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| To Have And To Hold: And now, as if the malevolent spirit of the times has not destabilised our world enough, New Zealanders’ adherence to the values and processes of democracy is being put to the test. Once again, the dividing line is horizontal, not vertical, with the “decolonising” project of Māori nationalism sundering the supporters of democracy from the partisans of ethnic exceptionalism. |
TO BE POLITICAL in the fourth quarter of 2023 is not easy. Yes, New Zealand has just passed through a general election, but the outcome of that contest was signalled well in advance by the polls. That the government lost came as no surprise, even if the vehemence of the electorate’s judgement came as a shock to many of the defeated party’s supporters. But, it wasn’t Labour’s thrashing, and the victory of the Right, that made politics so hard. The explanation for the souring of political discourse here, and around the world, may be traced to Southern Israel, Hamas’s hideous rampage of 7 October, and the furious reaction of the Israeli state.
These events have hacked a bloody line through religious faiths, political movements, parties, families and friendships. Where people stand in relation to that dividing line is determined by many factors. Their understanding of history. Their perception of what politics should, and should not, permit. The reach of their hate. The strength of their love. The persuasiveness of their fear.
Significantly, the line runs horizontally, not vertically. Where one stands on the Israel-Hamas War is not a straightforward matter of Left versus Right. On both sides of the classical divide, friends and comrades draw away from each other: blue and white above the line; red, white, green and black below.
Discussing the times and the morals with an old comrade, just a few days ago, we reflected on the fast decreasing utility of the terms “Right” and “Left”. He recalled the ease with which, as much younger men, we were able to sort the issues of the day into neat ideological piles; separate the protagonists from the antagonists; and know a kind of ontological peace. Now, he told me, the only political idea with which he still identifies unequivocally is Democracy. In the past, he proudly proclaimed himself a socialist. Today, he would own to being a “radical democrat” – nothing more.
And now, as if the malevolent spirit of the times has not destabilised our world enough, New Zealanders’ adherence to the values and processes of democracy is being put to the test. Once again, the dividing line is horizontal, not vertical, with the “decolonising” project of Māori nationalism sundering the supporters of democracy from the partisans of ethnic exceptionalism. Like Palestine, the meaning, purpose, and future of Te Tiriti O Waitangi has become an issue over which an amiable ‘agreement to differ’ is no longer possible.
The day that was always going to dawn has arrived. The day when the unmandated revision of the meaning, purpose and scope of the Treaty of Waitangi runs into the numerical majority of New Zealanders who, according to the pollsters, have run out of patience with the “Treatyists” insistence that ‘Non-Māori’ have an open-ended obligation to acknowledge and fulfil what are now their unabashedly revolutionary constitutional claims. This loss of patience has taken the form of the Act Party’s democratic counter-revision of the Treaty: a political formula it seeks to ratify with a referendum involving – and binding – the whole adult population of New Zealand.
The political leadership of Maoridom, and their Pakeha supporters, have been quick to declare their opposition to any resolution of Treaty differences by way of counting votes. The former Minister of Māori Affairs, Willie Jackson, has warned that elements within the Māori world are willing to “make war” on any attempt to re-write the Treaty’s meaning. (That the Waitangi Tribunal and the Judiciary have been doing exactly that for the best part of 50 years appears to have slipped the former minister’s mind.)
Considerably less ferociously, the distinguished Treaty historian, Dame Anne Salmond, has also taken up an anti-referendum position. Writing for the Newsroom site, she argues that “the idea of putting the ‘principles of the Treaty’ to a popular vote is unjust and unwise, and should not be entertained by any responsible government ….. a referendum on ‘the principles of the Treaty,’ given its populist appeal to the majority and its inflammatory potential, is not the right (tika) way to conduct this kind of discussion. It would be unjust and divisive, inciting extreme views in all directions and fostering misinformation, anger and ill-will.”
