In January 2013 I was asked by the secretariat of the Government Constitutional Advisory Panel to take part in audio and video taped interviews. The invitation was probably issued on the basis that I have written extensively about Treaty issues and that I am a member of the Independent Constitutional Review Panel that has its presence on this NZCPR website. I wish to share these interviews with NZCPR readers and raise troubling issues that emerged for me while doing the interviews. One issue is about the difference between “proving information” and seeking New Zealanders’ views. The second issue concerns the assumptions that the Government’s Panel works from.
According to the terms of reference the Advisory Panel’s primary task is “to stimulate public debate and awareness of constitutional issues by providing information about New Zealand’s constitutional arrangements”.While I was happy to have my views recorded in that forum I was puzzled why the Advisory Panel has been so slow in calling for submissions so that all of us can present our viewpoints. (In fact, the Panel has only this week begun the submission process.) It seems to me that the Advisory Panel’s task to “provide information about New Zealand’s Constitutional Arrangements” doesn’t square with the usual practice of seeking submissions from the people on issues of national significance that concern us all. Providing information and collecting views serve quite different purposes.
Calling for submissions is the usual practice when the government wants to know what the people think. Providing information occurs when the government wants to tell us what to think. Making submissions is an extremely important democratic act. We, as citizens, don’t need to wait to be asked. We don’t need to be given the information by a government panel or to be considered ‘experts’. As citizens, we have formed our own opinions and wish to make those known. Making submissions is the time-honoured way to do this. It is citizenship in action.
The balance between government and citizen is part of our constitution. (I discuss the importance of citizenship below in my response to the first question of my Panel interview.) It is a delicate balance that contains within it part of the wider process through which citizens contribute to politics and through which governments are made accountable to the people. We elect our fellow citizens to represent us but we don’t leave them to it. There are a number of ways by which we keep our representatives in tune with the people to ensure on-going accountability. One of these is the submission. How else can your voice be included? The Panel that I belong to is so concerned about the preference for consultation over submissions by the Government Advisory Panel that we have decided to take submissions ourselves. My advice to to send your submission to both panels: to the Government Constitutional Advisory Panel and to our Independent Constitutional Review Panel. Our Independent Panel will ensure that your submission is noted in our final report. We are committed to the integrity of the submission process and believe that the Government’s Advisory Panel is comprised by the confusion in its terms of reference resulting from “providing information” and its preference for consultation.
I was also concerned about the type of questions asked by the Government Panel’s interviewer. When we present our own submission on a particular issue we are able to say what we want to say. Responding to specific questions as I did for the Government Panel’s interview controlled my responses to match the type of questions asked. This was not a problem for four of the six questions but it was for questions two and three. Both asked about Maori representation in government practice. This implies that such practice is normal and part of government operation. That reinforced the incorrect view that Maori representation through the vehicle of the Treaty principles is already included in our constitutional arrangements. You will note in my responses to Questions Two and Three below that I get around this problem by addressing the assumptions behind the questions not the questions themselves.
I gave a lengthy response to the first question which asked “how I would best explain or describe New Zealand’s constitution to people who don’t know much about it”.
Here is the full response which was later expanded into the published article ‘Tribalism and Democracy are Incompatible’. My answer reads: “The constitution is how we arrange the way authority works in New Zealand; who is in charge and to whom they are accountable. It is how politics is organised and what sort of institutions and systems we have to control the use of power and authority. New Zealand is a democracy.
There are three elements to democracy: the nation, the state, and the citizen. The nation is the overallframework and idea we have of ourselves. The state is parliament and all the institutions and systems of government. Citizens are the subjects of the nation-state and hold it accountable. These three elements are held together by the principles of universalism, equality, and freedom. Universalism is the base. It is the commitment to the belief that the human being is the political subject. This means that a person is regarded as human before he or she is seen as a member of a race, religion or other type of social group. Universalism is the basis of democracy because it justifies the equal status of the citizen and our ‘human rights’.
My first important point is that the political status of citizenship is different from cultural/race identity. This means that political status, that is, citizenship, is part of the constitution but race/cultural/ religious identity is not. Take the example of religion. Many New Zealanders have a religion but their religious identity is not part of the political arrangements. Your religious status is not your political status. Religion is kept out of politics. Race and culture are like religion – it is an identity but not a political status.
Race/ cultural identity cannot be included as a political status in a constitution. What a constitution can include, and New Zealand’s one already does, is the right that each individual has to practise his or her cultural identity. This right is enshrined in legislation which says that a person cannot be discriminated against on the basis of race, religion, cultural affiliation and so on. That right can only exist because of our equal status as citizens, a status that comes from the universalist principle that we are all equal as human beings.”
In summing up this point I noted that citizenship is at the basis of our freedom and an essential part of a democratic constitution.
My second important point to Question One concerned the nature of tribalism as a political system. I described tribalism as a pre-modern system that is anti-democratic saying how the history of the world is the move from tribalism to democracy. This occurred because tribalism is based on principles of inequality. In tribal organisations a person’s political status comes from the status of his or her ancestors. In addition tribalism is unable to include newcomers. There are many New Zealand families with members who are Maori and members who are non-Maori. The latter can never be a full member of the tribe. This divides families as well as dividing the wider NZ society on the basis of race. Race (genetic heritage), not universalism, is the basic principle of tribal organisation.
