The Political Amnesia Of Winston Peters’ Critics

More Sinned Against Than Sinning: Even today, the man they cast as the villain of the piece; the person held responsible for the collapse of the National-NZ First Coalition in 1998; is the man most wronged by the whole sordid event – Winston Peters.

THE MOST CURIOUS FEATURE of the near universal criticism of NZ First’s waka-jumping legislation is its political amnesia. It’s as if New Zealand has never experienced a government held in place by the deliberate perversion of the proportionality upon which the entire MMP electoral system rests. A government conceived in treachery and kept in office by Members of Parliament willing to nullify the Party Votes of the electors who put them there. A government whose blatant betrayal of the new electoral system was quietly elided from the media narrative. A government whose principal victim was cast in the role of prime perpetrator. The Government of Jenny Shipley.

To hear the likes of The Listener and the NZ Herald tell the story, NZ First’s Electoral Integrity Bill represented a deadly thrust at the heart of what it means to be a Member of Parliament. Rather than acknowledge the role of the individual conscience in parliamentary affairs, they argued, the legislation would turn New Zealand’s MPs into mindless automatons; unalterably programmed to toe the party line. The historical fact that New Zealand has been governed by highly disciplined political parties for the past 80 years is simply not acknowledged by the legislation’s critics.

What these curiously ahistorical critics appeared to have in mind vis-à-vis the “right” of parliamentarians to arbitrarily dissolve all moral and contractual obligations to the political party whose endorsement was crucial to their electoral success, is the romantic figure of a lonely and tormented MP torn between loyalty to party and duty to conscience. All of them appeared blissfully unaware that the actual turncoats of New Zealand’s recent political history had, with the honourable exceptions of Winston Peters, Jim Anderton and Tariana Turia, been sitting MPs who had failed to secure re-selection from their party; become embroiled in scandal, like the ill-starred son of Norman Kirk; or, were straightforward political traitors. Hardly shining beacons of ethical responsibility!

Of those exceptions, only Jim Anderton failed to do what the framers of the Electoral Integrity legislation urged any MP unable to accept their party’s policies to do – resign and secure a new mandate. Interestingly, Anderton’s refusal to seek a mandate from the electors of Sydenham, following his bitter repudiation of the Labour Party, was roundly condemned at the time. His famous quip: “I didn’t leave Labour, Labour left me” – so oft repeated by critics of the waka-jumping bill in 2018 – received scant acknowledgement and even less support from the right-wing pundits of 1989.

It is also interesting to note that when both Winston Peters and Tariana Turia resigned their seats and were triumphantly re-elected by their constituents, the news media responded with thinly disguised disdain. The refusal of the parties they had left to field candidates against them, far from being seen as a resounding vindication of their position, was used as a means of belittling both their courage and their success. The electors’ emphatic endorsement of Peters and Turia was given far less weight by the news media than the haughty condescension and vicious criticisms of the victors’ former colleagues.

Which brings us back to the government formed by Jenny Shipley in August 1998.

The crisis was triggered by the National Party’s decision, in contravention of the National-NZ First coalition agreement, to privatise its shareholding in Wellington Airport. When Peters responded by declaring the agreement void he discovered that no fewer than 8 of his 17 MPs had turned their coats and were proposing to remain part of Shipley’s new government.

The commitment of Tau Henare, Tuku Morgan, Rana Waitai, Jack Elder, Ann Batten, Tuariki Delamere, Deborah Morris and Peter McCardle to the voters who had sent them to Parliament, as well as to the party they had solemnly pledged to support, was forgotten. The 8 MPs of the far-right Act Party, which the deposed National Leader, Jim Bolger, had pledged to keep out of government were now crucial to the maintenance of Shipley’s majority – as was the bewildered ex-Alliance defector, Alamein Kopu. Shipley and her turncoat crew were guilty of a constitutional outrage: they had profoundly distorted the proportionality of the Parliament elected in 1996 and thus made possible a government which, had the choices of the electors been respected, could never have been formed.

