If It Ain’t Broke, Why Fix It?

Still Going Strong: Why has the Minister of Justice cobbled together a group of “progressive” academics, most of whom subscribe to the core beliefs of Māori nationalism, “decolonisation”, and te Tiriti revisionism, to “review” our political system? In the absence of any convincing evidence that our electoral machinery is “broke”, why is the Labour Government so determined to “fix” it?

DEBORAH HART is sceptical about democracy’s effectiveness. Or, at the very least, she believes it can be improved. “We should never take for granted that our electoral system, or indeed our democracy, will work effectively”, says the Chair of the Independent Electoral Review Panel.

It’s a rather curious comment for the person charged with giving our electoral system the once-over to toss – almost randomly – into the “conversation” about New Zealand’s democracy. After all, New Zealand boasts one of the oldest, continuously operating, democracies in the world. Countries much larger and more powerful than our own cannot point to an uninterrupted stretch of free and fair elections of nearly 130 years. Neither the French nor the Italians could make such a boast, and certainly not the Germans or the Russians.

Not only were New Zealand women the first to be enfranchised, but its indigenous people, the Māori, have enjoyed permanent parliamentary representation since 1867. Indeed, Māori were exercising their right to vote years before their Pakeha brethren. The citizens of very few nations have had the benefits of universal adult suffrage for as long as Kiwis. Certainly not the British or Americans. (The women of the United States won the federal franchise in 1920, and British women were not fully enfranchised until 1928!)

What’s more, our Mixed Member Proportional (MMP) electoral system, in operation since 1996, has successfully rid our democracy of the unedifying spectacles of yesteryear, when individual political parties receiving considerably less than 50 percent of the votes cast, somehow ended up commanding a majority of the seats won. MMP has also allowed political parties to use their “Party Lists” to more accurately reflect the rich diversity of the New Zealand people. Our House of Representatives, formerly a chamber dominated by old, white, men, is, at last, what it says on the tin.

There are some who lament New Zealand’s lack of a written constitution – on the model of America’s and Australia’s. Others criticise our unicameral parliament, arguing that we would be better served by restoring its second chamber, abolished by National’s first prime minister, Sid Holland, in 1950.

The problem with written constitutions is that the inevitable conflicts over their interpretation are resolved by unelected lawyers in judges’ robes. And, as anyone who’s been paying attention to US politics recently knows, allowing judges to determine what should and shouldn’t be included among the fundamental rights of citizens, can throw up some very disturbing results.

With their single house of Parliament, their unwritten – and hence flexible and adaptable – constitution, and their highly efficient electoral machinery, New Zealanders are the masters of their own destiny to a degree unencountered among many peoples. Our courts cannot strike down legislation passed by the House of Representatives, nor can one Parliament bind another – both prohibitions guaranteeing a radically majoritarian mode of government. If the essence of democracy consists of giving effect to the will of the majority, then New Zealand must rank as one of the most democratic nations on Earth.

Why then did the Minister of Justice see fit to cobble together a group of “progressive” academics, most of whom subscribe to the core beliefs of Māori nationalism, “decolonisation”, and te Tiriti revisionism, to “review” our political system? In the absence of any convincing evidence that it is “broke”, why is the Labour Government so obviously keen to “fix” our electoral machinery?

Some idea of the expectations raised by the formation of the Independent Panel may be gleaned from “advocate and political commentator” Te Matahiapo Safari Hynes, who told Radio New Zealand’s Pokere Paewai:

There’s only a certain level that we can exist as Māori within this system that’s currently here in terms of central and local government. There’s only a certain amount of things that we can achieve […..] We cannot achieve our full potential as a self-determining people within this political system. However this is what we have and we have to be a part of it.

This is, indeed, “what we have”, but one senses that Mr Hynes’s intention to be “a part of it” is the same as the Lion’s intention to be “part of” the herd of wildebeest he is tracking. One also gets the uneasy feeling that the members of the Independent Electoral Review Panel are committed to doing everything within their power to help him.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 18 November 2022.

A No. 8 Wire Constitution - That Works.

That'll Do: An awful lot of Kiwis either do not understand, or do not approve of, the way MMP operates. What we have here is MMP – with FPP characteristics. A No. 8 Wire constitution – that works.

