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David Round

David Round

A Slippery Slope to Ruin

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For some years I taught constitutional law at the University of Canterbury. I was also a debater, in those days when debating was a more popular activity than it is now ~ and it would happen, from time to time, when I appeared to speak in a debate, that the chairman, in introducing me, would tell the audience that I was a remarkable man, because (among other things) I lectured in constitutional law, and this in a country that did not possess a constitution! I would smile politely at this merry jest and pass on to the subject of my discourse.

But now I shall explain. New Zealand may not possess a single grand document like the document ~ actually the collection of documents ~ which the United States has, for example, and which can be pointed to and read as ‘the Constitution’. But of course we have a constitution. Every organised state has one, and simply has to have one. Every incorporated society has one, and has to have one. Every group, incorporated or not, every sports club and trust and residents’ association ~ every organisation has a constitution, and has to have one. That is what ‘organisation’ means. A constitution is simply the collection of rules by which a group is organised ~ the way in which it is constituted or made up. That is all. New Zealand’s constitution is the body of rules which describe and prescribe how we run our affairs ~ how laws and executive decisions are made, how we are taxed and how taxes are spent, how we decide disputes, how we select and replace the people who do these things, and so on. In New Zealand, as in England, there is no one document that can be pointed to as ‘the constitution’, but that does not mean we do not have one. We cannot, unlike many other countries, draw a precise line between what is ‘constitutional law’ and what is just ordinary law ~ those laws which we think of as typically ‘constitutional’ are to be found in all sorts of places ~ but of course we have a constitution. If we did not, we would not have an organised society.

Sometimes people speak of ‘written’ constitutions (the United States sort) and ‘unwritten’ constitutions, such as our own. But this is a little misleading, because all our constitutional law is certain, and it is all written down somewhere. It may not be on one single piece of paper, but it is still written. It is to be found in Acts of Parliament, in the principles of the common law as declared over the centuries by judges, in the royal prerogative (part of the common law) and in the ‘conventions’ ~ the ‘agreed understandings’ of what is to be done. We do now have the rudimentary beginnings of a written constitution, however ~ in 1986, prompted by Mr (now Sir) Geoffrey Palmer, our Parliament made the Constitution Act, which collects together a number of very basic provisions. It is not controversial ~ it merely speaks of the Sovereign, the exercise of the royal prerogative by the Governor-General, Ministers of the Crown and Parliamentary under-secretaries, the House of Representatives and the Speaker, the full power of Parliament to make laws, the protection of judges from removal from office, and such like. In 1990 Parliament also made the New Zealand Bill of Rights Act ~ a somewhat stupid name, for reasons which, forgive me, I do not have time to explain at this very moment ~ which states certain rights which we all have, ‘subject to such limits as are justified in a free and democratic society’. But neither of those Acts of Parliament is a ‘higher law’. In the United States of America, as we are all aware, the Constitution is a higher law. It is ‘entrenched’ ~ that is to say, it cannot be altered as other laws are altered, but only in a special and complex and difficult way. And it is also the supreme law against which all other laws are to be judged and, if necessary, found wanting. The American courts have the power to declare laws invalid if they conflict with the constitution ~ if they conflict, to put it more accurately, with the judges’ interpretation of what those eighteenth century documents prescribe. And judgments, therefore ~ especially of the higher courts, especially the Supreme Court ~ can often take on a highly political quality. The authors of the Constitution nowhere mention, and never thought about, issues such as abortion, racial segregation and affirmative action, gay rights or donations to political candidates and parties. Such issues are, in any case, political and moral and philosophical issues, where judges have absolutely no special expertise qualifying them to make better decisions than anyone else. When judges decide arguments over fierce modern issues matters according to the words or intention of the constitution, they are in fact free to make law. This is why there is such great interest in the membership of the Supreme Court, and in its decisions ~ because many decisions are not narrowly ‘legal’ decisions, as we might think, but very political ones. It is for this reason also that nominees to the United States Supreme Court must undergo an examination by a committee of the Senate. When judges are able to some considerable extent to act as politicians, it is only reasonable that they be examined as to their political alignments as well as their more strictly judicial record.

