Not Debating The Constitution

The Sound of One hand Clapping: The taxpayer funded "Constitutional Conversation" has so far demonstrated little inclination to facilitate a genuine debate on the Treaty's already entrenched place in the legal, administrative and political life of New Zealand. This unwillingness to either recognise or supply a visible platform for the nay-sayers betrays the "Conversation's" essential artificiality. A manufactured consensus is no substitute for a bloody good argument.

 

I DON’T GET ANGRY very often. I’ve been around too long, seen history repeat itself too many times, for all that malarkey. Just occasionally, however, I stumble across something that truly infuriates me.

 

Like discussions billed as debates where everybody is actually on the same side.

 

No, I’m not talking about TV3’s “The Vote”. What’s got my dander up is a four-part series being hosted by the NZ Centre for Public Law (NZCPL) entitled “Debating the Constitution”. All four encounters to be broadcast subsequently on Radio NZ National.

 

And, yes, the series is indeed a response to the Constitutional Review which emerged from the horse-trading between the National and Maori parties following the 2008 General Election.

 

The same review that has been the occasion for more than a little teeth-gnashing among those Pakeha who have declared themselves perfectly happy with New Zealand’s present constitutional arrangements, thank you very much, and who have voiced deep suspicions of both the motives behind its creation and the outcomes intended by its protagonists.

 

Now, you might be thinking: Well there’s the opportunity for a genuine, rip-snorting debate! And I’d be the first to agree. There are a host of noisy individuals who would’ve leapt at the opportunity to voice their doubts and suspicions concerning the whole Constitutional Review initiative.

 

And that’s what has got me all hot under the collar.

 

I’ve examined the personnel invited to participate in this exercise by the NZCPL and can I find any of the names associated with the political movement that has sprung up to oppose the Constitutional Review?

 

No, I can’t.

 

And it’s not as though it would have been at all that difficult for the NZCPL to locate these folk. All it needed to do was send out invitations to the membership of the defiantly christened “Independent Constitutional Review Panel” – a ready-made Negative Team comprising Professors Martin Devlin and James Allan; Associate Professor, Elizabeth Rata; Law Lecturer, David Round; journalist and author, Mike Butler; and the former Act MP, Muriel Newman.

 

Well, I looked through the list of “Debating the Constitution” participants and not even one member of the Independent Constitutional Review Panel was included.

 

The names I did see surprised me not at all. Before my eyes was a veritable roll-call of the good and the great; the wise and the just; the righteously indigenous and the guilty descendants of the Maori people’s wicked colonial oppressors.

 

Here’s a sneak peek at just some of the NZCPL’s line-up: Dame Claudia Orange, Sir Geoffrey and Dr Matthew Palmer, Moana Jackson, Dr Maria Bargh, Professors Margaret Wilson, Elizabeth McLeay and Andrew Geddis, Jim Bolger and Colin James.

 

Now, don’t get me wrong, every one of these illustrious individuals is capable of contributing mightily to a polite “discussion” of our constitutional arrangements. More than a few of them could also say much that was useful about its origins and political ramifications. But, seriously, do any of them strike you as people likely to hoe into the Review with the passion of its self-identified opponents?

 

The NZCPL’s list of speakers is not going to generate a debate on this important topic. No, these folk are going to deliver an academic seminar on the exercise to an audience which will almost certainly be comprised of like and equally lofty minds.

 

It was only after my father was posted to Wellington in 1969 that I encountered the delicious word “twee”. From the moment I heard it used in a sentence I have cherished it. No other word in the English language captures the mixture of exclusivity and effeteness that twee so wonderfully expresses.

 

And twee is exactly the right word to describe this series of debates-that-aren’t-debates.

 

What could have been a down-and-dirty verbal slug-fest; a chance for these grand personages to endure a rare encounter with New Zealanders who most emphatically do not share their “sound” views on the Treaty of Waitangi, bi-culturalism and New Zealand history; an opportunity to squeeze all the poisons inflaming the open wound that is New Zealand race relations into public view – has been missed.

 

And that not only makes me angry, it also makes me sad.