NEW ZEALAND AND GERMANY share a common electoral system, and last weekend both countries went to the polls. That’s where the parallels would appear to end, however, because the Germans draw the line at offering-up hostages to political fortune. Every German voter entering a polling booth last Sunday was well aware that should the far-right Alternative For Germany (AfD) party cross the 5 percent MMP threshold, none of the other parties represented in the German Bundestag (federal parliament) would have anything to do with it.

Left-wing German voters entered the polling booth with even more information. They knew that if the far-left Die Linke party re-entered the Bundestag, then neither the centre-left Social Democratic Party (SDP) nor the Greens, would have anything to do with it. Bear in mind that, for the last four years, a theoretical centre-left majority has existed on the Bundestag floor. Regardless, neither the SPD nor the Greens wavered in their opposition to Die Linke’s political connections to the remnants of the former East Germany’s Socialist Unity (i.e. Communist) Party.

Now, consider New Zealand’s predicament. Upwards of two million Kiwi voters went into the polling booths last weekend without a clue as to which of the two major political parties NZ First would join forces with in the event that such an arrangement became necessary. Even more astonishingly, neither of the two major parties was willing to rule out entering into a coalition deal with NZ First.

It is difficult to imagine such a scenario unfolding in Germany. Confronted with a political party committed to stripping a vulnerable ethnic minority of their guaranteed parliamentary representation; tearing up the country’s founding document; reducing the number of parliamentary seats by a sixth; and dramatically diminishing the flow of immigrants across the nation’s border; there can be little doubt that it would have been shunned by Germany’s mainstream political parties in exactly the same fashion as the AfD.

Many New Zealanders will, of course, object that no one takes these NZ First promises at their face value – least of all National and Labour. To accept this, however, is to confirm that neither our leading politicians, nor the electorate itself, take New Zealand’s parliamentary democracy all that seriously. By refusing to regard the policies of NZ First and the promises of its leader, Winston Peters, as truthful statements of genuine intent, we identify ourselves as citizens whose understanding of politics is instinctive rather than cerebral.

It points to an electorate whose constitutional sensibilities are overwhelmingly informed by the custom and practice of successive generations of politicians. Not so much Hegel and Heidegger, as “don’t worry, mate, she’ll be right”. We inhabit a political culture in which a generous helping of cynicism is considered essential to getting the democratic recipe right. New Zealand’s constitutional theory elevates good-old Kiwi common-sense well above strict Germanic ratiocination.

No matter how many times our formal constitutionalists insist (quite correctly) that there is no rule which says the party with the most votes gets to form the next government, New Zealand’s common-sense constitutionalists, guided by political precedent, will reply: “Yeah, yeah, we know there’s no ‘rule’, mate, but, at the end of the day, the largest party will be the party that calls the shots in the next government. Wouldn’t be fair, otherwise!”

Most certainly, that is not in “the spirit of MMP”. For the very simple reason that most Kiwis either do not understand, or do not approve of, the way MMP operates. What we have here is MMP – with FPP characteristics. A No. 8 Wire constitution – that works.

The Germans would, no doubt, respond to all this evidence of our simplicity with a sad smile. “Yours has been an extremely lucky country”, they would say. “But what will you do when your luck runs out? What will you do when you are confronted with a politician and/or a party which is deadly serious about the policies it puts before you? How well will your easy-going cynicism about politics and politicians serve you when you are confronted by a party that is fuelled by the most uncompromising idealism? We Germans have experience of such politicians and parties. Which is why, when we encounter them, we shun them, and shut them out. You should do the same.”

“Shut out Winston? Nah, mate, that wouldn’t be fair!”

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, 29 September 2017.

MMP With FPP Characteristics: New Zealand's DIY Electoral System.

Mixed Feelings About Mixed Member Proportional Representation: In 1993, New Zealanders embraced MMP partly out of conviction, but mostly out of a desire to blacken the eyes of those who had used FPP to turn their country upside-down for no good reason. Since then, the Kiwi voter has fashioned a DIY electoral regime: somehow incorporating the majoritarianism of the old system into the checks and balances of the new.

MUCH HAS BEEN WRITTEN about who “won” the 2017 General Election. Sharp differences have emerged between those who have judged the outcome as a clear National victory, and those who insist that Labour, with the assistance of the Greens and NZ First, has every right to anticipate forming a new government. In essence, this dispute turns on whether New Zealand’s political system is a straightforward creature of the Law, or something constantly emerging from the customs and practices of the people who inhabit it. I place myself among the latter.