That the Governor-General of the day, Sir Michael Hardie Boys, acquiesced in this distortion of the people’s will is only marginally less outrageous than the distortion itself. The proper course of action would have been to dissolve Parliament – thereby requiring Shipley and her supporters to secure a new mandate from the voters. Instead, New Zealanders were forced to wait another twelve months before passing judgement on Shipley’s “Turncoat Government”. Unsurprisingly, it was thrown out.

That the critics of NZ First’s waka-jumping legislation have forgotten these events is extremely telling. It betrays their profound diffidence towards the whole democratic process. Twenty years on, they are still unwilling to sheet the blame home where it belongs – with Jenny Shipley and her motley collection of chancers, zealots and defectors. Even today, the man they cast as the villain of the piece; the person held responsible for the collapse of the National-NZ First Coalition in 1998; is the man most wronged by the whole sordid event – Winston Peters.

Far from undermining our parliamentary democracy, the Electoral Integrity legislation, which NZ First insisted form a central part of this new coalition government’s programme, now stands as a solid protection against any repetition of the constitutional outrage of 1998. That blatant attack on MMP which Peters’ perennial critics either cannot, or will not, acknowledge.

This essay was originally posted on The Daily Blog of Friday, 5 October 2018.

A Disgraceful Performance: Why John Key And The Speaker Need A Refresher Course In Democracy.

Extraordinary Accusations: John Key accuses the Labour Opposition of "supporting rapists and murderers". The Speaker's failure to require the Prime Minister to withdraw and apologise sparked a rare walk-out from the Chamber and, later, a Vote of No Confidence in the Speaker. That the Prime Minister may have a majority of New Zealanders backing his cruel denigration of Australian Immigration's detainees matters not one whit. Human rights are not the playthings of majorities: they are inherent and inalienable.

 

THE DAILY BLOG’S EDITOR, Martyn Bradbury, believes New Zealand is better than its present Prime Minister and Government. I hope, desperately, that he’s right. But, ours is a representative democracy, and my great fear is that this John Key-led, National Party-dominated, Government is just that – representative.

 

Were a majority of Kiwi voters shocked by the behaviour of the Prime Minister and the Speaker during Question Time, yesterday? (10/11/15) Or did John Key launch his extraordinary attack on the Opposition parties in the confident knowledge that, far from being shocked and disgusted, the New Zealand public was lined-up right behind him?

 

One has only to listen to the talkback radio stations, or hear the comments from listeners read out on RNZ-National’s Morning Report to know that there is a substantial number (quite possibly a majority) of New Zealanders who view the entire Australian immigration scandal from the Prime Minister’s perspective. How likely is it, really, that a politician as shrewd as Key would accuse the Opposition of “supporting rapists and murderers” if he wasn’t quietly confident that most New Zealanders saw things his way?

 

Fairfax Media’s political editor, Tracy Watkins, thinks it most unlikely: “He [did it] knowing he is on the right side of the argument politically – most people would have no argument with Key’s assessment New Zealand should not bother shedding any tears over the plight of the Kiwi detainees.”

 

Coming at it from a slightly different angle, the NZ Herald’s political editor, Audrey Young, was equally confident in her assessment of yesterday’s events: “The suggestions by some Labour MPs on Twitter that democracy was at stake was over-reaction and nonsense. There were plenty of errors in the high drama at Parliament today but there was nothing undemocratic in what occurred.”

 

The high drama and errors Young refers to relate to the behaviour of the Speaker of the House of Representatives, David Carter, and to the decision of about half the Labour Opposition to walk-out of the parliamentary chamber in protest. Against all precedent, Carter had ruled that the PM was under no obligation to withdraw or apologise for his repeated accusations that the Labour MPs were supporting rapists and murderers. When the furious Labour MPs finally returned to the House they moved a symbolic Vote of No-Confidence in the Speaker. Again, this was a most unusual and disquieting response to the Speaker’s behaviour.

 

The independence of the Speaker – most especially his or her independence from the Executive Branch of Government – is a cornerstone of the Westminster System of representative democracy. The tradition dates at least as far back as the 1640s in England.