Now by this point I am beginning to get ahead of myself, and so I must take a breath and tell you where I am going. At the end of last year the Deputy Prime Minister, Mr Bill English, and the Minister of Maori Affairs, Dr Peter Sharples, announced a far-reaching review of New Zealand’s constitutional arrangements. I would not blame you if the announcement ~ and a later announcement, just a month ago, of the membership of the ‘Independent Advisory Panel’ ~ had slipped under your radar. I do not recall much, if any, publicity at the time. (Indeed, at morning tea this very week I mentioned the review to several of my colleagues in the Law School, and a couple of them had not heard of it either.) The review is, fortunately, to be a reasonably leisurely one ~ the advisory panel’s final report is only due in September 2013, and final decisions will be made thereafter by Parliament ~ and so there will be plenty of time for us to think about the issues and make our views known. It is absolutely vital that we do. The issue of our constitutional arrangements is more important than anything else that we have argued about over the last twenty years. It is more important than any Treaty settlement, more important than the foreshore and seabed or the United Nations Declaration on the Rights of Indigenous Peoples, more important than anything. Constitutions deal with power, with who exercises it and according to what rules. Everything that has been done in the last twenty years by way of dealing with Maori issues has been done according to the constitutional rules we have grown up with, absorbed with our mothers’ milk and know without even thinking about. The results, we might say, have been bad enough. But if our constitution is changed, then decisions will be made in different ways in future, and by different people. Past decisions may certainly be less than satisfactory, but that is our fault, for not having been firm enough ~ but past decisions will be nothing compared with future decisions which will be made under much more Maori influence. The almost inevitable consequence of any changes made by this review will be a transfer of power from those who have it now to other people. That will mean, in fact, a change from our present equality to a regime of inequality. (Bear in mind, also, that once these particular constitutional changes are made, it will be easier for the newly-empowered to push through further changes in future.)

At present, ultimately, power rests with the people, and all the people enjoy equal political rights. Parliament is supreme, and we elect parliaments. ‘The English constitution,’ a nineteenth century Englishman said, ‘is a majority of one in the House of Commons’. With that majority ~ and we have only one house in this country ~ a parliament can make any laws it pleases, and support any Ministry it pleases. Occasionally, certainly, some people worry about this, and wonder if there should not be ‘safeguards’ of some sort to prevent parliaments from being too hasty or dictatorial. In principle there is something to be said for this, although the need has not been as pressing since MMP was introduced. But in our present situation, the remedy will be worse than the disease.

And what is our present situation? Well, we know it only too well, but let me remind you. This review was promised to the Maori Party by the National Party as part of its coalition deal after the 2008 election. It is not prompted by any failings in our constitution (other than some perceived failing to give Maori more power than they possess now). It is prompted entirely by Maori ambitions, and Maori are already preparing their complaints and demands for new constitutional forms. What is more, the terms of reference of the Independent Advisory Panel are already declared to be to ‘seek the views of all New Zealanders …in ways that reflect the Treaty relationship’ and ‘in ways that reflect the partnership model and are responsive to Maori consultation preferences’. One might almost conclude that the Panel’s conclusions are already to be found in its instructions.

The Panel is of a remarkable racial composition. Its co-chairs are the respected former professor of law (and my old colleague) John Burrows, now a Law Commissioner, and Sir Tipene O’Regan. It has five European members, five Maori members, one New Zealander of Pacific Island extraction and one of Asian descent. Among the five Maori members are Professor Ranginui Walker, known to readers of this column, and certainly someone who will be very vigorously pursuing privileges for members of one of his ancestral races. I am afraid to say that several of the Panel’s other Maori members seem to my perhaps jaundiced eye to be capable, at least, of being readier to pursue selfish racial interests than the common good. Forgive my presumption. Certainly, many of the people appearing before the Panel will be pressing for racial privilege in a new constitution. I do not envy John Burrows his task.

Our present situation is such, then, that unless poor old longsuffering New Zealanders kick up the most IMMENSE stink, the almost inevitable direction of any proposed constitutional change will be towards further racial division and Maori privilege. And once such privilege is in place, then our continued racial division, and our poverty and accelerated decline as a nation, is inevitable.