For these two reasons: the fundamental difference between the political status of citizenship and the fundamental nature of tribalism as an unequal, exclusive system, the Treaty of Waitangi must not be included in New Zealand’s constitution. Including the Treaty in a constitution would divide us into two peoples, one of whose political status comes from genetic heritage or race and the other whose political status is citizenship. It would bring into the constitution an anti-democratic political system – the tribe/iwi. Tribalism/iwi and democracy are fundamentally incompatible.
The second question put to me by the Panel’s interviewer asked how Maori representation impacted on my work/community/all New Zealanders. I didn’t answer this question directly because I objected to the assumption that such representation was normal with the question being interested only in how that representation was experienced. My objection is to such representation in the first place.
My response was this: “The increasing practice of including Maori representation in our institutions such as education is based on a wrong idea, cannot be justified and such race-based representation must be removed. The wrong idea, developed as recently as the late 1980s, is that the Treaty is New Zealand’s founding document and is a partnership with principles. Treaty ‘partnership’ is illogical. Parliament is sovereign not two Treaty ‘partners’. There can’t be two ‘sovereigns’. It is Parliament that makes the laws and exercises authority on behalf of all New Zealand citizens to whom it is accountable. If it were true that there was a Treaty ‘partnership’ then iwi would be sovereign alongside Parliament. This is nonsensical.”
The third question asked for an example of how our constitutional arrangements in the context of Maori representation at both a government and local government level works in practice. Once again I objected to the assumption that Maori representation is already operating within our constitutional arrangements. My answer was to object to what I referred to as an “unjustificable creeping inclusion”.
I said: “The idea of the so-called Treaty partnership has been placed into our insitututions and practices despite it being anti-democratic and hence unjustifiable and impracticable. It is the result of the huge influence of a small group of powerful biculturalists and iwi lobbyists but it is opposed by most New Zealanders. The Government Constutitional Advisory Panel is a good example of this creeping inclusion. 50 percent of its members were chosen because of their race. That is confusing political status with identity – the point I make above. The latest Maori representation strategy is ‘co-governance’. An example is the proposed co-governance of the Hauraki Gulf with 50 percent Maori and 50 percent representation from all the other groups with an interest in the Hauraki Gulf. This is very very serious. It gives one race-based group unaccountable power and takes away the justified and accountable power from the others.
The fourth question asked “Why should New Zealanders participate in the
constitution conversation?” Here is my response in full “Because retribalists and biculturalists are campaigning to have the Treaty included in a constitution. This must not happen if we are to remain a democratic nation. New Zealanders must stop the inclusion of the Treaty in our Constitution. The Independent Constitutional Review Panel that I belong to and refer to above includes members from across the political spectrum. We are currently promoting the ‘Declaration of Equality’ to oppose the Government’s Constitutional Advisory Panel. 38,000 New Zealanders have already signed the Declaration. We are also calling for our own submissions because we regard the Government’s Advisory Panel as compromised by Treaty politics. Its 50/50 race-based membership makes that clear. Our concern is that the Government Panel has the funding and resources to promote its agenda for the inclusion of the Treaty in a constitution. A group such as ours has few resources in comparison.”
Question five asked What are your aspirations for the future of Aotearoa New Zealand? My reply: “For our democratic institutions to be strengthened. I would like to see greater equality and social justice for all New Zealanders. This does not come from recognising race. Biculturalists got it wrong. Many believed that biculturalism would lead to social justice for Maori but this has not happened. Social equality comes from political arrangements to do with employment then with politics concerned with housing, health, and education. All New Zealanders should benefit from such policies. In education I would like to see a move away from cultural based education for Maori to a system that promotes higher order knowledge for everyone.”
I was pleased to have the opportunity to answer the sixth question in considerable detail. Here I was asked “How would you like our country to be run in the future? (what principles/elements are important to you about our constitution?)”.
“I would like to see all three elements of our democracy strengthened. These elements are the nation, the government, and the citizen.
The way to do this is by:
1. Ensuring that Parliament is supreme.
2. Separating the political category of citizen from cultural/race identity so that the political category is citizenship – available to all people.
3. Ensuring that judges or powerful lobby groups such as the biculturalists and the iwi elite are under Parliament’s supremacy.
4. Moving the practice of culture out of government institutions to the wider society.
5. Maintaining an unwritten constitution because a written constitution would lock us into a certain time and we would lose the benefits of being able to be flexible as times change. That flexibility must of course be constrained by democratic principles and systems therefore it cannot include the Treaty.
6. Removing all aspects of race from our institutions, such as education, health, social services, corrections and so on. This means removing all references to the principles of the Treaty from legislation.
7. Abolishing the Maori parliamentary seats.
8. Funding research that critiques the historical revisionism of the bicultural period so that NZ’s history is studied according to sound research methods and not in the interests of Treaty politics as is currently the case with much Waitangi Tribunal research.”