The central difficulty with Dame Anne’s position is that it fails to acknowledge that the manner in which the (re)interpretation of the Treaty has been carried out since the passage of the Waitangi Tribunal legislation in 1975 has not been all that “tika” either. The re-conceptualisation of New Zealand’s democratic system of government was undertaken by institutions and individuals not subject to the judgement of the citizenry. Attempting to re-construct the nation’s constitutional edifice without reference to those obliged to live within it was always a very risky venture.
Dame Anne is not alone in her view that holding a referendum on the Treaty would not be wise. Rather than leave the decision to the electors, the former National Party Defence Minister, and present Law Commission member, Dr Wayne Mapp, argues for a Royal Commission of Inquiry “charged with coming up with an acceptable set of ‘Principles of the Treaty’, that could form the basis of legislative definition of the principles. The term itself is a creature of statute but it has never been statutorily defined. So over the last 36 years the Courts have fulfilled that role, supplemented by the bureaucracy.”
Presumably, Dr Mapp is channelling the wisdom of King Solomon, since nothing less would be required to select a panel of Royal Commissioners acceptable to all the parties involved in the Treaty Debate. Any line-up receiving the thumbs-up from Iwi leaders, Te Pāti Māori and Willie Jackson would, almost certainly, get the thumbs-down from David Seymour and Winston Peters. Which is, precisely, why a referendum is necessary.
Dr Mapp is not convinced. “The reason why I oppose a referendum is that it will be an explicit removal of minority rights. Māori are a minority, mostly contained in the 18%. They will not agree to an ACT imposed definition of the principles of the treaty. I am well connected to Māori views on this matter, primarily through my wife [Denese Henare - C.T.]. I know the level of response and division that such a referendum will cause.”
Once again, the apparent absence of concern at what manner of response and division might ensue when those Mapp describes as “conservative senior politicians” are successful in persuading Christopher Luxon to rule out a referendum. Clearly, the levying of war against the Crown is something only Māori have the wit to threaten.
And, therein, lies the conundrum Luxon will have to face. If he bows to Māori threats to “make war” on his coalition government by scotching Act’s referendum proposal, then what’s next? What does he suppose will be the lesson drawn by those Māori determined to persist with co-governance, with Three Waters, with the Māori Health Authority?
“The last thing National needs over the next 3 years is an intemperate ‘debate’ over the principles of the Treaty.” Opines Dr Mapp. “There is a smarter approach to this issue.” So the Crown has insisted, ever since the 1980s, when it became frightened of what Māori might do if it dared to say “No”. But, it was those “smarter” approaches, driven by fear, that prompted the decisions that have led us, concession by concession, one legal judgement inspiring and empowering the next, to this present position. Thus we find ourselves located, dangerously, between a rock and a hard place.
But, being political has never been easy – not even when one takes the easy way out. The moment always arrives when a choice has to be made. Democracy? Or Ethnic Exceptionalism? And what determines the choice? That, too, does not change:
Our understanding of history. Our perception of what politics should, and should not, permit. The reach of our hate. The strength of our love. The persuasiveness of our fear.
This essay was originally posted on the Interest.co.nz website on Monday, 13 November 2023.
26 comments:
...and what minority or vulnerable group do you want the ACT populist to remove from judicial authority next? Unions? Sexual Orientation? Disabled? Women's rights? Bring back capital punishment? Remove judicial authority and interpretation, remove Pacific Affairs, Women's Affairs, Disabled Persons...the Human Rights Commission, Race relations, ombudsman ...
The checks and balances we have in civil society for rights and minorities must be protected. The hypocrisy of removal of jurisprudence on the Treaty is not lost on those that have read articles trying to take a constitutional high ground.
The interpretation of the Crown obligations under the Treaty is a judicial function in our government. This allows the Judges to draw from jurisprudence in NZ law, overseas law and international treaties. To limit this and instruct the judiciary that they are limited in the rule of law in regard to a bilateral agreement and minority rights, is to give away any pretense of a nation based on law.