In fairness to all the legalists out there, I must acknowledge that in terms of such formal constitutional conventions as New Zealand possesses (and there are surprisingly few) there is absolutely nothing to prevent the Labour Leader, Jacinda Ardern, from advising the Governor-General that she has negotiated an agreement with NZ First and the Greens which places her in command of a majority of the seats in the House of Representatives. Upon confirming that advice, the Governor-General would have no option but to invite Jacinda to form a government.

That Labour, NZ First and the Greens can do this is not in dispute. What is disputed, however, is whether such an agreement will be negotiated. The distance between “can” and “will” is vast – and filled with obstacles.

The greatest of these obstacles is the persistence of the electorate’s political vision. Although New Zealand has been conducting MMP elections for 21 years, the memories and expectations of voters old enough to have participated in elections conducted under the rules of First-Past-The-Post (FPP) continue to exert a powerful influence on the public’s understanding of political events – as anyone who reads the Letters-to-the Editor columns will attest. The most persistent of these political after-images – that the party obtaining the most votes gets to become the government – is particularly tenacious.

Augmenting the electorate’s persistence of political vision, is the enduring resentment of those New Zealanders who have consistently voted to retain and/or restore the FPP system. A substantial minority, around 40 percent of the electorate, emphatically rejects the idea that New Zealand is well-served by proportional representation. These citizens remain firmly wedded to the simple plurality, single-member constituency, system of electing members of parliament. Among such voters, the legitimacy of the MMP system’s Party lists and List MPs continues to be hotly contested.

Even among those who support MMP, considerable confusion still exists as to the relative importance of the Party Vote and the Electorate Vote. Among voters there is a widespread misapprehension that Members of Parliament elected to represent their local communities deserve higher status than MPs elected off a Party List the public had no part in drawing-up. The key role of the Party Vote in determining the outcome of a general election continues to elude many voters.

It is tempting to argue that, when determining the political future of the country, the misapprehensions and ignorance of ordinary voters should not be accorded any special weight. Certainly, our electoral legislation makes no such allowance. If electors allocate their two votes according to the mistaken assumption that their Electorate Vote counts for more than their Party Vote, then that’s just too bad. They should have paid closer attention to the Law.

Unfortunately for the legalists, New Zealand’s politicians cannot afford to be so definitive. Our political leaders know that while the Electoral Commission must operate according to the strict rules of the Electoral Act, their own operations must be guided by the rules the electorate assumes to be in force. These DIY electoral rules have grown out of the custom and practice of the politicians whose job it has been, since 1996, to make MMP work. In making these political choices, our leaders have paid considerably more attention to what the voters think they should do, than to what the constitutional conventions laid down in the Cabinet Manual actually empower them to do. In doing so, they have created a whole new set of “unofficial” conventions.

The most important of these is that the party winning the most votes, and taking the most seats, must be allowed to form a government. To say this represents outdated FPP thinking is true – but irrelevant. Most New Zealanders balk at the prospect of being ruled by a “coalition of the losers”. In their minds, a plurality is as good as a majority – and that “majority’ must rule. This widely-held (albeit completely erroneous) view of electoral best-practice leads the voters inexorably on to the next-most-important convention: that it is the duty of whichever small party is best positioned to do so (ideologically and/or practically) to supply the largest party with the votes it needs to give New Zealand “strong and stable” government.

The fact that the voters have got it all wrong is nowhere near as important as the fact that they believe themselves to be in the right. After all, this is how all previous MMP governments have been formed, and a consistently large majority of voters are firmly of the view that this is how all future MMP governments should be formed. Perhaps the best way of describing New Zealand’s DIY electoral system is: MMP with FPP characteristics. It may not have the slightest justification in either law, or the officially-defined constitutional conventions, but woe betide any politician who sets his, or her, face against it.

This essay was originally posted on The Daily Blog of Wednesday, 27 September 2017.

Not Dead Yet: A Response to Rachel Stewart’s Musings on Democracy.

The Falcon And The Falconer: Rachel Stewart today (3/5/17) took very public exception to my critique (reprinted below) of her column in last Wednesday's NZ Herald. Her unrelentingly ad hominem response (which, rather surprisingly for someone of Stewart's politics, mixes racism, sexism and ageism in equal measure) fails to address any of the criticisms levelled at her Death Notice for Democracy. I invite the readers of Bowalley Road to read all three documents and draw their own conclusions. [For those who are interested, here is the link to Professor Jack Vowles critique of Stewart's original column. - C.T.]