 

It was in 1642 that King Charles I, accompanied by a company of soldiers, strode into the House of Commons to arrest five Members of Parliament on charges of High Treason. When asked to point out the five traitors, the Speaker, William Lenthall, replied:

 

“May it please Your Majesty, I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here; and I humbly beg Your Majesty’s pardon that I cannot give any other answer than this to what Your Majesty is pleased to demand of me.”

 

Speaker Lenthall responds to Charles I: "I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here."

 

As our constitution has evolved over the past 300 years, the Executive and Legislative branches of government have, in some respects, become one. The members of the Cabinet are all drawn from the House of Representatives, as is the Chair of Cabinet, the Prime Minister. The contemporary equivalent of King Charles I, the most important political figure in the land, must be a Member of Parliament.

 

This places a very heavy burden on the Speaker’s shoulders. If he or she is to be “Parliament’s Person”: the staunch protector of the legislators’ rights and privileges against the Executive’s natural inclination to make them dance to its tune; then it is vital that there be not the slightest hint of any bias in the Executive’s favour. Most vitally, the Speaker must ensure that the Prime Minister and Cabinet can be held to account for their actions. When questions are put to them by MPs, it is the Speaker’s duty to extract meaningful answers.

 

It is also vital that the Speaker defend the rights of those MPs who form no part of the majority that keeps the Executive in office – the Opposition. Any suggestion that the conduct of the Speaker is regularly failing the test of strict impartiality, and that the Opposition is being thwarted in its duty to hold the Executive to account, is of the most extreme seriousness. If true, then democracy would indeed be at stake. Because a parliament in which the Opposition is prevented from holding the Government to account, is a parliament from which the Executive is free to rule without restraint.

 

It is this absolute obligation on the part of the Speaker – and of our democratic system generally – to protect the rights of the minority against the power of the majority that goes to the heart of the arbitrary incarceration of New Zealand citizens by the Australian state. No matter what these detainees have done, as human-beings they have the right to be treated justly and humanely. That the Prime Minister has a majority of New Zealanders backing his cruel denigration of their characters matters not one whit. Human rights are not the playthings of majorities: they are inherent and inalienable.

 

In and out of Parliament, the protection of the rights of the minority is what allows our democracy to function. It is no over-reaction on the part of an Opposition to call out a Speaker who is failing to provide that protection. And to suggest that, in its absence, our democracy is not threatened, is the most dangerous kind of nonsense.

 

This essay was originally posted on The Daily Blog of Wednesday, 11 November 2015.

What Game Of Thrones Can Teach Us About Magna Carta

Under Duress: In the end, John Plantagenet had nothing but bad options to choose from. Cornered by his barons at Runnymede, about 20 miles west of London, and chivvied by Stephen Langton, the Archbishop of Canterbury, King John affixed his seal to the charter which, its high-flown promises about freedom, justice and the rule of law notwithstanding, was drawn up to ensure that government of the barons, by the barons, for the barons, would endure.

 

“FOR THE WATCH!” With that grim cry, the conspirators of Castle Black struck down their Lord Commander. How fitting that the assassination of the fictional Jon Snow should coincide with the 800th anniversary of a legal document sealed at Runnymede on 15 June 1215. Why fitting? Because the breath-taking brutality and treachery of Game of Thrones offers us a much truer guide to the political realities underpinning Magna Carta (as that legal document is now known) than the pious platitudes offered up by its latter-day celebrants.

 

The power of Game of Thrones, and the likely explanation for its worldwide popularity, is its clear-eyed refusal to pretend that good character and effective policy are somehow inextricable. The very real John Plantagenet, like the fictional Jon Snow, was a man confronted with a multitude of poor options – none of which were likely to significantly improve his position.

 

George R.R. Martin, the author of Game of Thrones, presents Jon Snow to his readers as a man of honour and courage who, in spite (or is it because) of these qualities, is required to make his choices from a set of dwindling military and political options – each one carrying a higher risk of death, either in battle or by assassination. With every decision Jon Snow makes, his personal circumstances grow more perilous, until, eventually, nothing remains to him but fatal choices.

