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.

Not Taking Green Principles As Red.

Surely Not! Can it be possible that at least two of the Green Party's core principles - "Social Responsibility" and "Appropriate Decision-making" - could push it out of the Red and into the Blue? The Greens' long-standing opposition to so-called "waka-jumping" legislation aligns them more with National's belief in individualism than it does with Labour's historical commitment to caucus collective responsibility. It's a strange and contradictory position - especially for the party that fought so hard for proportional representation.

IS IT POSSIBLE to reconcile the Green Party’s long-standing opposition to “waka-jumping” legislation, with its constitutional commitment to “appropriate decision-making”? No other political party has a more consistent record of support for proportional representation. It is, therefore, perplexing to hear Greens argue for the right of individual MPs to undermine their own party’s decision-making power in the House. In an electoral system which allocates parliamentary seats according to a party’s share of the popular vote, how can compromising the proportionality principle ever be considered “appropriate”? Surely, under MMP, it must rank as the cardinal political sin?

That the Greens do not consider voting against the wishes of their own party to be a sin leads us back ineluctably to that wonderfully weaselish word “appropriate”. Why does the word even feature in the party’s four core constitutional principles? (Ecological Wisdom. Social Responsibility. Appropriate Decision-making. Nonviolence.) Surely, the party’s third core value should read Democratic decision-making?

The explanatory sentence accompanying the Green’s third core value only makes its meaning murkier. It reads: “For the implementation of ecological wisdom and social responsibility, decisions will be made directly at the appropriate level by those affected.”

Now, as I understand the rules of philosophical discourse, it is unacceptable to define a thing simply by referring to the thing itself. As in: a cat is an entity possessing cat-like qualities. Accordingly, it is extremely cheeky of the Greens to define “appropriate decision-making” as, in effect, decision-making which is made appropriately. Officially, this form of rhetorical evasion is known as “tautology”.

What, then, are the Greens seeking to evade by using the word “appropriate”?

Well, for a start, they’re evading the ideological obligations imposed upon the international Green movement by the Global Green Charter. The Global Green Charter lists the core Green values as: Ecological Wisdom. Social Justice. Participatory Democracy. Nonviolence. Sustainability. Respect for Diversity. These core values differ significantly from those listed in the New Zealand Green Party’s charter.

Participatory Democracy, for example, is a concept with a long and illustrious political pedigree extending all the way back to the “Port Huron Statement” issued in 1962 by the radical American youth organisation called Students for a Democratic Society. The substitution of the bland verbal formulation “appropriate decision-making” speaks volumes about the willingness of the New Zealand Greens to put their money where their mouths are. (Their craven substitution of “social responsibility” for “social justice” speaks a whole additional library of volumes!)

That the NZ Greens are unwilling to commit themselves to the principle of participatory democracy is highly significant in relation to at least some of their MPs openly equivocal stance on the Waka-Jumping Bill currently before the House. It signifies what can only be described as an ultra-individualistic approach to the vexed question of when, if ever, it is permissible to step away from decisions arrived-at collectively.

To hear some Greens tell it, the answer appears to be: “Whenever an individual Green MP feels like it.”

Some of these critics have justified their stance by citing the former Green MP, Sue Bradford’s, scathing denunciation of previous waka-jumping legislation. Unfortunately, this merely draws attention to Ms Bradford’s propensity to set a much higher value upon her personal political judgement than upon the collective judgements of her comrades. An old-fashioned Marxist-Leninist might condemn such behaviour as “petit-bourgeois individualism”; the Greens, bless them, are considerably less censorious.

This Green tolerance of dissent may, however, come back to bite them. The present, Labour-led government’s political survival is entirely dependent on the preparedness of the Green Party caucus to remain true to the undertakings given to Jacinda Ardern and her team of negotiators following last year’s general election. Among those undertakings was Green Party leader, James Shaw’s, commitment to facilitate the passage of the waka-jumping legislation demanded by NZ First. The slightest suggestion that Shaw may no longer be in a position to deliver on the deal will arouse serious misgivings not only in NZ First, but also in Labour. The mutual trust upon which the Labour-NZF-Green Government depends will be severely tested.

For the National Party, the Greens apparent willingness to put the rights of the individual ahead of the expectations of the group will be good news indeed. Simon Bridges can draw considerable comfort from the clear evidence that, in spite of the widely held view that they are more socialist than environmentalist, the New Zealand Greens are actually well to the right of their overseas counterparts.