I was thinking that this would make a dramatic tv series with heart and tragedy and great watching. We could really psych up the watchers and make good moolah and a long runner from it. It would be better than The Truman Show - people could watch the deterioration of the country and bet on will the people be able to win some points. Mix in some John Le Carre' poignancy and you have a winner bigger than Xena. Mix in some exotic scenes and good looking people. Money, money - turn it all into opportunity - we can go out with a bang perhaps.
Think Dylan Thomas line - 'Do not go gentle into that good night'.
This is an issue of similar complexity to whether Britain should be in the EU or not: which is probably why a referendum is too simplistic. A Kiwi Brexit -- equally divisive, equally disastrous ...
A few more points -
"unmandated revision of the meaning, purpose and scope of the Treaty of Waitangi"
What rubbish. The courts are mandated to interpret law and bilateral agreements. That is the very nature of the courts and judicial authority. Are you seriously suggesting the judiciary are not mandated in the delivery of the law? The courts have acted within the mandate of democratic and civil society. I am unaware of any significant challenge to the judicial interpretation that would be upheld in any other jurisprudence. That you do not agree with the independent judiciary is that you fail in a legal argument and now seek to over-turn the independent judiciary.
I emphasize that the Treaty of Waitangi is a bilateral agreement. The Government and courts have looked at principles within that agreement as measures to implement the Crown obligation. Are you seriously suggesting that the jurisprudence of those obligations changes because a number of people wish indigenous and minority rights to be nullified? The rights exist within the Treaty. The judiciary are very much mandated to give substance to the law. Who else has the mandate to interpret the law other than the judiciary? The mob?
We should take offence at these ridiculous attacks on the independent judiciary for being both independent and judicial. There have been no decisions the New Zealand Courts have made that would be overturned by any international body or court. Indeed, the NZ judicial system is seen as a world leader in indigenous law.
We have an integrated system under the Tribunal that acts as truth and reconciliation and an advisory body to the government which allows legal frameworks to acknowledge historians and those with traditional knowledge. Those that decry the quality of the Tribunal simply lack the expertise brought to that body. Similarly, the NZ Courts have an ability to weigh our obligations, our jurisprudence and our international commitments to make decisions as to the implementation of the Crown Treaty signatory to a range of issues.
Layperson disagreement with the independence of the courts is nothing new. I get very tired of those whose view is not up held by the courts crying 'divisive' or 'unmandated' or illegitimate. The truth is the legal counter-arguments have failed. When we undermine the legitimate mandate of our independent judiciary because of prejudice against the rights of an indigenous minority, we have surrendered the right to call ourselves a civil society.
I haven’t been a Law Commissioner since July 2017. Such a role would have precluded me taking a position on such an issue.
Shane Jones, who has deep knowledge of the Treaty/Te Tiriti, has properly identified that both language versions are equally valid. Too many legal decisions have ignored that.
Somehow Parliament needs to set out, at least to some extent, what the “principles of the Treaty” are. Simply removing the term from legislation is not a durable solution, it would last only as long as the life of the new government.
Perhaps I am seeking the wisdom of Solomon in such a fraught area, which might indicate a minimalist approach will be necessary.
I will discuss this in a fuller post in in a couple of days when I have access to a computer as opposed to my phone!
It now looks like NZF and ACT have found significant common ground in their approach to "The Principles" issue. Luxon will find it impossible to weasel out of this I suspect.
"Senior New Zealand First MP Shane Jones made supportive remarks about Act leader David Seymour’s approach to the issue of the Treaty of Waitangi this morning, saying there would be a “reset” in Māori policy under the new Government.
Seymour has been pushing for Act’s policy of a referendum that redefines the Treaty principles in a far narrower way than they have been defined in recent history."
"Jones, speaking to Radio Waatea, said he can “totally understand why David Seymour wants to tidy this area up”.