 

Very few historians (if any) would attempt to present John Plantagenet as an honourable man. The historical cliché of “Bad King John” (so unlike his “good” brother, the chivalrous King Richard the Lionheart) does possess a reasonably solid foundation in historical fact. With brutality to match the very worst scenes in Game of Thrones, John ordered the deaths of the young Welsh noblemen sent to his court as hostages to their fathers’ good behaviour. And, to prevent her spreading rumours (which were, almost certainly, true) that he had personally murdered his own nephew, Arthur, John ordered Maud de Braose, along with her eldest son, to be shut up in the dungeon of Corfe Castle and starved to death.

 

John Plantagenet was, clearly, no Jon Snow when it came to matters of good character. He did, however, have much in common with the fictional hero when it came to poor political options. The vast Angevin Empire, which John inherited from his father, King Henry II, and his formidable mother, Eleanor of Aquitaine (Cersei eat your heart out!) was under constant pressure from barons loyal to the French king. To hold onto his family’s territories across the English Channel, men and money were urgently required – and they did not come cheap.

 

If John had refused to defend his inheritance, he would have been in all kinds of trouble. (His enemies already called him John “Lackland”, or, even worse, “Softsword”!) But, in raising the resources required to defend the empire, he was bound to displease his feudal support-base, the barons. Indeed, it was John’s success as an administrator – and tax collector – that incited his barons (especially those who owed him lots of money) to rebel.

 

And these barons were very far from being the lordly defenders of the rights of freeborn Englishmen that the celebrants of Magna Carta like to paint them. On their own lands they wielded the same sort of brutal authority as the murderous Bolton family displays in Game of Thrones. One could even argue that it was the royal encroachments on baronial power represented by John’s administrative innovations (he invented to post of Coroner, the “Crown’s Man”) that made his rebellious barons so determined to roll back their King’s expanding authority.

 

Good man or bad man, John Plantagenet, like Jon Snow, was ultimately left with nothing but bad options to choose from. Cornered by his barons and their “bannermen” at Runnymede, about 20 miles west of London, and chivvied by Stephen Langton, the Archbishop of Canterbury, King John affixed his seal to the charter which, its high-flown promises about freedom, justice and the rule of law notwithstanding, was drawn up to ensure that government of the barons, by the barons, for the barons, would endure.

 

Jon Snow over-ruled his enemies in the Night’s Watch – and paid the price. John Plantagenet bowed to his barons’ assembled swords – and survived. Three months later, at John’s insistence, their long-winded charter was annulled by the Pope.

 

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, 19 Junes 2015.

Nothing Wrong With John Key's History.

Done Deal: The Prime Minister's comments regarding the peaceful settlement of New Zealand have been ridiculed by his detractors, but they were considerably less controversial than the Waitangi Tribunal's assertion that Maori never ceded sovereignty to the British crown. (Image drawn from the TVNZ docudrama About Waitangi: What Really Happened?)

THE PRIME MINISTER, John Key, has been much mocked over the past week for his claim that New Zealand was settled peacefully. Hoots of derision have echoed through the Twittersphere from those who profess to know their New Zealand history a great deal better than the Prime Minister.

 

Are they right? Is Mr Key wrong?

 

It might help to place the Prime Minister’s comments in context. His remarks followed the Waitangi Tribunal finding that the tribal chieftains of the far-North did not cede sovereignty to the British Crown when they signed the Treaty of Waitangi on 6 February 1840.

 

This finding is considerably more controversial than anything the Prime Minister decided to offer by way of commentary. The Auckland-based historian, Paul Moon, has already derided the Tribunal’s historical conclusions, and his intervention is unlikely to be the last.

 

Indeed, it is extremely difficult to understand how the Waitangi Tribunal’s latest finding could be so provocatively definitive. The Tribunal’s enabling legislation allows the Crown to test the evidence presented to it by cross-examining witnesses and by introducing evidence of its own. It may also commission professional historians to assess evidence presented in support of radically revisionist interpretations of New Zealand history.