Far from exhorting members to become “Social Justice Warriors”, the Green Party constitution calls upon them to demonstrate “social responsibility”. The New Left doctrine of “participatory democracy” is, likewise, deemed inappropriate. What’s more, in the finest National Party tradition, Green MPs are insisting that if their conscience requires it, then they must have the right to both abandon their party’s waka – and remain in Parliament.

A version of this essay was published in The Press of Tuesday, 13 March 2018.

"The Most" versus "The Majority"

Out Of Many, One: The key constitutional requirement for the exercise of executive power in New Zealand is the confidence of a working majority of members of the House of Representatives. To suggest that the party which received the most votes cast must be a part of that working majority is both unconstitutional and undemocratic.

THE SEMANTIC DIFFERENCE between “the most votes” and “a majority of the votes” is about to become extremely important. Why? Because, constitutionally-speaking, winning more votes than any other party is nowhere near as important as winning more than half the votes cast and/or controlling more than half of the seats in Parliament.

It is, for example, quite possible for a party to hold the largest number of seats in the House of Representatives and yet find itself relegated to the Opposition benches by a combination of parties commanding a majority of the seats. This is because, under our constitution the Government must retain the confidence of the House to go on governing. The Parliamentary Opposition can test this with a motion of No-Confidence, which, to be carried, must be supported by more than half of the participating Members of Parliament.

That even the slightest confusion over “most” and “majority” continues to exist is one of the most pernicious legacies of the First-Past-the-Post (FPP) electoral system.

In order for FPP to produce a majoritarian outcome the electorate must be restricted to a choice of just two parties. If there are only two candidates contesting each electorate then the winner will attract not only the most votes but also a majority of the votes. FPP elections are contested electorate by electorate and the party accumulating more than half of the parliamentary seats is declared the winner and invited to form a government.

In its whole political history, New Zealand fulfilled this requirement for just eighteen years. From 1936 until 1954 our electoral landscape was dominated by two mass parties: Labour and National. No other political organisations came anywhere near them in terms of voter support. As a result, it was not unusual for the winning party to attract more than 50 percent of the popular vote. In the snap-election of 1951, for example, held in the wake of the infamous 1951 Waterfront Dispute, National received 54 percent of the votes cast.

In 1954, however, the Social Credit Political League brought New Zealand’s pure two-party system to an abrupt end. For the first time in our history, the monetary reformers of Douglas Social Credit fielded candidates in a General Election, attracting a very creditable 11.2 percent of the votes cast. Under our current MMP electoral system the Social Creditors would have been entitled to proportional representation, but in 1954 Social Credit failed to win a single seat and it was National, with just 44.3 percent of the popular vote (a whole 0.2 percentage points ahead of Labour) which ended up forming a government.

And so it continued for the next 42 years. Though the Social-Creditors’ support rose as high as 20.6 percent of the popular vote, it never won more than 2 parliamentary seats. More importantly, neither Labour nor National was ever again sufficiently popular to win more than half of the votes cast. In 1978 and 1981, not even winning the most votes was enough to make you the Government. In both of those elections National secured a parliamentary majority with fewer votes than Labour.

It was in this grossly inequitable FPP context of parties winning less than half of the votes cast but securing well in excess of half the parliamentary seats that the voting public’s propensity to confuse “winning the most votes” with “winning a majority of the votes cast” began to take hold. The semantic confusion was in no way lessened when, in the General Election of 1993, the Alliance Leader, Jim Anderton, pledged his support to the party which won the most votes. Fortunately for Mr Anderton, he was never obliged to keep his promise. But, if he had, it would have seen the left-leaning Alliance backing an incumbent National Government which 62 percent of the electorate (including his own followers) had failed to endorse.

The confusion was exacerbated three years later in the first General Election conducted under the new MMP voting system. In spite of the fact that 66 percent of the electorate (including his own followers) had declined to endorse the incumbent National-led Government, the NZ First Leader, Winston Peters threw his support behind the party with the most (33.8 percent!) votes.

With the 2011 General Election less than a fortnight away, alarm is already being raised at the prospect of any party other than the party winning the most votes being allowed to form a government. Already, any combination of parties commanding a majority of parliamentary seats – but excluding the party with the most seats – is being derided as a “Coalition of Losers”. Already, conservative commentators are issuing thinly-veiled threats that such a government would face mass protest action.

Decent New Zealanders will reject such threats. Those making them are behaving undemocratically and unconstitutionally.

If 51 percent doesn’t beat 49 percent – then what does?

This essay was originally published in The Press of Tuesday, 15 November 2011.