Comity Be Damned! The State’s Legislative Arm Is Flexing Its Constitutional Muscles.

Packing A Punch: The election of the present government, including in its ranks politicians dedicated to reasserting the rights of the legislature in shaping and determining the future of Māori and Pakeha in New Zealand, should have alerted the judiciary – including its anomalous appendage, the Waitangi Tribunal – that its days of calling the shots on race relations in general, and the Treaty in particular, were coming to an end.

THE CONSTITUTIONAL PRINCIPLE of “comity” acknowledges the susceptibility of what should be complimentary state functions to dangerous entanglement. It enjoins the three branches of government; executive, legislative and judicial; to demonstrate a mutual respect for each other’s functions. Without “comity”, not only is the smooth functioning of the three branches of government put at risk, but also the political legitimacy of the state itself.

This is a big enough ask in a republic with a written constitution, but it imposes an enormous set of expectations in countries governed by the Westminster System. When the executive and legislative arms are conjoined, as they are under the Westminster System, the judicial arm is acutely exposed to being bullied into conformity by its “brothers”. It is a bold and/or reckless judiciary that negates the virtues of comity by challenging the elected centres of state power head-on.

The limits of judicial power have been on vivid display in the palace of Westminster ever since the Supreme Court of the United Kingdom declared “unlawful” the legislative mechanisms devised by the Conservative Government of Rishi Sunak to “Stop the Boats!”. Incensed by this breakdown in comity, Sunak and his party passed a law negating the judgement of the Supreme Court justices. Regardless of the actual conditions on the ground, the House of Commons has declared the Central African state of Rwanda to be a “safe place” for asylum-seekers.

In the course of this bitter constitutional arm-wrestle with their own judges, Conservative MPs have voiced equally bitter condemnations of the European Convention on Human Rights (the charter drafted in the late-1940s by the UK, among others, in the aftermath of Nazism’s defeat) and its judicial extension, the European Court of Human Rights (ECtHR) whose jurisdiction still extends across the United Kingdom.

From the perspective of Tory MPs, British judges overturning the will of the elected representatives of the British people is bad, but manageable. On the other hand, being told what to do by a bunch of European judges is intolerable. Small wonder, then, that there is a growing clamour from the British Right for the UK to repudiate the Convention and withdraw altogether from the ECtHR. Predictably, human-rights activists in the UK are outraged and dismayed by such suggestions.

Historically, the principle of comity enjoyed only a brief lifespan in the United States where, early on in the history of the American Republic its Supreme Court seized – and has exercised ever since – the right to strike down as “unconstitutional” the decisions of the lower courts as well as the executive and the legislative branches. Unelected, and enjoying lifelong tenure, the nine justices of the US Supreme Court have wreaked havoc across two centuries of American history. “Dred Scott”, its most infamous judgement, declared that African-Americans could never enjoy the same rights as White Americans, and made the American Civil War inevitable.

Bringing the vexed issues of minority rights before the judicial arm has, however, always attracted those who cannot persuade either political leaders, or legislative assemblies, to respond to their appeals. The strategy is particularly attractive if the judiciary gives cause for activists to suspect that it might look sympathetically upon their respective causes.

So it was that, from the 1950s to the 1970s, the US Supreme Court proved jurisprudentially obliging where federal and state legislatures proved politically obdurate. Legally outmanoeuvred by liberal lawyers and judges, the American Right drew the obvious lesson from historic victories like “Roe v. Wade” – make sure that conservatives, not liberals, dominate the Supreme Court. Implementing that strategy took the Federalist Society the best part of 50 years, but it got there in the end.

Naturally, with the judiciary in the hands of their enemies, left-wing Americans reached out instinctively for the legislative branch – most especially those provisions of state constitutions allowing for legislation by plebiscite. Statewide referenda on issues enjoying clear majority support, like abortion, were able to overcome even the most outrageous of Republican gerrymanders.

And now the principle of comity looks set to vex the New Zealand political scene. The Waitangi Tribunal (which entertains pretensions to being a court) has summonsed a cabinet minister, Karen Chhour, to appear before it and answer its questions.

This unprecedented move has elicited strong, and arguably quite threatening, responses from senior parliamentarians outraged by what they clearly consider to be an egregious breach of the principle of comity. In turn, their remarks have prompted claims that the cabinet members responsible, David Seymour and Shane Jones, are constitutionally out of line and should be reprimanded by the Prime Minister.

The passions now in evidence have not arisen out of nowhere. For at least three decades the New Zealand courts have been encroaching on territory that rightly belongs to the legislature. That the legislature deliberately set the judiciary up to act as its proxy on the Treaty of Waitangi does not excuse the latter’s reckless acceptance of its poisoned chalice. The fraught historical relationship between Māori and Pakeha is simply not susceptible to judicial remedy, being adjudicable only by the electorate – responding through the ballot box to policy alternatives thrashed out by New Zealand’s political parties.

Unfortunately, the lawyers, judges, and university professors, who had taken responsibility for dealing with the volatile matters vouchsafed to them by frightened politicians were not prepared to let the voting public adjudicate the principles of the Treaty of Waitangi, or any of the other pressing issues driving race relations in New Zealand. As in the United States, the judges seized the initiative. The expectation was clear: on this, the judicial branch would be leading its executive and legislative brothers.

It was a decision only those not subject to electoral sanction could possibly have made. As the shape of a “Tiriti-based” constitution, in whose creation the overwhelming majority of New Zealanders had been denied involvement, began to emerge, revealing a schema in which the democratic principle was being treated as, at best, an irritant, and, at worst, something to be eliminated altogether in the name of “indigenisation” and “decolonisation”, the people, and at least some of their political representatives, began to realise just how far back along the road the judiciary had lost sight of the principle of comity.