Once power is transferred from those who have it at present, the newly powerful will not give it back. If our constitution is altered in the way in which it looks as though it may well be altered ~ that is to say, to give more power to one particular racial minority, and (by a written constitution, which will thereafter have to be interpreted by judges) to give power to unelected and unaccountable supporters of the Maori cause in the higher judiciary ~ then we are on an irrevocable slippery slope to ruin. I mean this seriously. If what the Maori Party and its friends desire by way of constitutional change comes to pass, then this once lovely little country of ours will be irrevocably stuffed. More things will happen, of the sort that we have deplored over the last twenty years, and worse, and we will have less and less ability than we seem to have even now to stop them. Yes, it does seem strange that ‘reform’ should lead to a loss of power by the people, but that is what will inevitably happen. Our laws now recognise the equality of all citizens. Let me repeat, the forthcoming constitutional review is not prompted by any failure of our constitution, which is working perfectly well, and without any problems at all. (The only possible exception to that remark might be in relation to our voting system, where some might wish to replace the present MMP system with either the former first-past-the-post system or some entirely new one ~ but voting systems are not a part of the review, being dealt with by a referendum at the time of this year’s general election and possibly another referendum later.) This review has been established, not because of any failure in our constitution, but simply because the National Party promised it to the Maori Party. It is entirely prompted by Maori demands ~ it has no other justification. Maori are already starting to agitate, to demand the ‘justice’ which our present constitutional arrangements evidently deny them. They seek greater power. They will not exercise it for the common good, but in their own interests. National’s behaviour over the foreshore and seabed provides abundant evidence that the Party’s senior figures are perfectly ready to sell their own fellow-citizens down the river for the sake of their own short-term political advantage. They did it then, and there is no obvious reason why they will not do it again. Any change in our constitutional arrangements to grant more rights to Maori must inevitable be a change away from our present equality, and that must mean, inevitably, a change towards inequality. As Maori obtain more rights, so the rest of us must lose some.

Nor must you imagine that such changes will be opposed by many enlightened liberal defenders of the human spirit. For a generation, at least, much of New Zealand’s liberal ‘intelligentsia’ has been profoundly illiberal. Democracy is very much yesterday’s idea. The majority of the people are ~ so ordinary, my dear ~ simply so unexciting~ so dull ~ so worthy of nothing more than being completely ignored, while we pursue the latest new fashions in ethnic and multicultural chic. Darling, David Round is just so mediaeval. I have given many examples in the past in these columns of the way in which our reasonable and widely-shared views are instantly dismissed out of hand by the enlightened as not worthy of a second’s consideration, and I see no reason why their attitudes should not continue. No ~ I doubt that we will get much help from our intellectual leaders, who on the whole think that the Treaty is just a simply marvellous idea. We are on our own.

But there is hope, although, like the cavalry, it may arrive only at the eleventh hour. For most of our history, certainly, until liberty and democracy were achieved, and until we could therefore take them for granted and be anaesthetised by home comforts and tawdry luxuries, our constitution has been a matter of burning concern. Constitutional development has indeed been one of the great themes of English history. From Magna Carta’s sturdy assertion of established rights against the encroachments of bad King John, through the tumults of the Middle Ages, the despotism of the Tudors, the great resistance of the seventeenth century (when the people sent one king to the scaffold and another to end his days in gloomy exile in France) ~ through all of this to the gradual establishment of Ministerial responsibility and parliamentary government under the Hanoverians and a constitutional monarchy under Victoria, the great concern of the Crown’s free subjects was the assertion and maintenance of their ancient liberties. This is why our hearts beat faster at the mention of those heroic days and deeds and documents. Our hearts stir at the assertion of liberty in the American Declaration of Independence, and in the lesser-known but magnificent Declaration of Arbroath whereby the Scots, fighting against the English Edward, declared that ‘it is in truth not for glory, nor riches, nor honour that we are fighting but for freedom ~ for that alone, which no honest man gives up but with his life itself’.

‘Freedom’! Think of that! Freedom! What might that be now, exactly?

Set against that magnificent background, this present review seems to be an utter betrayal of the human spirit. Its instigators’ purpose is not freedom, not the greater good ~ not even the shallow lure of economic prosperity, not that that isn’t handy ~ but special ‘rights’ for a racial minority. Their purpose is to bind the non-Maori population of this country hand and foot and turn them over to a racist constitutional regime in which they have far more power than they deserve. Apartheid as improvement. We would laugh out loud at the suggestion that granting more power to farmers, say, or manufacturers, or trade unions or the poor or the elderly, would lead to anything but their stronger pursuing of their own interests ~ yet somehow our rulers manage to suspend disbelief and assume that the inevitable consequence of enlarging Maori influence on our constitution will be the greater good. Equally bizarrely, they seem to think that we will not notice that such ideas are not consistent with our own understanding of our ancient rights and liberties.

The conclusion I am forced to, then, is that whatever the outcome of this review, it will only engender further bitterness and division. If Maori get what they want, then we shall be angry in future for ever. If they do not get what they want ~ if we manage to hold the line ~ well, that will be good, but they will be disappointed, and they will be angry forever in future, because they will consider themselves deprived of what they are (somehow) entitled to. And absolutely everyone will of course have become agitated and concerned during the debate. The entire exercise seems to me to be doomed to an unfortunate outcome, regardless of what precisely happens.)

