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Anthony Willy

Sir Geoffrey’s last monument

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It seems to be the season for tinkering with our constitutional arrangements. We have the “The report of Makiki Mai Aotearoa The “independent working group on constitutional transformation” and we have Sir Geoffrey Palmer, and his acolyte’s proposed written constitution for New Zealand. The former is part of the seemingly unending attempts by small and unrepresentative bodies of persons claiming some Maori blood to persuade the general public that the Treaty of Waitangi requires that they should have equal political and constitutional standing along with the other ninety percent of New Zealanders.

The latter purports to be a serious attempt by two authors claiming to be versed in constitutional law and practice to encourage the voting public to sever our ties with the Monarchy and in its place to adopt a written constitution which among other bon bons enshrines the Treaty of Waitangi as New Zealand’s founding constitutional document. This article is concerned with the latter.

  1. Why a written constitution?

The question not confronted in the draft document is why do we need one? Are our present unwritten arrangements broken? Is there some imminent threat to the liberty of the subject which can only be averted by writing down and enacting into law a codification of all of the existing protections which preserve our liberties? Unless I have missed some looming danger of an attack on those guarantees of our way of life which we hold dear, and an imminent failure of the existing arrangements to ward off such an attack the answer is unequivocally “no”. Indeed it is difficult to identify a society which offers more clearly enunciated and readily available protection of its rights and liberties than does New Zealand.

In 1867 Walter Bagehot a respected commentator on the English unwritten Constitution warned of the danger of as he put it: “the limited clauses of an old state paper attempting to provide for all coming cases and seeking to forever regulate the future.” How right he was: The face of British society has changed beyond recognition since the mid Victorian era with for example: Two world wars, a loss of Empire, technological change, the devolution of the Parliaments of Scotland, Northern Ireland and Wales, and massive immigration from countries which know nothing of the Rule of law or democracy, and most recently Brexit. All notwithstanding the uncodified safeguards necessary to protect the liberty of the subject have adapted to the changing face of society and without a written constitution those safe guards are more robust today than at any time in British history. Cleary the organic and uncodified constitutional arrangements which govern the British body politic continue to be fit for purpose whatever challenges are heaped upon them.

Given this effective working model from which all of our constitutional safeguards are drawn what is the point of we in New Zealand freezing our rights privileges and liberties at a moment in our history and leaving it to the vagaries of the parliamentary process or worse the Judiciary to ensure that they adapt to meet inevitably changing circumstances.

  1. Ties with the Monarchy

As to severing our ties with the Monarchy that is a question upon which there is room for debate (mostly on the part of the ill-informed and parish pump view which the “leavers hold of our place in the world) but there is little evidence of any widespread public unease about recognising the Queen of England and her dominions as our head of state. Like other recent well publicised events such pressure as there is for change comes from the intellectual elites and the media who make up such a tiny part of the body politic. The same forces are at work as produced the recent results in Great Britain and The United States; “we the elites, have studied the problem and know best what to do on your behalf so go back to watching your soaps and don’t worry your pretty heads about such matters.” It never occurs to these people that whenever these big questions are put to the general public, collective common sense emerges and the views of the media and the elites (and their hand maidens the pollsters) are roundly rejected. Our tie with the Monarchy is largely symbolic in terms of day to day governance but serves as a link with our rich history and in particular the constitutional safeguards which Sir Geoffrey is so keen to protect. There is also the pomp and circumstance which brightens the lives of so many “ordinary people”; and why not? It is difficult to understand how in any practical way this demeans us as a people or can be said to be out of date in the twenty first century. What does it matter in this age of advanced and instant communication where the sovereign resides so long as the arrangements work in practice and as an added bonus spares us the spectacle of parades of the great and the good, including failed politicians, from becoming our head of state.

In addition the authors don’t appear to recognise the inconsistency in abolishing the Monarch as our head of state on the one hand and enshrining the Treaty of Waitangi in a written constitution on the other.

The document which the authors wish to become the basis of our right to be in New Zealand was a compact between the British monarch and a number of tribal Chiefs who purported to bind the members of their various tribes in exchanging mutual promises. To call it a “treaty” is a misnomer. At international law Treaties can only be made between sovereign states. At the time of the signing of this document there was no recognised sovereign governing the lands of New Zealand. At best therefore the document is little more than an agreement under seal between consenting parties. If the proposed constitution becomes law then one of those parties will cease to have any ability to ensure that the promises binding on it are performed, and in the ordinary way of such contracts when one of the parties ceases to be able to perform the promises the document can have no further effect. Maori interests have long been seized of this inconvenient fact and have for this reason resisted all attempts to replace the British monarch as the sovereign of New Zealand.

