Parliamentary Sovereignty And Its Discontents.

Saving The People From ... The People: The strangest aspect of the mass Israeli protests, from a New Zealand perspective, is that the judicial reforms proposed by Benjamin Netanyahu’s government would only confer upon Israel’s parliament, the Knesset, powers which the New Zealand House of Representatives has not only exercised for decades, but which have also been seen, by an overwhelming majority of Kiwi legislators, as critical to the health of New Zealand’s democracy.

BEGINNING IN LATE JANUARY, Israel has been rocked by a series of massive weekly protests against planned judicial reforms. Concentrated in Tel Aviv, Israel’s former capital and easily its most secular city, these protests have become increasingly disruptive. So much so that the far-right coalition government, led by Benjamin Netanyahu, appears poised to suppress them by force. Political commentators in Israel have begun to speak of the protests as evidence of a fundamental disagreement over the core nature and purpose of the Israeli state. About the only thing both sides can agree on is that Israel cannot survive such deep-seated divisions.

The strangest aspect of the Israeli protests, from a New Zealand perspective, is that the judicial reforms proposed by Netanyahu’s government would only confer upon Israel’s parliament, the Knesset, powers which the New Zealand House of Representatives has not only exercised for decades, but which have also been seen, by an overwhelming majority of Kiwi legislators, as critical to the health of New Zealand’s democracy.

The problem which the judicial reforms proposed by Netanyahu and his far-right colleagues seek to address is the Israeli judiciary’s current power to restrain, or, in extremis, overrule, the actions of both the Israeli Executive and the Knesset. In other words, these reforms seek to confer upon the Knesset what New Zealand’s House of Representatives already possesses – and jealously guards – parliamentary sovereignty. Netanyahu wants the Knesset to become what our House of Representatives already is: the highest court in the land.

What makes this whole constitutional stoush even more interesting, from a Kiwi perspective, are the similarities between New Zealand and Israel. Neither country has a written constitution, preferring to be guided by a set of basic laws and rights. Israel and New Zealand also lack an upper-chamber empowered to initiate, review and delay legislation. This unicameral system gives the legislators of both countries the sole right to make the laws. Both countries also operate under an electoral system of proportional representation– although, to be fair, Israel has a much purer variant of PR than New Zealand’s MMP. Israeli MPs do not represent electorates, all Knesset seats are allocated from party lists. Israel’s representation “threshold” (the share of the popular vote that must be won before seats are allocated) is 1.5 percent, compared to New Zealand’s 5 percent.

Where the two legislatures diverge, however, is over the status of the law conferring fundamental human rights upon their respective citizens. Legislation and/or Executive Orders which contravene Israel’s “Basic Law: Human Dignity and Liberty” may be (and have been) struck down by Israel’s Supreme Court. The author of the “New Zealand Bill of Rights Act”, Labour’s Geoffrey Palmer, wanted New Zealand’s highest court to be invested with similar authority, but so deeply entrenched is the principle of parliamentary sovereignty in this country that he was unable to persuade his colleagues to confer such decisive constitutional powers upon New Zealand’s judges.

Apart from the very obvious objection that unelected judges should not be given the power to overrule the elected representatives of the people, New Zealand legislators’ refusal to countenance judicial intervention can be traced back to two deeply ingrained Kiwi prejudices.

The first is class hostility – a phenomenon intimately bound up with New Zealanders long-standing self-identification as egalitarians. Judges are (rightly) perceived by “ordinary” New Zealanders as being drawn overwhelmingly from the upper-echelons of New Zealand society. The objection to these “posh bastards” overruling a Parliament made up of “ordinary people” like themselves dates all the way back to the Liberal Government of 1891-1912 and its presiding populist master, Richard “King Dick” Seddon. The rise of the Labour Party and the growing parliamentary strength of its working-class caucus only dug the anti-posh prejudice deeper into the nation’s collective political psyche.

The second factor is racial hostility. Repeated attempts by dispossessed Māori Iwi to seek redress through the New Zealand courts, though mostly unsuccessful, planted in the minds of Pakeha legislators the necessity of preserving Parliament’s privileged status vis-à-vis the Judiciary. The idea that the achievements (and the depredations) of the “Settler State” might one day be found wanting by the courts, aroused the most atavistic fears among Pakeha politicians of every ideological persuasion. What had been won by the gun, must never be reclaimed by the gavel.

Just how animated this racial rationale for parliamentary sovereignty remains was demonstrated very forcefully by the House of Representatives’ reaction to the Court of Appeal’s 2004 judgement on the foreshore and seabed. Labour Prime Minister Helen Clark, and her Attorney-General, Margaret Wilson, lost little time in reminding Māori, and the Judiciary, exactly who controls New Zealand.