Jones’ complaint is that the courts and the Waitangi Tribunal have liberally interpreted the principles of the Treaty of Waitangi and have gone beyond what was intended by Parliament when it began including references to Treaty principles in legislation decades ago."
https://www.nzherald.co.nz/nz/politics/coalition-talks-shane-jones-says-there-will-be-waitangi-reset-as-nz-first-warms-up-to-acts-treaty-ideas/MDQBD34O6VAOTOZQHI73Z5HU5I/
"All human beings are born free and equal in dignity and rights". So proclaims the UN Universal Declaration of Human Rights, which was crafted in the wake of the Holocaust. It is incorporated into New Zealand law under the Bill of Rights Act, which the new government should seek to entrench. Democracy recognizes the innate worth and value of every human being, There is no room for exceptions. Those who choose to go down the rabbit-hole of "ethnic exceptionalism" may find themselves in the foulest company. These matters need to be addressed in the here and now, we cannot continue pretending they do not exist.
IMO a partnership with the Crown doesn't mean co governance no how much some Maori want it to mean that. That's the problem. This last Labour Government thought it had a mandate to initiate co governance and found out that it didn't. National will work in partnership with Maori in some areas but certainly not with a parallel system with possible self determination. For me that can only happen if we break formal ties with Britain and the King. Maori can't win a referendum imo, unless they re negotiate the Treaty with government themselves and get the outcome they want, nothing will change for them . IMO if we break with the Crown all bets are off which would leave Maori free to re negotiate in good faith if that's what they want. Luxon will kick this can down the road and hope his governments partnership with Maori has a good enough result to keep them happy. If Act force a referendum as part of a deal I believe there could well be unrest and civil disobedience.
'frightened of what Māori might do if it dared to say “No”.' Yet Helen showed it is not only possible to say 'no', but to not cause the feared backlash. There is much I disagreed with, but she showed true leadership on the foreshore problem.
Since then, we have had leaders who care nothing about the country, just power. Both John and Jacinda pouring fuel on the fire, then bailing when things got tough.
Does Chris L have the backbone required to deal with this problem, I doubt it. Like Mapp, it is all about kicking the can down the road, delaying enough to move on and leave an ever bigger mess for the next generation to deal with.
We are not the USA, with its deference to a written Constitution that can only be slowly changed after much argument and voting, with a third arm of government specifically tasked with interpreting it in light of legal cases presented.
Like it or not - and I don't - our system is based upon Parliamentary Supremacy, which means that the people, via their elected representatives get to tell the Courts what to do on matters of law, just as they tell the rest of us.
As far as this situation is concerned the issue is not with the TOW, a simple document not much better than your average land purchase contract, but with Courts and Judges who decided that their legal expertise and large brains meant they could create detailed "principles" out of it and then shove those into every other aspect of law. That this happened over decades is simply due to the historic and often esoteric matters of settling TOW breaches, with little more than transfers of large sums of government money and government-owned lands. Whereas the further it goes the more it intrudes into our everyday lives, such that little people find themselves at the whim of Iwi leaders and lawyers on local bodies.
It is the arrogance of those Iwi leaders and lawyers, and that class of usually Pakeha judges, who craft the detail of principles and simply tell little people with no legal expertise to suck it up and accept whatever is handed down from on high, that has led to this situation, as such things always do in a democracy.
We The People will now speak on this - and the high and mighty will just have to accept the decision, scream as they might about International Law, Treaties and so forth.
The Barron misses the point when he says that the issue is one of "attacks on the independent judiciary" and "the legal counter-arguments have failed". The judiciary has properly discharged its duties. The problem is that Parliament dumped the phrase "principles of the Treaty" into statute without defining what it meant. When a case was brought alleging that the Crown had acted inconsistently with the "principles of the Treaty", the Court had no choice but to decide what that meant in order to adjudicate the case. There can be no counter-argument, legal or otherwise, when a previously undefined term is given a definition - one can only accept or reject the definition.
There are people who disagree with the interpretation that the Courts have placed on the phrase, but to say that is not to attack the independent judiciary. Parliament frequently amends the law when the Courts interpret the law in a way that is politically unacceptable, and does so without intending any disrespect to the judges. If the law does not actually mean what we thought it meant, we should correct or clarify it.