 

As a people, we used to be more open and courageous than this. When Jack was a good as any snooty professor, and a debate was still a bloody good argument.

 

This essay was originally published in The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 5 April 2013.

Disappointing - And Then Some!

Four Months Work: The US Constitution was the work of four frenetic months and some of the sharpest minds the world has ever produced. What were the chances that a group of fifty New Zealand university students could do something similar in just two days?

 

DISAPPOINTING – and then some. That was my reaction to the draft constitution cobbled together recently by fifty young New Zealand university students. Brought together in Wellington over the 28-29 August by a think-tank called the McGuinness Institute (which is voluntarily assisting the work of the Government’s little-known Constitutional Advisory Panel) and working under the impressive on-line rubric of “EmpowerNZ”, these twenty-somethings were asked to produce in two days what the USA’s founding fathers had strained to deliver in four months.

A big ask, you might object. Surely, given the time-frame, disappointment was inevitable? Maybe. But these young people were not without some pretty impressive intellectual and technical support. Helping them out was Professor Philip Joseph, a significant contributor to the academic literature on New Zealand’s constitutional arrangements. Also present was the doyenne of Treaty historians, Dame Claudia Orange. Mr Dean Knight was there, too, along with a team of facilitators from the VUW Law School. The students weren’t acting alone.

 

So, what did they give us, these fifty constitutional craftspersons? Sadly, the document that emerged from two days of frenetic work-shopping was, conceptually, a dog’s breakfast. The final draft possessed scant evidence of either legal logic, historical understanding or literary skill. Strictly-speaking, it wasn’t even a constitution. If the generally accepted meaning of the term is a document enshrining the supreme law of a nation; a template of rights and responsibilities against which all other laws and proposed laws may be tested, and if found wanting, struck down or set aside, then their draft constitution was anything but.

 

Long on bicultural psycho-babble, but woefully short on the clarity of vision and elegance of design that constitutional architects have, historically, sought to provide, the draft contained little more than a confused reiteration of the political and electoral conventions New Zealanders have spent the best part of 170 years defining and refining.

 

The central, and by far the most important of these conventions, is the convention which declares Parliament supreme: the convention which prevents any other locus of power within the state – most particularly the Judiciary – from over-ruling the legislative will of the people’s elected representatives “in Parliament assembled”. It is this, the convention of parliamentary supremacy, which reduces any exercise in constitution-drafting to little more than an enumeration of legal and political good intentions.

 

It was the fifty young students’ failure to boldly and proudly affirm this, New Zealand’s existing constitution, which most disappointed me. How I wish they had looked around the Legislative Council Chamber, analysed the political and economic forces responsible for bringing them together, and then brazenly rejected the carefully constructed agenda dictating their every move.

 

If only they had declined to be pawns in the game being played by the Constitutional Advisory Panel – that gangrel offspring of the National and Maori Party’s 2008 Confidence & Supply Agreement. If only they had refused to play the role of lab rats in the Panel’s quixotic quest to incorporate the Treaty of Waitangi in a new, bi-cultural, binding (and inevitably judicially-defined) New Zealand constitution.

 

Because that’s what real constitutional architects do: they shake off the constraints imposed by those who set the political agenda – and then proceed to write their own.

 

In fairness, however, I should congratulate the fifty young university students for demonstrating to those who would play fast and loose with our democratic traditions and majoritarian instincts, just how difficult – if not impossible – it will be to impose anything remotely resembling a judicially-defined, bi-cultural constitution upon the New Zealand people.

 

These  young New Zealanders may have gone along with the well-meaning McGuinness Institute’s wildly optimistic constitution-writing exercise, but, miraculously, the confused, cobbled-together and internally contradictory non-constitution they eventually succeeded in drafting does reflect the radically loose, ingeniously dispersed and infinitely adjustable constitutional instruments that make New Zealand work. They declined to be ruled by unelected judges. They neglected to entrench the Treaty of Waitangi. And they simply refused to surrender Parliament’s supremacy.

 

Maybe not so disappointing after all.

 

This essay was originally published in The Dominion Post, The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 14 September 2012.