 

I’M A BIG FAN of Rachel Stewart’s writing. Her column in the NZ Herald has quickly become one of those “must-read” contributions to the national conversation. She’s to be admired for her courage, too. Anyone who takes on Big Dairy in this country knows exactly what to expect – and it usually arrives. This morning’s contribution, however, on the subject of democracy, was not one of her best.

 

Even when undertaken with the best of intentions (as I’m sure this particular column was) dissing democracy is never, ever, a good idea. It stands among the most extraordinary – and fragile – of human achievements. Its cost, in terms of human suffering, has been huge, and most of its victories have been tragically temporary. The historical default setting for state conduct is authoritarian (descending all-too-frequently into brutal tyranny). When it comes to political systems, democracies remain the precious exception – not the rule.

 

Which is not to say that the practice of democracy is always entirely edifying. It was the German Chancellor, Otto von Bismarck, who quipped that: “Laws are like sausages – it is best not to see them being made.”

 

That’s a sentiment with which Rachel clearly has some sympathy.

 

“If society feels less moral reverence to the democracy ideal, who can honestly blame them? Having listened to Clinton and Trump battle it out for a year before the unthinkable became real, I get it.”

 

Obviously, last year’s US presidential election still rankles. But it is always a mistake to confuse outcome with process. Rachel may have been disappointed that Bernie Sanders lost to Hillary Clinton, but to suggest that the Democratic Party “fiddled with the dials and switches to ensure Bernie Sanders never got the nod” is just plain wrong. Bernie lost because he got fewer votes than Hillary – pure and simple. He made the cardinal error of not competing hard and early in the American South – the very same mistake that cost Hillary the nomination back in 2008.

 

Rachel is also scornful of the US Electoral College’s contribution to democracy: “Then there’s Trump. Astonishingly elected, but by fewer than three million votes than his rival. Only in America. Land of the seriously deficient electoral system.”

 

Except, of course, the whole point of the Electoral College is to ensure that the rights of the smaller American states are not completely obliterated by the superior numbers of the larger ones. The United States is, after all, a federation. What benefit would the citizens of Wyoming or Rhode Island derive from belonging to the Union if they were forever being outvoted by the citizens of California, New York and Texas? If Hillary had spent less time in those three states and more time in Wisconsin, Michigan and Pennsylvania she would now be the second President Clinton.

 

More worrying still, is Rachel’s evident lack of understanding of her own country’s democratic system.

 

“Here at home we find we're stuck with the lack-lustre Mr English as Prime Minister, and not of our choosing. He was the pre-ordained prefect left to us by Key when he exited stage right. Yeah, the Nats held an internal mock election but, that’s all it was. The appearance of democracy when you're not really having it.”

 

Umm, no, the Nats didn’t. Caucus elections frequently fail to come to an actual vote, for the very simple (and obvious) reason that if there’s one thing democratic politicians know how to do really, really well – it’s count. When a candidate realises that he or she doesn’t have the numbers to win, they simply withdraw from the race. Why stand if you’re certain to lose? There’s always next time!

 

And besides, under our Westminster System of parliamentary democracy, voters NEVER get to elect the Prime Minister. That job goes to the Member of Parliament who convinces the Governor-General that he or she commands a majority of the House of Representatives – the politicians we DO get to elect.

 

Political parties makes this job a great deal easier and ensure that the person who emerges as Prime Minister gets to remain in office for a sensible period of time. That’s why we have them. And if they often seem rather cautious and overly influenced by special interests, then there’s a very simple way to remedy that deficiency – become a member and turn them into something worth voting for!

 

Danyl Mclauchlan makes the case for practical, get-down-and-dirty politics much better than I ever could in his excellent review of Max Harris’s “The New Zealand Project”:

 

“Politics is technocratic because modern societies are complex: many things could be better, but almost everything could be much, much worse, and all the high-minded values in the world are worthless if you can’t keep the lights on. It is compromised because pluralism – the challenge of different groups in society holding different and conflicting but reasonable and valid views – is the central problem in politics, and cannot be fixed by re-educating everyone. Political reform should be cautious, because outcomes are uncertain and overconfidence bias is real, especially among groups of intelligent experts who reinforce each other’s assumptions – a dynamic that often leads to catastrophic failure despite the best of intentions.”