The bloody circumstances of the State of Israel’s birth in 1948, and the mutually hostile ideological and religious groups that assisted it, encouraged Israel’s legislators to deny their parliamentary opponents the opportunity – albeit at some distant point in the future – to transform their narrow vision of Israel into law. The Basic Law relating to human dignity and liberty was, therefore, to be interpreted and enforced by a highly-qualified and non-partisan Judiciary. That way, no party, or collection of parties, commanding a temporary Knesset majority would be able to legislate their way into a position of permanent dominance.

The wise old Socialist-Zionists who founded Israel were only too aware of how quickly extremist minorities can become proscriptive majorities. They understood that the Israeli Supreme Court’s gavel was their best protection against the extreme Zionists’ legislative guns.

Unsurprisingly, young, well-educated, and increasingly secular Israelis are terrified by the plans of Netanyahu (himself under indictment for corruption by Israel’s courts) and his far-right allies to recreate in Israel the soft authoritarianism perfected by Hungary’s Viktor Orban. They are only too aware that moves to limit the authority and independence of the courts are proof positive that the shift to “illiberal democracy” has begun. The moment the defence of human dignity and liberty is placed in the hands of a temporary parliamentary majority of religious and nationalist extremists, there can be little doubt that neither principle has long to live.

Nor is it any longer an axiom that New Zealand parliamentarians are united in their determination to preserve the House of Representatives as New Zealand’s highest court. With so few MPs now drawn from working-class backgrounds, and so many of them in possession of legal qualifications, the possibility of the House being over-run by passionate, marginalised, justice-seeking populists from the wrong side of the tracks has ceased to be the progressive prospect it used to be. What might such a mob, unconstrained by a written constitution, an upper-house, an interventionist Judiciary, or even a progressive ideology, not descend to?

Members of Parliament who looked down with horror upon the fiery violence unleashed in Parliament Grounds by the great unwashed on 2 March 2022, and contemplating the possibility that people only marginally less extreme could one day constitute a majority in the House of Representatives, might be forgiven for shifting their gaze across Molesworth Street to the Supreme Court building, and whispering: “Why not?”

This essay was originally posted on the Interest.co.nz website on Monday, 13 March 2023.

Poisoning Nauru: How Australia Is Destroying A Pacific Neighbour’s Democracy, While New Zealand’s Government Looks On.

Silencing All Opposition: Matthew Batsiua, one of five opposition MPs expelled from the Nauruan Parliament for challenging the increasingly dictatorial regime of President Baron Waqa, is arrested for leading a protest demonstration against its latest crackdown on free speech and the Internet. While Australia, in the name of its brutal "Pacific Solution", is poisoning Nauru's democratic institutions, New Zealand looks on in silence.

 

CORRUPTION IS LIKE POISON. Once inside your system it immediately starts attacking your defences. Eventually, if nothing is done to counteract its effects, it kills you. The tiny Pacific island nation of Nauru, situated approximately 4,000 kilometres north of Auckland, has been corrupted by Australia. Slowly but surely, its democratic institutions are being poisoned.

 

Some would argue that it all began a hundred years ago when the Australians turfed out the Germans at the beginning of the First World War. At the war’s end, Nauru was declared a League of Nations “mandate” under the joint control of the British, Australian and New Zealand governments. In reality, however, Nauru has always been an Aussie-run operation.

 

No one would have cared (other than the Nauruans, who weren’t consulted) had it not been for the fact that this tiny dot (just 21 square kilometres!) on the equator had, over thousands of years, accumulated hundreds-of-thousands of tons of top-quality bird shit.

 

Nauru’s phosphate deposits were among the purest in the world, a fact which conferred upon the hapless island territory the dangerous status of “strategic possession”. Ruthlessly extracted for use as fertiliser, Nauru’s phosphate deposits would, between 1920 and 1980, transform New Zealand’s farms into some of the most productive agricultural units on earth.

 

The Nauruans were not permitted to get their hands on this crucial resource until the late 1960s. For a few fat years the newly independent republic of Nauru waxed affluent on its rapidly dwindling guano deposits. Briefly, its citizens enjoyed one of the highest per capita incomes on earth. And then, suddenly, it was gone. Leaving Nauru as little more than, in David Lange’s memorable phrase: “a clapped-out quarry”.