Act is not attacking the judiciary by proposing that the principles should finally be discussed in a democratic process, leading eventually to a referendum to codify them. If there is an attack, it is on Parliament, which failed in its duty by writing words into a statute without first thinking about what they meant. And what the Courts are interpreting is not the Treaty signed in 1840, but the phrase "principles of the Treaty" in statutes written quite recently by Parliament.
Many people agree with the Courts' interpretation of the phrase, but an increasing number are becoming increasingly unhappy with the implications. And deciding what the law should be is an essentially political matter. The politics look likely to be nasty unless somebody can come up with an acceptable fudge; but even a widely acceptable fudge will need to be codified in some form.
What NZ has is an unwritten constitution which is based on precedent and jurisprudence. Parliament is the legislator and the judiciary is the interpreter and arbiter of the law. We are based on the Westminster system, and like the British Parliament has found out yesterday regarding Rwanda as a refugee dumping ground, the judiciary must take into account international commitments and rights in common law and natural rights.
In regard to the Treaty, it is a document that binds the signatories. There has ben a lot of constitutional illiteracy on this issue. The Principles of the Treaty was extrapolated from the Treaty, originally by the Lange government, as a guide to the implementation of the Crown obligations under the Treaty. No Maori ancestor signed the Principles of the Treaty, but the text of Te Tiriti. The Principles are the government and judicial guidelines as to what can be drawn from the Treaty. It is a nonsense to suggest that the interpretation can be legislated out. It is the courts jurisprudence as to the actual Treaty.
If anyone does not think that the law has been adjudicated correctly, they have the right to challenge. The fact that the courts have been consistent in the interpretation shows that no such challenge has been successful. There has been no credible accusation that the courts have been anything but independent and correct in their legal rulings.
All you seek to do is to undermine the rule of law and the independence of the judiciary. This is not the something any modern democratic country should entertain.
Just to follow up on the British Courts overturning the British Government's Rwandan refugee policy, I have just heard the lawyer for the refugees state that the decision is a reminder that 'no-one is above the law'. This includes Westminster style governments. Our system is not based on 'Parliamentary Supremacy', but the supremacy of the legal process and judicial authority, and has been since at least 1215 - thanks to the Barons.
Thanks Tom,
there's an almost mystical belief in the ultimate authority of the judiciary by some. An expedient delusion? That is simply not how we're politically constituted.
“Because by changing words they can change laws—without having to make any legislative amendments, which takes time and is a convoluted, public process. They can manipulate rules and, in turn, society itself, by changing the semantic meaning of words and how they are interpreted by those in power. They can also constantly change the rules of engagement, which keeps people on the back foot.” —from An Immigrant’s Love Letter to the West, by Konstantin Kisin
TB: "the British Courts overturning the British Government's Rwandan refugee policy"
Yeah but the British government are simply going to do it anyway. Checkmate!
"Rishi Sunak has announced an “emergency” law to overcome the Supreme Court’s unanimous ruling that his plan to deport asylum seekers to Rwanda was unlawful.
At a Downing Street press conference, the Prime Minister vowed to strike a new treaty with Rwanda and pass “extraordinary” legislation declaring the country was “safe” for refugees.
Downing Street argued the new treaty and law would address the Supreme Court’s concerns by making clear no asylum seeker deported to Rwanda would then be sent to their home country."
It's called the "Supreme" Court but it is bound by the laws handed down by parliament.
https://www.telegraph.co.uk/politics/2023/11/15/rishi-sunak-rwanda-ruling-emergency-law/
I don't think it is me missing any point. The Principle have no intrinsic value outside being a guideline for implementation of the Crown duties under the Treaty. The Courts are interpreting the Treaty obligations under the law, nationally or internationally, the Principles do not operate independent of this but as a tool within legal analysis.
What ACT proposes is to limit the Courts in their adjudication of Treaty matters. That is, to use Parliament to restrict judicial independence. As the Treaty is a bilateral agreement, one party seeking to change unilaterally will cause legal and social chaos and international challenges.
