself. He is being asked to potentially intervene right into the heart of politics in a way that could quite easily change the fate of the election. No pressure.
Perhaps “legally expelled” is putting it strongly, as this suggests that her expulsion broke some kind of iron-clad legislation handed down by Parliament.
Instead, her lawyers are contending that TPM broke the rules of its own constitution in a multiplicity of ways. Essentially they point out that the stated grounds for her expulsion were wrong, the National Council that made the decision did not do it correctly, the National Council was the wrong group to even make that decision, and even if it was it was not properly constituted when it met.
Read more:
High Court forces Te Pāti Māori to re-admit MP Mariameno Kapa-Kingi after expulsion
Unscrambling an omelette: Te Pāti Māori case asks court to consider what a party really is
The party’s constitution is the real weapon her lawyers have – it’s a total mess. It seemingly has two totally different mechanisms for expelling people. It suggests a council that if fully constituted would have dozens and dozens of members. It suggests that the party’s president should “rotate” on a three-yearly basis – ammo for her lawyers to argue that John Tamihere shouldn’t even be president right now.
TPM’s lawyers must trudge through this thicket of confusing clauses to explain why the expulsion of Kapa-Kingi was just.
Their most convincing line of argument leaves the constitution aside and moves to the wider world of politics – where the lawyers argue party leaders need wide discretion if their party is being brought into disrepute. Davey Salmon KC made the point that the judge and all the lawyers were not experts in politics or PR, but Tamihere might be – and thus should be given some remit to make fast-paced calls about the “disrepute” the party was being brought into by Kapa-Kingi.
This argument relies less on Kapa-Kingi’s own statements than her lack of distancing herself from her son’s public statements attacking the party.
There was some sign that the judge was tempted to move away from a strict reading of the constitution when deciding the case. He asked Kapa-Kingi’s lawyer how he might react if the case was decided on a wider “fairness” basis rather than just on a breach of the constitution. That means the judge could eventually decide that even if the party didn’t quite cross the “Ts” or dot the “Is” while it expelled her it still had a good reason to do so and the process was undertaken fairly. (Her lawyer was confident that even through this lens she was still in the right.)
You could certainly understand the judge being somewhat reticent here. Already it is unclear if the party has even properly responded to the the interim order to reinstate Kapa-Kingi – she is still sitting as an Independent in the House, and the party hasn’t written to the Speaker to make clear she should be treated as a TPM MP again. You could make the argument that he is able to make her an MP of the party again outside of Parliament – able to attend annual general meetings and the like – but not sit with the party in Parliament. But what is the point of a party if it is not to sit in Parliament together?
Then, if you force the party into that, where does it stop? Is there a legal order stopping the rest of the party meeting without her and deciding on party policies? This is both the heart of actually existing party politics and an incredibly social thing, a group of people voluntarily meeting to decide how they should act together.
Judges are occasionally happy to force employers to take back employees they wrongly fired, but it’s hard to imagine one forcing a small friend group to re-admit an errant member. And this is the kind of friend group courts like to stay away from – the principle of “comity” generally holds that the judiciary should leave the workings of Parliament to the politicians, especially in the absence of clear, black-letter law.
On the other hand, if the judge does believe the expulsion breached the constitution, can he really let the issue lie in the interests of comity? Shouldn’t party constitutions mean something?
Radich might be blessed enough to find a way through the middle. There is nothing stopping him finding that the process to expel Kapa-Kingi was in fact improper – but when it comes to the “remedy” stopping short of forcing her reinstatement to the party. (This would be easier if he decided it narrowly on technical grounds, rather than on the wider idea of fairness). It would be far from the first time a Judge had come down on one side of an argument without quite giving them everything they ask for.
This would have the elegant result of restoring some mana to Kapa-Kingi while not forcing the judiciary too far into the messy world of politics. It would let both sides claim they had won. Politics is a game of compromise, and sometimes leaving both sides unsatisfied is the only way through.