 

Did the Crown take full advantage of its interrogative powers in this case? Did it seize the opportunity to open up the vital constitutional issues under consideration to wider public scrutiny and debate? Apparently not. The strongly held beliefs of those bringing the claim were accorded a decisive credibility. The settled view of more than 150 years of historical research? Not so much.

 

A crucial element of the settled view is that the Maori chieftains who signed the Treaty, many of whom had enjoyed long and mutually beneficial relationships with the Europeans who had taken up residence in New Zealand since Cook’s exploratory voyages of the late eighteenth century, knew exactly what they were agreeing to at Waitangi on 6 February 1840.

 

Captain William Hobson was guaranteeing them the inviolability of their traditional territories and the safety of their people. In the light of what had befallen the iwi and hapu of Niu Tirani (New Zealand) between 1769 and 1840, the existential value of these guarantees is readily appreciated.

 

The indigenous population of these islands at the time of first European contact is estimated at 100,000. Between 1800 and 1830 as many as 30,000 Maori were killed and/or driven from their traditional lands by enemy iwi and hapu armed with the devastating military technology of the Pakeha. The protection of Queen Victoria (symbolising the world’s most powerful nation) was what they needed. Hobson offered it. The chiefs grabbed it with both hands.

 

So, in the sense that New Zealand was gazetted as a possession of the British Crown by virtue of a treaty of cession, rather than by outright military conquest, the Prime Minister’s assertion that “New Zealand was one of the very few countries in the world that were settled peacefully” is not only historically uncontroversial but also, in general terms, correct.

 

That correctness is bolstered when we compare the wholesale slaughter, land seizure and population displacement that accompanied the so-called “Musket Wars”, with the death-toll of the Land Wars of 1845-1872. Over the course of those three tumultuous decades roughly 2,000 Maori and 2,000 Pakeha fell victim to fatal violence. On the Maori side of the ledger, a significant proportion of those fatalities were inflicted by Maori fighting for the Crown. And, if we divide the total number of fatalities by the 28 years the conflict lasted, then the average fatality rate is 143 deaths per annum – less than the 2013 road toll.

 

Even the relatively large-scale conflict encompassing Taranaki, the Waikato and the Bay of Plenty between 1860 and 1863 was more of a civil war than a war of conquest. The Kingitanga’s brave attempt to re-define the terms of Hobson’s deal, by proposing a two crowns/one flag formula, was deemed to be unacceptable by Governor Grey; antagonistic to the fast-expanding settler interest; and a doomed attempt to wind back the clock by those Maori leaders who knew that, for better or worse, the Pakeha had come to stay.

 

In the smaller flare-ups of the late-1860s and early-1870s, it was these “Loyal Maoris” who played a crucial role in extinguishing the isolated bush-fires of iwi and hapu resistance. That the Waitangi Tribunal masks their participation by subsuming their contribution under the all-encompassing rubric of “The Crown” says it all really.

 

Accordingly, I will not be participating in the condescension and derision of the Twitter handle #johnkeyhistory.

 

Is the history of Maori-Pakeha relations entirely free of violence and injustice? Of course not. There’s blood in the foundations of every state. But, if John Key’s saying there’s a lot less in ours than most, then I, for one, agree.

 

This essay was originally published in The Press of Tuesday, 25 November 2014.

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.

The People's Song

Every Man A King: Richard "King Dick" Seddon, New Zealand's longest serving prime-minister, set in place the notion that the will of the New Zealand people must trump all else. In this, the informal constitution of New Zealand, Parliament has always been the nation's highest court. For most Kiwis the power of the majority is supreme and indivisible: it answers to no one. 

IT’S ONE OF the most extraordinary sounds you’ll ever hear: the sound of the legal profession singing in unison. The Government’s urgent attempts to stuff the Supreme-Court-created hole in Police surveillance powers with legislative Polyfilla has got the legal fraternity on its hind legs, bellowing like a baited bear.

The principle at stake, cries that doyen of be-wigged boffins everywhere, Sir Geoffrey Palmer, is nothing less than “The Rule of Law” itself. Governments which – retrospectively –overturn the judgements of their highest courts, this former law professor and Prime Minister warned the select committee examining the legislation, are in danger of being mistaken for tyrants.