This is about the far right disruption of civil society. We have seen it in American politics, and we have not heeded the warnings.
... there's an almost mystical belief in the ultimate authority of the judiciary by some.
Haha. Not really. Oh I did hear that from the US Left about SCOTUS through the 1980's, and reading back at least three decades before then as Left wing issues on sex, drugs, guns and such won in SCOTUS.
But the moment they started losing, on things like gun laws and now with abortion decisions being returned to the States, it's hell-hath-no-fury time against SCOTUS.
I guarantee you that if our courts started defining TOW principles in ways unfriendly to Iwi tribal leaders and Lefties they'd dump their respect for "the supremacy of the legal process and judicial authority" in a heartbeat and start pushing laws defining the principles of the TOW through Parliament as fast as they could.
Just as an aside and yet a classic example of this, I see a sly reference there to Magna Carta when most Lefties sniffily dismiss it as a crude simplicity in discussions of constitutions written or unwritten. In any case it wasn't about courts or judicial authority at all but merely a rule that the King would have to now ask the Barons for things like money rather than just demanding it as of right, plus a small number of other restrictions on what he could without asking them. It eventually led to Parliament as a break on the King - not the courts.
A significant breakthrough it's true but in fact you could go back fifty years or so to King Henry II who established permanent, professional courts sitting at Westminster or touring the counties, acting reliably in his name. It was he who created a situation where law became "Listen to what my judges have to say." and by 1180, those judges could consult England's first legal textbook. However, they didn't overrule the King, even with Magna Carta, and they certainly didn't override Parliament when that turned up.
The idea that the Courts can do so is actually a very American thing but British Lefties love it at the moment because they love having small groups of people controlling the masses, and they especially love that situation when you have an unwritten constitution and a set of undefined "principles" that they get to define themselves.
I call it the Okhrana-Cheka rule.
I see this as a great opportunity for our country to better understand itself - providing the issue is well managed by cool heads. We cannot continue down this track of elitist dictates from the judiciary, a tiny minority of activists who threaten to 'throw their toys out' if they don't get their way, and a professional managerial class who seemingly view their job as representing those activists and not the rest of us. I have much more faith in the common man/woman, the great unwashed, to make a reasonable voting assessment, inclusive of minority considerations. To argue against this is essentially to say that 85% of us have no agency in a future vision for our country. Let us not be so worried about majority rule because minority rule is so much worse,
Thanks Tom, on point!
TB: "The Principle have no intrinsic value outside being a guideline".
So what's the problem?
That "the people" should set some limiting principles to the implementation of the court's "guidelines"? That a reassertion of principles, such as that of equality (as set out in the UDHR) should take primacy?
The threat that the defining of such limits and principles by public referendum and/or by our elected representatives "will cause legal and social chaos and international challenges" should be seen for what it is. A sign that we are well down the road to tyranny, a tyranny by the minority.
David, fools rush in...
The British governments Rwanda plan was ruled unlawful by the British Supreme Court
You comment- "Yeah but the British government are simply going to do it anyway. Checkmate!"
Except the aren't. The have commented their disagreement with the ruling, but are seeking to use Parliament to overrule. The Sunak statement below has been well and truly walked back. The idea that on the basis of act the British Court has ruled Rwanda is not safe for refugees, the British Parliament can simply legislate an alternative fact, that Rwanda is safe has been decried by legal experts, such as Lord Sumption as "constitutionally extraordinary" and legislation would be “profoundly discreditable”.
"After the ruling, Sunak vowed to agree a new, legally binding treaty with Kigali and said he would pass emergency legislation to deem Rwanda a “safe country”, overriding other assessments.
The announcement has prompted alarm within the legal profession. Lord Jonathan Sumption, a former Supreme Court judge, told the BBC that the idea of asserting a fact in legislation that runs counter to the determination of the court was “profoundly discreditable”.