 

So, Rachel. Is democracy having a rough time at the moment? Yes, it is. But that only reinforces the need to get stuck in and organise it back into robust good health. Do money and backroom wheeling and dealing sully the search for “pro bono publico” – the public good? Of course they do – but not to anything like the extent you might expect. And even when they do get out of hand, and the plutocrats begin menacing the democrats: a corrupt democracy is always – always – better than a virtuous tyranny. (As Carrie Mathison discovers in the final episode of the sixth series of “Homeland”.)

 

Because, to quote the pithy summation of that old rogue Winston Churchill: “Democracy is the worst form of government, except for all the others.”

 

This essay was originally posted on The Daily Blog of Friday, 28 April 2017.

John Key's Colonial Daze.

"No, no, Mr Key, you are our New Zealand subject, not our British subject."

 

“WE ARE AT THE CORE … a British colony and I thought there was an argument that New Zealanders could be treated in a way which reflected that.”
 

That was John Key’s pitch to the British prime minister, David Cameron, in a pull-aside at last week’s nuclear summit in Washington DC. The New Zealand prime minister was attempting to soften the treatment being meted out to Kiwis under the UK’s harsh new immigration regime.
 

Now, we all know our Prime Minister is notoriously loose with the language he uses, so our first impulse is to dismiss Key’s constitutionally and historically nonsensical “We are at the core … a British colony” as just another (particularly bad) example of his verbal and conceptual imprecision.
 

We would simply assume that he was attempting to play the “How can Mother England treat New Zealanders so badly after everything we’ve done for her?” card. Riffing on that favourite teenage riposte: “I didn’t ask to be born!” Something along the lines of: “Hey! It was your lot who colonised New Zealand in the first place! Remember?”
 

But if those were our assumptions, then we got it badly wrong. Because this morning (4/4/16) on Paul Henry’s show, with David Cameron nowhere in sight, John Key said it again. Twice.
 

“We are a British colony.”
 

Somehow, New Zealand’s Prime Minister has convinced himself that, constitutionally, his country remains a colonial appendage of the United Kingdom. That the granting of Self-Governing Dominion status in 1907 never happened. That the 1931 Statute of Westminster, which the First Labour Government adopted in 1947, thereby signalling this country’s emergence into full and independent nationhood, is but a figment of our historians’ imaginations. That the independent “Realm of New Zealand” – of which Queen Elizabeth II is “Sovereign in Right” – has no legal existence.
 

Can Key really be so ignorant? Can the man who has led this country for eight years truly possess so tenuous a grasp on its political and constitutional realities? Surely not. Because if it’s true; if our 176 year journey as a people towards nationhood and independence means precisely nothing to him; then we are all in much more trouble than we thought.
 

It must mean that all the Prime Minister’s recent talk about changing the New Zealand flag to “better reflect who we are” was utterly insincere. What would a country that is still “at the core … a British colony” want with a flag that did not proudly display, in its top left-hand corner, the Mother Country’s Union Jack?
 

Even more puzzling is what the Prime Minister believes himself to be doing all day. Because colonies are not governed by Parliaments and Prime Ministers, they’re ruled by Governors. And these Governors are in no way accountable to the people they rule, but to an imperial government far, far, away.
 

If New Zealand is “at the core … a British colony”, then it is neither independent, nor a democracy.
 

It couldn’t be, because, historically speaking, a colony is a place where imperialism rips-in, rips-out and rips-off. A place where the indigenous people are duped, dispossessed and exploited.
 

Oh, heck, wait a minute …
 

This essay was originally posted on The Daily Blog of Tuesday, 5 April 2016.

“Prepared To Make Any Sacrifice” – How New Zealand Went To War in 1914.

Signed, Sealed, Delivered - I'm Yours! The Governor of New Zealand, the Earl of Liverpool, prepares to read the message from the King-Emperor, George V, which officially signalled this country's participation in the First World War. A conflict that would, ultimately, claim the lives of 18,000 young New Zealanders.

 

HOW DO YOU THINK New Zealand went to war in August 1914? No, this is not an operational question about military units, points of embarkation and troop carriers. What’s being asked here is a constitutional question. Essentially, by what process were New Zealanders impelled into a state of war?