The judicial arm of the state must be capable of restraining the executive arm when it transgresses the boundaries set by the legislative arm – say the experts – or no citizen is safe.

Except that most of these citizens aren’t big fans of the classical liberal notion of the separation of powers. In the eyes of most New Zealanders, the State is ruled by only one body – “Parliament” (by which they mean the House of Representatives). The “executive arm” of the State (Cabinet) and the “judicial arm” (all courts up to and including the Supreme Court) are there to give effect to Parliament’s will.

In any legal arm-wrestling contest, nobody beats the people’s elected representatives. Parliament is New Zealand’s Supreme Court.

Of course, this is not the official view of New Zealand’s constitution, which cleaves loyally to the separation of powers doctrine. But, there is a very big difference in this country between constitutional theory and constitutional practice.

Uniquely, among the inheritor states of the British Empire, New Zealand possesses no written constitution; no entrenched Bill of Rights; no Supreme Court with powers to strike down “unconstitutional” legislation; and no “upper” house to scrutinise and/or delay the legislation of a “lower” house.

Kiwis aren’t very keen on terms like “upper” and “lower” – especially when “lower” is applied to the parliamentary chamber most beholden to the people. Nor are they attracted to the idea that a bunch of unelected lawyers, dressed in antiquated wigs and gowns, should be able to strike down or gainsay the intentions of the men and women chosen by the people to govern the country.

What the overwhelming majority of Kiwis do affirm, however, is the idea that “majority rules”. It’s a disarmingly simple constitutional principle: the person, or persons, in command of a majority of seats in the House of Representatives get to run the country.

Stated bluntly, “majority rules” means that the “executive arm” of the State is not a co-equal, but a sub-set, of the “legislative arm”, and remains effective only for so long as it enjoys the legislature’s confidence.

It’s the same with the judiciary. Being nominated and appointed by agents ultimately dependent on the confidence of the House of Representatives, judges should not consider themselves the co-equals of Members of Parliament  – but their servants.

Parliament’s reaction to the Supreme Court’s decision in Crown & Hamed provides an excellent demonstration of “majority rules” in action.

John Key is Prime Minister because the last general election gave his own (and a sufficient number of like-minded parties) a majority of seats in the House of Representatives. An important part of the mandate National and its allies received from the voters involved taking a hard-line on law and order issues. Mr Key’s interpretation of the Supreme Court’s decision on Police surveillance powers was that it placed intolerable obstacles in the way of his government carrying out the people’s mandate. Accordingly, his Attorney-General introduced legislation effectively overturning the Supreme Court’s decision.

At the time of writing it’s unclear if Mr Key will be able to persuade a majority of the House of Representatives to vote for his legislation. If he fails, then the Supreme Court’s decision will stand.

But, let’s be very clear. It will stand because a majority of the people’s representatives could not be convinced that the Government’s bill accurately reflected its electoral mandate on law enforcement. Indeed, a victory for the “Noes” will indicate that, on the matter of the unrestricted video surveillance of suspects, the people’s representatives are asking both the Courts and the Police to take their fellow citizens’ right to be protected from “unreasonable search and seizure” a great deal more seriously.

Like any good legal counsel, the Supreme Court may then be said to have provided the people’s representatives with sound and useful advice on a matter important to the good governance of the nation, and they will have acted accordingly.

But, if the Government does manage to muster the majority it needs, Parliament will have reached an altogether different conclusion. That, in order to secure the conviction of serious wrong-doers, the powers of the Police must be strengthened.

Either way, the people’s song will have triumphed.

This essay was originally published in The Press of Tuesday, 4 October 2011.

Trick Questions

She'd Swear No Oath To An English King: Constance Markiewicz was the first woman elected to the British Parliament but was never seated because, in line with the nationalist and republican principles of the Sinn Fein Party, she refused to swear allegiance to the monarchy which had oppressed the Irish people since the 12th Century. The New Zealand Speaker's recent refusal to seat Hone Harawira until he swore allegiance to Queen Elizabeth II shows that the feudal traditions of our parliament still have teeth.