He said that while parliament sometimes does change the law in response to a judicial decision with which it disagrees, he had “never heard” of an intervention to change a fact “declared by the courts to be correct”.
That “would be constitutionally really quite extraordinary”, he added." - Financial Times
https://www.ft.com/content/f86fd1c1-44ca-459e-93b2-0ce5ae9e068f
Sunak has completely backed off his early statement. The Tories now plan to renegotiate a bilateral agreement with Rwanda, which it believes will take account of the stated concerns of the Court. They will the introduce legislation, which they believes has taken into account the concerns of the Courts. This legislation will undoubtedly be tested in the Courts.
To summarize, the Government is aware it must be compliant with the the rule of law and the supremacy of the Courts. Why would you think it would be any other way. I would say "checkmate!", but where I am from we are humble in a win, and always than our opponents for trying hard.
Just to contextualize and summarize -
The British Parliament cannot just say 'Rwanda is safe' when adjudication of fact by the Courts is that Rwanda is unsafe. The NZ Parliament cannot just say that reasonable consultation on issues that impact Maori is not a requirement consistent with the Treaty, when the Courts have ruled that reasonable consultation on issues that impact Maori is a requirement consistent with the Treaty.
That would be “profoundly discreditable” and “would be constitutionally really quite extraordinary”.
This about the rule of law in civil society.
Grateful for your commitment to quality content. Your post was excellent.
Sorry TB, "Checkmate" was in reference to the UK government's plans, not directed at you.
They have been roundly criticised, of course, but they are working at alternatives; it's not over by any means.
We face, or will face, similar issues here: the court's and supra national authority's frustration of representative government, even when directly against the national interest and wide general support. Is The Treaty really a living instrument and subject to constant re-interpretation? Even when many of those re-interpretations are at odds with other rights commitments, the NZBOR and UDHR for example. Is it, or should it be, the job of the courts or of parliament to balance those inevitable conflicts? Interesting times.
"Last week, no less a figure than the former Supreme Court Justice, Lord Sumption, said that he believes the time has come for the UK to leave the ECHR, saying: “I’ve come rather reluctantly and rather slowly to that conclusion because I hoped for a number of years that the Strasbourg court would become more sensitive to the implications of its decisions to impact on democratic societies like ours. There is no sign of that happening and so reluctantly I think we should leave.”
The seeds of the problem were sown in the convention’s inception. Even when it was first debated, there were many who had their doubts. Clement Attlee’s lord chancellor, William Jowitt, told colleagues in a Cabinet memorandum: “I suppose it is inevitable that for political reasons… we must accept this draft convention. At the same time, I feel bound to state that from the point of view of administration of law, I regard this necessity as an unqualified misfortune.”
Perhaps the most problematic aspect of the convention is that it is deemed a “living instrument” by the Strasbourg court, capable of constant evolution. It is this that has led to the concept of human rights expanding beyond all recognition from the world of 1945. The victorious powers in Europe wanted to forestall a repeat of the horrors of Nazism. Churchill’s generation would never have imagined that human rights law could be so extended as to render us unable to police our own borders."
https://www.telegraph.co.uk/news/2023/09/16/sunak-may-have-no-option-but-to-leave-the-echr/
Part One.
Thanks again David. The European Court of Human Rights has been absolutely vital to the shaping of the global view of rights post-War II and also post-colonialism. This particular British government has a fetish against anything with Europe in its name, and I hope the recycled Lord Cameron of Chipping Norton realizes the value of the ECHR. Of course the decision of the British Supreme Court was not limited to the ECHR and the UN convention, it was over-turned on grounds of British common law.
I think we both should settle for stalemate. Sunak is renegotiating with Rwanda as to the on sending of refugees to have cover of a veneer of compliance with the courts, while trying to make this new legislation unable to be challenged to the British Courts. It seems completely ignoring the international law. Outside of war-time, this is extraordinary and an abuse of Parliament. It may not get past the Lords if that is the final form.