 

Did Parliament declare war on Germany? Were the ties of empire invoked? Was the German Emperor’s dismissal of Belgium’s 1839 Treaty of Neutrality as a mere “scrap of paper” held up by the then Prime Minister, Bill Massey, as an indisputable casus belli – cause for war? Were the Members of New Zealand’s Legislative Council and House of Representatives enjoined to stand by their King-Emperor and commit the Dominion’s armed forces to helping Britannia put Germany’s upstart Kaiser back in his box?

 

Massey’s conservative Reform Party would certainly have voted for war. But what about the Opposition? Would the Liberal Party leader, Joseph Ward, have dared oppose Britain, France and Russia’s war with Germany? Not likely. With an election looming in December, Ward would, almost certainly, have thought it better to play the “national unity” card.

 

After all, the Liberal Party had not been defeated at the ballot-box. Bill Massey was Prime Minister only because, two years earlier, he had managed to carry a Vote of No Confidence against Ward’s predecessor. Reform was desperate for a popular mandate – especially after the divisive events of 1912-13.

 

Which is why, on the question of whether or not to join Mr Asquith’s War, Ward would undoubtedly have thought it best to allow no daylight at all between his own party’s position and the Government’s. (And it very nearly worked: the 1914 General Election, which Massey won, was one of the closest in New Zealand’s political history.)

 

But the Liberals were not the only occupants of the Opposition Benches in August 1914. Alfred Hindmarsh’s United Labour Party had two votes to cast – as did the new, more left-wing, Social Democrats. What would Paddy Webb, the firebrand socialist from the West Coast seat of Grey, have to say about New Zealand joining an imperialist war? And James McCombs, the SDP Member for Lyttelton? Why would a left-wing intellectual, and the newly-elected representative of Lyttelton’s working-class, vote for a war between Kings and Kaisers?

 

The truth is, we shall never know how the New Zealand Parliament would have voted on the question of whether to join Great Britain, the French Republic and the Russian Empire in a war against Germany and Austria-Hungary – for the very simple reason that all the key decisions that led New Zealand into the First World War were made in London – not Wellington.

 

The Governor: Arthur William de Brito Savile Foljambe, Fifth Earl of Liverpool.



New Zealanders officially learned that they were at war Germany and Austria-Hungary only when, on 5 August 1914, the Governor of New Zealand, one Arthur William de Brito Savile Foljambe, fifth Earl of Liverpool, stood upon the steps of Parliament, in front of a crowd of 15,000 Wellingtonians, and read the following missive from the King-Emperor, George V.

 

“I desire to express to my people of the Overseas Dominions with what appreciation and pride I have received the messages from their respective Governments during the last few days. These spontaneous assurances of their fullest support recall to me the generous self-sacrificing help given by them in the past to the Mother Country. I shall be strengthened in the discharge of the great responsibilities which rest upon me by the confident belief in this time of trial my Empire will stand united, calm, resolute, trusting in God.”

 

To which the Governor, Liverpool, responded:

 

“New Zealand desires me to acknowledge Your Majesty’s gracious message, and to say that come good or ill she, in company with the other dominions and dependencies of the Crown, is prepared to make any sacrifice to maintain her heritage and her birthright.”

 

And that was that. Flanked by the Speakers of the Legislative Council and the House of Representatives, and with the Judges of the Supreme Court and an assortment of MPs providing him with a fine patriotic backdrop, the Governor acknowledged the cheers of the King-Emperor’s subjects and returned to Government House.

 

Liverpool’s words were very far from being empty. In the years ahead, and in the company of “the other dominions and dependencies of the Crown”, New Zealand would send nearly a tenth of her population – 100,000 young men – to “maintain her heritage and her birthright” as a member in good standing of the British Empire. Fully 18,000 of that terrible tithe of New Zealand’s population would lose their lives in the service of King-Emperor, and a further 41,000 would be wounded.

 

Exactly how Liverpool, the man who in October 1913 – less than a year earlier – had authorised the deployment of military and naval personnel - "Massey's Cossacks" - to suppress what came to be known as the “Great Strike”, was in any position to know what “New Zealand” thought about sending her sons to war is difficult to discern. There had been no debate by those “New Zealand” had elected to represent her. Nor is it clear by whose leave Liverpool authorised the making of “any sacrifice” in the name of victory. Not a single vote had been taken.

 

Amidst all the commemorations, and all the tearful invocations of the 18,000 young men who did not “grow old, as we that are left grow old”, it is as well to remember that it is not in the monarchical tradition to ask the King’s (or the Queen’s) subjects if they want to – let alone whether they should! – go to war. It remains a matter for the “Executive” alone.