IT’S ONE of those trick trivia questions that always catches the pub-quiz whiz-kids off balance.

“Who was the first woman elected to the British House of Commons?”

Quick as a flash, all the amateur historians chime in with “Nancy Astor!” (the American-born Vicountess who famously declared: “Mr Churchill, if you were my husband I’d put poison in your tea.” To which Winston Churchill, even more famously, replied: “Madam, if you were my wife, I’d drink it.”)

The amateur historians would, however, be wrong.

Lady Astor was indeed the first woman to take up a seat in the House of Commons (she won her husband’s old constituency of Plymouth Sutton in a by-election in 1919) but she was not the first woman to win one.

That honour belongs to Constance Markiewicz, the Irish nationalist revolutionary, who won the constituency of Dublin St Patrick’s for the Irish nationalist party, Sinn Féin, in the British General Election of 1918.

That Constance Markiewicz never took her seat in the House of Commons was due entirely to her nationalist and revolutionary republican beliefs. As a champion of Irish independence from Great Britain and a staunch republican, she was not about to swear allegiance to an English king, or a monarchy which had oppressed her people since the 12^th Century.

And therein lies the insurmountable problem – as New Zealanders, witnessing the aborted swearing-in of a member of their own House of Representatives  93 years later, have discovered.

The Oath of Allegiance, like so many of the other feudal relics that still clutter this country’s constitutional arrangements, may seem to be nothing more than a harmless anachronism, but, when challenged, turns out to have a cutting edge as keen as any medieval broadsword.

LIKE IRELAND’S SINN FÉIN (“Ourselves Alone”), the newly-formed Mana Party is a revolutionary nationalist political movement seeking to bring about fundamental social, economic and political change within the framework of a constitutional monarchy.

To get around this central contradiction at the heart of Mana’s political project, it’s leader, Hone Harawira, is required to swear an oath, or make an affirmation, which he has no intention of honouring. Or, to put it more bluntly: before Mr Harawira can take up his parliamentary seat, the Speaker of the House, Dr Lockwood Smith, is requiring him to perjure himself.

The Mana Party leader is committed to establishing a bi-cultural Aotearoan republic, with the Treaty of Waitangi enshrined at the heart of its constitution.

Why, then, should he be required to “solemnly swear” to: “… be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law. So help me God.”

The legal experts, like the Speaker, will argue that “the law is the law”. It’s a fair point, but it is also a profoundly hypocritical objection.

For many years, now, Members of Parliament who have not been able, in good conscience, to swear an oath before God, have been able to make an affirmation instead. Why then, if our legislators are willing to make provision for the tender consciences of atheists, have they not extended the same courtesy to republicans?

We know how swiftly the House of Representatives can act when it wants to (just ask the executives of Warner Bros.) so why doesn’t it allow Mr Harawira to swear to:

“ … [B]e faithful and bear true allegiance to Te Tiriti o Waitangi, that I will be honest and forthright in my efforts to advance the rights of the people of Tai Tokerau, that I will do my utmost to help all Maori people become full empowered citizens of this land and that I will do whatever I can to reduce inequalities in this country, so that all may one day be proud to call Aotearoa home.”

THE SPEAKER OF THE HOUSE, in deciding to stand firm on the Oath of Allegiance, has brought the evolving tradition of MPs swearing or affirming allegiance to Treaty, Nation, Democracy and Queen to an abrupt halt.

This is regrettable. Because, by re-infusing the Oath with all of its ancient, feudatory power, Dr Smith may end up driving the Mana Party to adopt the tactics of Sinn Féin in 1918.

Rather than take up her seat in the King’s parliament, Countess Markiewicz, along with dozens of other Irish MPs elected under Sinn Féin’s banner, unilaterally constituted themselves as the Dáil Éireann – the first parliament of the Irish Republic.

Thus began the Irish War of Independence.

JUST AS POWERFUL CURRENTS of water have carved out the courses of Canterbury’s rivers, powerful currents of history are carving out the future contours of the New Zealand state.