The election of the present government, including in its ranks politicians dedicated to reasserting the rights of the legislature in shaping and determining the future of Māori and Pakeha in New Zealand, should have alerted the judiciary – including its anomalous appendage, the Waitangi Tribunal – that its days of calling the shots on race relations in general, and the Treaty in particular, were coming to an end.

In the spirit of comity, the judiciary and the Waitangi Tribunal should have stepped back, relieved, perhaps, that the executive and legislative branches of the New Zealand state were, at long last, stepping up to their constitutional responsibilities. What they chose to do instead, however, was summons Karen Chhour.

As Crown Law’s counsel have been making admirably clear in the High Court today, that was a mistake.

This essay was originally posted on The Democracy Project website on Monday, 22 April 2024.

Reality Bites.

Repeat After Me: Te Ao Maori is a metaphor, not a place. Te Tiriti o Waitangi is not a bridge, it is a highly contentious political document. Human-beings inhabit one world, not many.

KELVIN DAVIS believes that Karen Chhour is looking at the world through a “vanilla lens”. 

Racially-charged sentiments of this sort used to be reserved for embarrassing Pakeha uncles, a little the worse for drink following a big Christmas Dinner. Family members winced at the old man’s reliance on “Māori blood” fractions to determine who was, and wasn’t, a “real Māori”. 

Equally embarrassing, however, is the spectacle of a Māori cabinet minister belittling an Act MP of Ngāpuhi descent for refusing to leave “her Pakeha world”. New Zealanders of all ethnicities now need to confront and deconstruct Davis’s objectionable ethnic dualism – because it is extremely dangerous.

Challenged in the House, by Chhour, to account for Oranga Tamariki’s treatment of vulnerable children, Davis, the responsible minister, responded: “What the Member needs to do is cross the bridge that is Te Tiriti o Waitangi from her Pākehā world into the Māori world and understand exactly why, how the Māori world operates.”

What, exactly, is the Minister trying to convey with these words?

Essentially, Davis was declaring the existence of two quite distinct realities – Māori and Pakeha. Viewed from the perspective of Pakeha reality, the behaviour of Oranga Tamariki may appear to be egregiously negligent – even cruel. But, viewed from Te Ao Māori, its behaviour may be construed in an entirely different way. The key to unlocking this profound ontological problem is Te Tiriti – or, at least, Te Tiriti as currently interpreted.

The contemporary interpretation of the Treaty of Waitangi would have us believe that it set out to define the relationship between Māori, Pakeha, and their respective instruments of governance. That it was, indeed, a document intended to regulate the interaction of two very different realities. Two ethnic worlds, which were to remain separate but equal in perpetuity.

In 1840, such ethnic dualism made a certain kind of sense. When the Treaty was signed there were barely 2,000 Pakeha in the whole of New Zealand, and about 80,000 Māori. The world beyond New Zealand had a foothold on these islands, but not much more. For most Māori, their world was the only world – all contact with the islands to the north having been broken centuries before. The idea that, in the space of less than 30 years, the world of these strangers might overwhelm their own would have seemed preposterous to most of those present at the signing of the Treaty in February, 1840.

Most – but not all. There were Māori at Waitangi who had crossed the Tasman to Sydney. Some had made it as far as Europe. They knew that this much larger world, hitherto oblivious to the existence of the Māori, was unlikely to leave their people in peace for very long. They had seen the ships of the Americans and the French anchored in their bays, and they were as aware as the British authorities that the New Zealand Company would soon be causing all kinds of trouble for iwi and hapu south of Lake Taupo.

However prettily the Treaty expressed the fiction of kawanatanga and tino rangatiratanga accommodating each other’s needs in peace and harmony, the Māori world would not long survive its collision with the rest of Planet Earth.

And so it proved. Call it the inexorable march of “civilisation”; call it “colonisation; call it the making of the New Zealand nation; call it what you will. Te Ao Māori soon ceased to be a description of reality and became, instead, a metaphor. And metaphors are poor armour against the real weapons of one’s foes. The Pai Marire faith may have reassured its warriors that a divine power would deflect the Pakeha bullets – or turn their soldiers to stone – but the imperial troopers cut them down regardless. In the end, there is only one world.

Kelvin Davis knows this as well as anyone. So why is he insisting on treating metaphors as if they were scientific facts? The only rational answer is that he, along with those controlling the increasingly powerful Māori corporations arising out of the Treaty Settlement Process, intends to alter the political reality of New Zealand in such a way that the Māori aristocracy, and the te Reo-speaking, tertiary-educated, professionals and managers of the Māori middle-class (the only Māori worth listening to?) will soon be wielding very real authority over the rest of New Zealand.

Included among “the rest” will be all those Māori without te Reo, without tertiary credentials, without six-figure salaries. Māori struggling to make it through the day in a world that has little sympathy for the poor. Māori without proper housing. Māori on the minimum wage. Māori lost to drugs and alcohol and crime. Māori whose kids suffer horribly for the sins of their fathers and mothers. Māori with backgrounds identical to Karen Chhour.

Chhour was demanding to know what Davis was doing for these, the most vulnerable inhabitants of her world, the real world, the only world. And all he could offer, by way of an answer, was a metaphorical bridge to a world that disappeared 250 years ago. A world which certainly cannot be conjured back into existence by a Minister of the Crown who does not care to be questioned by a wahine Māori who, all-too-clearly, sees him struggling to do his job.

This essay was originally posted on The Daily Blog of Friday, 30 September 2022.