 

What was Nauru to do? In 1991 it had $1.5 billion in its Nauru Phosphate Royalties Trust – a not insignificant capital base for 10,000 citizens looking for a fresh start. Tragically, by 2001, corruption and mismanagement had reduced the Trust’s resources to barely $100 million. With its levels of expenditure now well in excess of its income, Nauru was broke.

 

And then along came the Tampa and its hundreds of rescued asylum seekers. Little Johnny Howard responded by unconscionably exploiting Australia’s most visceral racist impulses. That created an urgent political need to get the whole festering problem off Australian soil. What Howard and his Liberal Party were looking for was a nation state that was not only willing to “accommodate” Australia’s unwanted asylum-seekers, but to also put a dampener on the enthusiasm of interfering human-rights lawyers, UN rapporteurs, and investigative journalists. Thus was born the “Pacific Solution”.

 

The detention of the Tampa refugees was arranged with indecent haste, but the transformation of Nauru into an hermetically-sealed island of unaccountable state power was bound to take a little longer. Nauru had a perfectly serviceable democratic constitution. It belonged to the Commonwealth and was a member of the Pacific Forum. It had a respectable and responsible judiciary made up of (mostly) Australian judges. Its small, Australian-trained, police force was reasonably competent and honest. On the debit side, the country was broke, and just about everybody lucky enough to have a job worked for the Nauruan government. Politics and public administration was the country’s Achilles’ Heel. To corrupt Nauru, all Howard (or any other Australian prime minister) needed was a fistful of aid dollars – and 10 of its 19 MPs.

 

It has taken 14 years, off and on, but the poison is clearly working. Nauru’s decision to host Australia’s concentration camps for asylum seekers has eroded every constitutional check and balance essential to the survival of democratic institutions.

 

The first casualty was the Nauruan judiciary. In January 2014 the Chief Justice of Nauru, Geoffrey Eames, was expelled from the country, along with the Australian magistrate, Peter Law. With them went the rule of law in the tiny republic. The administration of justice is now in the hands of persons answerable only to the politicians. Opponents of the Government can no longer rely on the courts for protection.

 

The police force, too, has fallen under political control. Its inevitable involvement in the oppression of the asylum seekers has fatally compromised its personnel as impartial enforcers of the law. The Nauruan Police have abandoned their role as the the citizens’ protectors to become the Government’s enforcers. In collusion with the private security personnel responsible for keeping “order” at the refugee detention centres, police officers are increasingly regarded as people to be feared; thugs who can break the law with impunity.

 

The reason so little news of these derelictions filters out of Nauru is due to the ruthless censorship applied by the state-owned and operated television and radio stations. Attempting to report such matters would instantly cost any local journalist his or her job. It’s no easier for foreign journalists. President Baron Waqa and his Cabinet have imposed a mandatory, non-refundable $8,000 “bond” on every journalist attempting to enter the country. If that doesn’t dampen their enthusiasm, the Nauruan immigration authorities can always arrange for them to be put on the next plane to Sydney or Auckland. Oh, and just in case young Nauruans might feel tempted to organise and communicate through social media, the Government has shut down Facebook.

 

Not surprisingly, with the Judiciary subverted, the Police corrupted and the news media gagged, Baron Waqa and his allies decided in June of last year that it was time to put the finishing touches to their 21 square kilometre dictatorship. This involved the suspension of all those members of the Nauruan parliament who refused to go along with Waqa’s increasingly lawless regime.

 

Last week, several hundred Nauruans, led by one of the suspended MPs, Matthew Batsiua, attempted to protest the Waqa Government’s ever more draconian attempts to shut down free speech and the Internet. As they approached Parliament House, the Nauruan Police (aided by security officers from the camps) waded into the crowd and a number of protesters were hurt. Batsiua, along with the opposition MPs Sprent Dabwido (a former President of Nauru) and Squire Jeremiah were later arrested and remain in custody. Another opposition MP, Roland Kun, was physically hauled off a plane due to depart for Wellington and has had his passport cancelled. The Waqa regime is apparently concerned that he will inform the outside world about what is happening in Nauru.

 

The silence of the Australian Government in the face of this “Lord of the Flies” descent into lawlessness and brutality is readily understood. Prime Minister Tony Abbott needs the Pacific Solution and he is fully aware that it cannot be made to work in a democratic country where the rule of law holds sway.

 

More difficult to understand, and harder to forgive, is the silence of our own government. The Nauruans and their phosphate may have made New Zealand rich, but that does not appear to have inspired a reciprocal determination on our part to keep them free.

 

This essay was originally posted on The Daily Blog of Thursday, 25 June 2015.