It will indeed be ironic if future pub-quiz whiz-kids identify Dr Lockwood Smith as the man whose neo-colonialist actions sparked the birth of the Bicultural Republic of Aotearoa.

This essay was originally published in The Press of Tuesday, 19 July 2011.

Injured Majesty

Ruler by Divine Right?: The Maori King, Tuheitia, has unilaterally dismissed the Chair of the Tainui Parliament, Tania Martin. The King's advisors argue that Tuheitia's status as paramount chief of his people over-rides the democratic elements of the Iwi's constitution. The English King, Charles I, asserted something similar in 1641 and sparked a civil war.

IT WILL BE an interesting test.

Over-riding the tribe’s constitution, the Maori King, and Paramount Chief of the Tainui Iwi, Tuheitia, has dismissed Tania Martin, the democratically elected Chairwoman of Te Kauhanganui – the Tainui parliament. Her offence? Issuing a report sharply critical of the way the King and Te Arataura – his advisory board – have been managing the tribe’s resources. Her report has been interpreted as a direct thrust against the King’s mana – his authority and prestige. The equivalent in European law is lèse majesté – "injured majesty".

The test can be broken into three questions:

The first is whether or not the Tainui people, acting through their marae representatives, will challenge the King’s actions.

The second is whether or not the King and his advisors will allow themselves to be over-ruled by their own people.

And the third is whether or not the political leaders of Pakeha New Zealand will have anything to say about the political drama unfolding in the Waikato.

They should. Because Tainui’s drama is practically identical to the drama our own ancestors lived through more than 300 years ago. The rights and privileges which Members of Parliament still enjoy, and which we, as free citizens, hold dear, are all directly traceable to the bloody drama known as the English Civil War.

King Charles I found it intolerable that he was fiscally accountable to his own people through their Parliament. Believing that his political authority came directly from God, he refused to accept that his powers could be circumscribed in any way by the will of his subjects. When Parliament refused his demands for money, and declared his closest advisors traitors, the King, with 400 soldiers, tried to arrest the five politicians responsible. Forewarned, the parliamentary leaders escaped. London erupted in fury. Charles and his family fled, first to Oxford, then to Nottingham, where, on August 22nd 1642, he "raised his standard" – effectively declaring war upon his own subjects.

To date, King Tuheitia’s coup has been considerably more successful than King Charles’s. His dismissal and replacement of Te Kauhanganui Chairwoman, Ms Martin, is a fait accompli. It’s as if Charles had succeeded in arresting those five members of the House of Commons – leaving their stunned colleagues to debate their next move under the watchful eyes of the King’s musketeers.

That’s where the Tainui parliamentarians are now. They must either convene Te Kauhanganui in defiance of the King and reconfirm Ms Martin in the Chair, or accept that Tuheitia and Te Arataura have successfully asserted their right to manage Tainui’s affairs independently of, and without reference to either the local marae – or Te Kauhanganui.

What will Te Arataura’s next move be if Te Kauhanganui defies the King’s fait accompli and reinstates its discarded Chairwoman? If past practice is any guide, the Advisory Board will ask for a court injunction to enforce its executive authority.

Right there is where Tainui’s drama starts spilling out of the realm of Tuheitia and into the realm of Elizabeth II. So, right now, the Prime Minister, Leader of the Opposition, Attorney General, and every other New Zealand MP, need to start thinking about what their next move will be if the worst happens, and a Pakeha judge, by sanctioning the subversion of Tainui democracy, shreds Article Three of the Treaty of Waitangi.

If our political leaders do not step in and prevent Tuheitia from succeeding where Charles I failed, then more than the whanau and hapu of Tainui have reason to feel afraid. Because, at that moment, all of us – Maori and Pakeha alike – will know that John Key’s deal with the Maori Party, has solidified into a dangerously intimate and profoundly undemocratic alliance between the executive arm of the Pakeha state, and a small, legally protected clique of aristocratic Maori politicians and businessmen.

The very same combination of unaccountable political and economic power which our ancestors, for nine bloody years, fought a vicious civil war to break up and bring under their control.

This essay was originally published in The Dominion Post, The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Star of Friday, 10 December 2010.