There have ben limited cases in NZ when the Government has suspended what we would see as 'the rule of law'. I will leave the two world wars out as wartime is an emergency that will put restrictions on travel and communications, but I will draw attention to the NZ Croatian community that were deemed Austrians and forced into prison labour, and some Samoans of German heritage interned in both Wars.
The first real example I will use is The West Coast Peace Preservation Act of 1882, which should be seen in accordance with the earlier Māori Prisoners Act of 1880 and Māori Prisoner Trials Acts. Most rights accorded NZ citizens were suspended for Maori and arrest without warrant to Maori allowed. This was primarily about Parihaka. This was justified because the settler government saw the situation as an emergency (it was peaceful protest) and a hegemony existed between settler society, the Parliament and the Courts. It was a shameful episode in NZ political and legal history.
The second example is the 1951 lockout. Most readers of Bowalley Road are well versed in the suspension of legal rights and that legal abuse was directed at a specific group of New Zealanders, but was expanded to any citizen assisting those locked out and their families. Once again, the Government had called an emergency and suspended various rights of the courts and to the courts. I consider this the closest parallel to the ACT plan for the Principles of the Treaty.
Both the above cases were declared emergencies by the Government of the day, as were wartime examples. It is only in extraordinary circumstances Parliament suspend legal rights and the right to have your rights adjudicated.
I wish now to touch on the most recent emergency. The Public Health Emergency of Covid19. I will not revisit this, but some normally expected rights were suspended and justified as something proportionate to the emergency. We note that the rights discussed were being reviewed by the Courts at the time and subsequently in regard to proportionality. Again, this is deliberated in weighing the right of the government to suspend individual right for the greater good of collective safety within an emergency.
Finally, we have Muldoon. The 1982 Citizenship (Western Samoa) Act removed the citizenship of tens of thousands of Samoans deemed NZ Citizens by the Privy Council. A shameful piece of Parliamentary abuse where the Government simply steamrolled the highest court of the time. This was unusual, but had the complicity of the Leader of the Opposition and the cooperation (although clearly under duress) of the government of Western Samoa. It should have been hoped that this would be the last of racist colonial Parliamentary abuse of the law and the courts.
Part two
However, the ACT proposal revisits that racial colonialism. It is saying we cannot have cooperation, but that Maori are subjected to power imposition and to less legal rights to the Courts than others. I have explained ad nauseum above as to the legal suspension. What I will highlight here is that there are those that have for their entire lives raged against the outrage of Holland '51 and the weaponization of Parliament and the suspension of rights workers and families should have had, and the access to the protection of law and court denied them. This was extraordinary measures within a declared emergency declaration. Over seven decades on, we should be ashamed that this was allowed in our nation. Never more.
Yet, some that hold that line, now get giddy on the idea of the independence of the courts and the right to jurisprudence being set aside to limit the rights of Maori to process developed through the courts. In this, their own suspension of the outrage forged after '51 is because of other views they have. Most noticeably, that we remain a colonial enterprise and that we cannot have independence in courts if justice blind and with scales, is no compliant to our prejudice. The late 19th Century hegemony between settler, state and court no longer can be counted on, so legislate that check and balances of justice out of the equation.
Given the history of the suspension of jurisprudence, the obvious question is where is the emergency that may be used to justify extraordinary constitutional abuse? Again, there are those that hold up our constitutional framework as a democracy with judicial oversite, no trying to make the government contempt for the rule of law, or rejection that no-one is above the law, should become part of our everyday legislative framework. If so, we have crossed a line with many of our previously progressive voices being complicate, and are so because of a belief in colonial superiority and might.
This will be my last comment of the tread.
Thanks TB, you've clearly put a lot of work and thought into this.
It still doesn't resolve the issues of competing rights - or "that human rights law could be so extended as to render us unable to police our own borders" for instance.
Or the infinite extensions that enabled radio waves to be considered a Maori Taonga for instance. Yes really, why not go for the entire electromagnetic spectrum as well; microwaves to visible light to gamma rays?
How about no.
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