Doubtless different Maori will come up with different suggestions as to how New Zealanders’ alleged obligations under the Treaty might be implemented. In recent years some have suggested a separate Maori House of Parliament, whose consent would be necessary to laws. Such a proposal would mean that the vote of a European New Zealander would not be worth as much as that of a Maori ~ for the 15% or so of the Maori population would have as much say as the 85% non-Maori. It would also be a guarantee of blackmail demands for ever. It would also mean, of course, a thorough racial classification of everyone in the country to ascertain whom they should be voting for and what their rights were. And then here we’d be, back in Nazi Germany.

(Some elections ago, by the way, the Green Party had a policy of separate and equal Maori and European Houses of Parliament. Perhaps they will tell us if they still have that policy, but they certainly used to.)

Possibly likelier, but equally disastrous, would be the elevation of the principles of the Treaty to some form of ‘higher law’. If we were to adopt a written constitution then it would be very surprising indeed if it did not begin with some acknowledgement of the Treaty and its principles, and thereby give judges the opportunity to strike down laws made by Parliament on the ground that they offended against Treaty principles. This is not far-fetched. Our present Chief Justice ~ one Treaty claimant described her at the time of her appointment as Maoridom’s ‘best weapon’, although we would readily concede she is not entirely responsible for what other people say about her ~ has already publicly stated that she considers herself legally entitled to strike down Acts of Parliament right now if they offend against her interpretation of Treaty principles. She has not been the only judge to voice that opinion. This would be the overturning of centuries of absolutely fundamental constitutional law and democratic principle. She considers herself to be entitled to strike down the laws of this country, decided by democratically-elected Parliaments, if she thinks that ‘Treaty principles” justify it. These are the words of a would-be dictator. As I may have said before, for a judge to do that would be as much a coup d’etat as if armed men entered Parliament and drove the Members out at gunpoint. It is as much treason as Guy Fawkes’ plans (worse, in fact, for it seems that he may very possible have been framed!) She has already demonstrated her readiness to overturn long-established law and embark on disgraceful political adventures when she and her fellows in the Court of Appeal made the 2003 Ngati Apa decision on the foreshore and seabed which has already brought so much anger and division to this country and will continue to do so. That decision was a deliberate political choice. If we get a written constitution, however, we will inevitably be handing more power over to its interpreters ~ some of whom will be people like her.

Treaty principles, as I hope I have explained sufficiently in the past, are such vague platitudes, pulling in different directions, that they can be used to justify about any decision any judge might ever want to reach. If we should ever be unlucky enough to have the Treaty or its principles inserted into our constitution as some special standard with which legislation must comply, then judges will forever after be entitled to strike down any law, any decision on the ground that it offended against Treaty ‘principles’. The Maori Council has already argued, for example, that it is a breach of ‘Treaty principles’ if Maori do not receive preferential treatment in the allocation of limited medical services, such as kidney dialysis ~ this because old people (with kidney disease) are ‘taonga’, guaranteed by the Treaty. By the same token, young and middle-aged Maori people are probably taonga also. So if our constitution says that the Treaty and its principles have some special status ~ a reasonable prospect if we get a written constitution ~ and if some judge swallows this argument, also surely a reasonable possibility ~ then hey presto, Maori enjoy better access to health care for ever than anyone else. We pay the taxes, they use the services. And so it could be with any aspect of government. One could easily imagine that a taxation law, say, could be struck down because Maori can’t afford it as much as anyone else, and therefore it’s oppressive ~ or there might be a declaration that Treaty principles require the Maori language to be taught in all schools, or that the whole country be bilingual, or that more money be allocated to Maori television, or Maori education, or that the Department of Conservation give Maori special rights (the judges have begun to head down this track already), or that the Treaty requires that more rateds money be spent in Maori communities, or that they should have 50:50 representation on local bodies….The possibilities are endless. And there are judges who will enjoy nothing more than making lofty holier-than-thou pronouncements of principle with disastrous consequences and then handing it over to others to attempt to clean up the mess. Examples may be found in some decisions on Treaty principles in the last twenty-four years.

In the light of our present political situation, then, I cannot but think that just about any constitutional reform which is likely to ensue from this current review is going to be bad for this country and its people. Our attitude should most certainly be one of caution ~ indeed, of cynicism. My own family has a saying, a famous remark by a great-great uncle of mine ~ also a lawyer, as it happened ~ who used to say, ‘If you trust anyone, you’re simple’. A little cynical, perhaps, but also wise. And this is the principle of all democracy. We won’t trust other people, thank you very much ~ we’ll be in charge ourselves. We won’t hand care for ourselves over to the state, or to another race, or to judges. No thank you. Right now, we’re in charge, and we want things to stay that way.