Those Ain't The Torches Of Liberty, Springfield! But is it even possible to argue for democracy against the will of the people? What if the majority just isn't that keen on liberty and justice for all?
IT’S EVERYWHERE: coming at you, confusingly, from both the Right and the Left. The former express their views emphatically, as fact: “Nobody gives a damn about the GCSB – or Andrea Vance. It’s a media beat-up!” The Liberal-Left convey their scepticism in question form: “Does the public really care about all this state surveillance and freedom of the press stuff? I mean, seriously? If they did, then surely National would be suffering in the polls? And they’re not.”
How should we respond to these responses? How does one argue against the expansion of the state’s surveillance powers, and the violation of a journalist’s privacy, when the reaction of the overwhelming majority of the population is either bland indifference, or (even more alarmingly) active support for the Government’s position?
Is it even possible to argue for democracy against the will of the people?
It’s a question of particular relevance to New Zealanders because, historically-speaking, we have never, as a people, been particularly interested in either recognising or upholding the civil and political rights of minorities. Majoritarianism is the strongest of our political traditions. Indeed, the idea that the shape and purposes of society can only be legitimately determined by a majority of its population has been the driving force behind the evolution of New Zealand’s informal constitution.
It is worth elaborating on this point a little.
Many, if not most, New Zealanders either do not know (or have forgotten) that their country once had two houses of Parliament. There was the House of Representatives, elected by universal suffrage, and the Legislative Council, whose members were appointed for seven years by the Governor-General on the advice of his ministers (i.e. by the government of the day). The “upper” chamber had the power to amend, review and delay legislation sent up to it from the House of Representatives. Its acknowledged purpose was to act as a check upon the majority derived and driven demands of the “lower” house.
The lower house did not care to be “checked”. In 1950, just three years short of its centenary, The Legislative Council was abolished by the First National Government.
Nothing now stands between the House of Representatives (and the governments drawn from its members) and the individual citizen. In New Zealand, a parliamentary majority cannot be gainsaid by anyone or anything. Lacking the “supreme law” of a written constitution, the legislative acts of Parliament cannot be challenged in the courts or struck down as “unconstitutional” by judicial fiat. About the only force capable of staying the hand of a government in possession of a solid parliamentary majority is the force of public opinion – and, even then, there are limits.
New Zealand parliamentarians – along with just about every other legislator in the world – are driven by one great desire: to be re-elected. This renders them particularly sensitive to shifts in public opinion – especially those shifts strong enough to make people change their electoral allegiances.
Think about the “anti-smacking bill”. The passage of this bill was sufficiently resented by Labour’s core voters to cause a significant number of them to either transfer their support to another party, or abstain. Labour’s failure to understand the mood of its supporters thus contributed materially to its 2008 defeat. National, by contrast, was confident that although a majority of its supporters (and, indeed, of all electors) were opposed to the anti-smacking legislation, they were not opposed enough to vote for National’s enemies.
And this is where I believe New Zealand public opinion currently stands in relation to the GCSB Amendment Bill, and the apparent, state-sanctioned, invasion of journalists Andrea Vance’s and Jon Stephenson’s professional and personal privacy.
If directly challenged on these issues, I suspect most Kiwis will come out unequivocally for the protection of their own personal privacy and, rather less enthusiastically, for the freedom of the press. What they remain to be convinced of, however, is that the GCSB Amendment Bill constitutes a serious threat, either to themselves or people like them.
So, a few political activists will have their “metadata” analysed and their e-mails intercepted. So what? It’s probably prudent to keep a watchful eye on such people. And, as for the rights of journalists? Well, for these exploiters of personal grief and political misadventure, the public has only one question: “How does it feel?”
Labour and the Greens have come out swinging on behalf of the public’s right to privacy and the freedom of the press because their MPs know that the people who vote for them care passionately about such things and expect them to take a strong stand in their defence.
National MPs, by contrast, are quietly confident that the Centre-Left’s concerns are minority concerns. Mr Key’s majority support is not about to abandon his government for left-wing activists, or journalists. At least, not any time soon.
This essay was originally published in The Press of Tuesday, 6 August 2013.