 

This is as true today, as a much smaller force of New Zealand soldiers prepares to depart for the Middle East, as it was in 1914, when thousands of volunteers embarked for their fateful rendezvous with terror, disfigurement and death on the sheer slopes of Gallipoli.

 

A version of this essay was originally posted on The Daily Blog of Monday, 20 April 2015.

"Don't Tread On Me!" - Our Radically Simple Constitution

Leave Well Enough Alone: Had the British parliament not attempted to radically reshape its relationship with its American colonies the United States might never have been born. Most New Zealanders harbour an equally deep suspicion of any politician foolish enough to "mess" with one of the world's most radically democratic constitutions. The Constitutional Review Panel certainly opted for pragmatic discretion over philosophical valour.

 

IT ARRIVED, as I rather expected it would, with a whimper - not a bang. Just as well really. Changes in the way we govern ourselves; in the hardwiring of the state itself; are not the business of hand-picked appointees - no matter how grand. Constitutions are not made by committee.

 

The report of the Constitution Review Panel, a concession extracted from the National Government by their Maori Party ally in 2008, offered little more by way of a final recommendation than that the “conversation” on constitutional matters, which the Panel itself had kicked off, should continue.

 

Outstanding!

 

But, realistically-speaking, what else could the Panel have recommended? There was - and is - no public clamour for constitutional reform from the New Zealand people and the very best efforts of the Panel to interest the public in its work fell spectacularly flat. Indeed, about the only thing the Panel could have done to elicit the popular buy-in it so desperately wanted would have been to bring down a report suggesting something other than maintaining the status quo.

 

Predictably, the worthy ladies and gentlemen of the Panel attributed this lack of interest to New Zealanders’ general ignorance of matters constitutional - a deficit they proposed to rectify by encouraging the teaching of civics courses in our primary and secondary schools.

 

A good idea? It depends on whether or not you agree that Kiwis are ignorant of their constitutional arrangements. Personally, I think the New Zealand people have a pretty good grasp of the way their system works.

 

Since 1852, the year they received a constitution from their colonial masters in London, New Zealanders have worked consistently to both simplify and radicalise their constitutional arrangements.

 

Within 40 years of being granted “responsible self-government” we had attained universal suffrage. The UK and the USA would not achieve the same result until the 1920s.

 

Within 100 years we had dispensed with the Legislative Council - New Zealand’s appointed upper house.

 

It took 144 years to replace the egregiously undemocratic first-past-the-post electoral system with a proportional form of representation.

 

Moreover, throughout that entire 161 year period of responsible self-government we have steadfastly refused to fasten ourselves into the straightjacket of a written constitution.

 

Given the radical simplicity of our constitutional arrangements - why should we?

 

As far as most Kiwis are concerned, their rights and freedoms; their ability to effect political change; the resilience of their democratic culture; all flow from the same source: a House of Representatives directly elected by the people for a three year term. That’s it. Popular sovereignty via Parliament. No more need be said.

 

Oliver Cromwell had to win the English Civil War, behead his King and abolish the House of Lords before he could sit in a unicameral parliament answerable to (some of) the electors. In the contemporary world, only the Israelis can boast of anything even remotely comparable to New Zealand’s constitutional simplicity.

 

Luminaries like Sir Geoffrey Palmer may lament this state of affairs and call for “A written constitution, including the Bill of Rights entrenched so that Parliament cannot ride roughshod over it, meaning the courts can enforce it against the Government” (The Dominion Post, 24/12/13) but, as the Constitutional Panel discovered to its obvious dismay, Kiwis are not in the least bit interested in curbing Parliament’s powers to “ride roughshod” over anyone and anything that stands in its Government’s way. Nor are they willing to cede to an unelected judiciary the power to second-guess and/or over-rule the will of the people’s representatives.

 

With a parliamentary term of just three years, most New Zealanders are confident that any government showing signs of going seriously off the rails can be thrown out of office before inflicting too much damage on the body politic. By the same token, however, if changes need to be made they expect their representatives to be able to make them completely free of the threat of judicial intervention.

 

Those who seek to complicate New Zealand’s constitution do so for reasons that have little to do with democracy. On the contrary, it is precisely with its radically democratic effectiveness that most “reformers” take issue.

 

New Zealanders No. 8 wire constitution may be inelegant and lacking in checks and balances - but it's ours.
 

Meddle with it at your own risk.

 

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, 27 December 2013.

Democracy versus The Majority

Those Ain't The Torches Of Liberty, Springfield! But is it even possible to argue for democracy against the will of the people? What if the majority just isn't that keen on liberty and justice for all?

IT’S EVERYWHERE: coming at you, confusingly, from both the Right and the Left. The former express their views emphatically, as fact: “Nobody gives a damn about the GCSB – or Andrea Vance. It’s a media beat-up!” The Liberal-Left convey their scepticism in question form: “Does the public really care about all this state surveillance and freedom of the press stuff? I mean, seriously? If they did, then surely National would be suffering in the polls? And they’re not.”

 

How should we respond to these responses? How does one argue against the expansion of the state’s surveillance powers, and the violation of a journalist’s privacy, when the reaction of the overwhelming majority of the population is either bland indifference, or (even more alarmingly) active support for the Government’s position?

 

Is it even possible to argue for democracy against the will of the people?

 

It’s a question of particular relevance to New Zealanders because, historically-speaking, we have never, as a people, been particularly interested in either recognising or upholding the civil and political rights of minorities. Majoritarianism is the strongest of our political traditions. Indeed, the idea that the shape and purposes of society can only be legitimately determined by a majority of its population has been the driving force behind the evolution of New Zealand’s informal constitution.

 

It is worth elaborating on this point a little.

 

Many, if not most, New Zealanders either do not know (or have forgotten) that their country once had two houses of Parliament. There was the House of Representatives, elected by universal suffrage, and the Legislative Council, whose members were appointed for seven years by the Governor-General on the advice of his ministers (i.e. by the government of the day). The “upper” chamber had the power to amend, review and delay legislation sent up to it from the House of Representatives. Its acknowledged purpose was to act as a check upon the majority derived and driven demands of the “lower” house.

 

The lower house did not care to be “checked”. In 1950, just three years short of its centenary, The Legislative Council was abolished by the First National Government.

 

Nothing now stands between the House of Representatives (and the governments drawn from its members) and the individual citizen. In New Zealand, a parliamentary majority cannot be gainsaid by anyone or anything. Lacking the “supreme law” of a written constitution, the legislative acts of Parliament cannot be challenged in the courts or struck down as “unconstitutional” by judicial fiat. About the only force capable of staying the hand of a government in possession of a solid parliamentary majority is the force of public opinion – and, even then, there are limits.

 

New Zealand parliamentarians – along with just about every other legislator in the world – are driven by one great desire: to be re-elected. This renders them particularly sensitive to shifts in public opinion – especially those shifts strong enough to make people change their electoral allegiances.

 

Think about the “anti-smacking bill”. The passage of this bill was sufficiently resented by Labour’s core voters to cause a significant number of them to either transfer their support to another party, or abstain. Labour’s failure to understand the mood of its supporters thus contributed materially to its 2008 defeat. National, by contrast, was confident that although a majority of its supporters (and, indeed, of all electors) were opposed to the anti-smacking legislation, they were not opposed enough to vote for National’s enemies.

 

And this is where I believe New Zealand public opinion currently stands in relation to the GCSB Amendment Bill, and the apparent, state-sanctioned, invasion of journalists Andrea Vance’s and Jon Stephenson’s professional and personal privacy.

 

If directly challenged on these issues, I suspect most Kiwis will come out unequivocally for the protection of their own personal privacy and, rather less enthusiastically, for the freedom of the press. What they remain to be convinced of, however, is that the GCSB Amendment Bill constitutes a serious threat, either to themselves or people like them.

 

So, a few political activists will have their “metadata” analysed and their e-mails intercepted. So what? It’s probably prudent to keep a watchful eye on such people. And, as for the rights of journalists? Well, for these exploiters of personal grief and political misadventure, the public has only one question: “How does it feel?”

 

Labour and the Greens have come out swinging on behalf of the public’s right to privacy and the freedom of the press because their MPs know that the people who vote for them care passionately about such things and expect them to take a strong stand in their defence.

 

National MPs, by contrast, are quietly confident that the Centre-Left’s concerns are minority concerns. Mr Key’s majority support is not about to abandon his government for left-wing activists, or journalists. At least, not any time soon.

 

This essay was originally published in The Press of Tuesday, 6 August 2013.

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.