  1. Is a written constitution a better guarantee of our liberties?

Once again the answer is a resounding “no!”

Written constitutions are much loved by socialists dictatorships, and their ilk. Cuba which is in the news at present with the death of its communist dictator enacted a written constitution in 1973 which guarantees the freedom and full dignity of men and the enjoyment of their rights without actually saying what those rights are. One wonders why with their dignity and rights fully protected over a million Cubans made the journey through shark infested waters to find safety in Florida.

The constitution of the Peoples Republic of China, makes no pretence of protecting “human rights” It provides that the country it;

“is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants. The socialist system is the basic system of the People’s Republic of China. Sabotage of the socialist system by any organization or individual is prohibited.
(My emphasis)

So much for “sabotaging the socialist system by something as dangerous as free speech and freedom of assembly for those meeting in Tiananmen Square in 1989. And when, unless I have missed something has there been a “democratic election” in China as we understand the notion.

The Russia example is immeasurably worse when it comes to the empty rhetoric of a written constitution. On the 5th December 1936 at the height of the purges and State repression involving the murder, torture, imprisonment and displacement of millions of Russian citizens at the whim of Josef Stalin he personally initiated a written constitution for the peoples of the USSR. This was adopted on the 5 December 1936 at the VIII Extraordinary Congress of Soviets. It provided that:

Russia shall be a democratic federal rule-of-law state with the republican form of government.

And specified

Man, his rights and freedoms shall be the supreme value. It shall be a duty of the state to recognize, respect and protect the rights and liberties of man and citizen.

And guaranteed that:

The referendum and free elections shall be the supreme direct manifestation of the power of the people on the principle of the universal, equal and direct suffrage with voting by secret ballot, the system of organization of the state. Guaranteeing to all citizens: liberty of conscience, the freedom of speech, of the press, of assembly and meetings and equal rights for labor and rest, financial support in the old age and sickness.

And specified that:

The main body of state power in the USSR was now the Supreme Soviet of the USSR elected for 4 years

The referendum and free elections shall be the supreme direct manifestation of the power of the people on the principle of the universal, equal and direct suffrage with voting by secret ballot, the system of organization of the state. Guaranteeing to all citizens: liberty of conscience, the freedom of speech, of the press, of assembly and meetings and equal rights for labor and rest, financial support in the old age and sickness.

For those languishing in the Lubyanka it must have been a comfort while under torture or imprisonment without cause, to know that they had the benefit of a written document which “recognized respected and protected his or her (and there were many women prisoners) rights and liberties.” As for electing the Supreme Soviet, the outcome was known before the “election” was held.

It is of course true that there are examples of written constitutions such as that enacted in Canada in 1982 which do protect the rights liberties and privileges referred to in the document, and most notably the Constitution of the United States of America. But that document was in essence a prescription for a new government independent of the United Kingdom. It became necessary for the House of Representatives to later enact twelve articles protecting fundamental rights. Some of these became part of the constitution but the crucial first amendment protecting freedom of Religion, the right to free Speech, freedom of the Press, and the right to peaceful Assembly remain as codicils and are still pending before the states for ratification. This has required some creative footwork by Supreme Court Justices over the years discovering rights which are so fundamental that they exist alongside of those protected by the written constitution. But the problem remains that if there is a right or liberty which is not specified in the Bill of rights and which cannot be rescued by the ninth amendment it may be beyond the competence of the Court to declare if the right claimed is “fundamental” and to ensure that it cannot be traduced.

Perhaps the greatest indictment on the enshrining rights in a written document at a point in time is the Second Amendment which creates a constitutional right for all Americans to bear arms. A useful right in the eighteenth century when the fledgling state was beset by enemies bent on its destruction, but widely recognised as beyond its use by date today; yet nothing can be done to remove it.

  1. Where then does the source of constitutional protection reside?

Anyone with a passing knowledge of history will understand that the rights, liberties and privileges which we enjoy at any given time have been hard won. The accumulation of such rights grows out of the history of the people their past travails and the bravery of those who risked all by standing against the tyranny of the day. These rights come to rest in the hearts and minds of the citizens safeguarded by their eternal vigilance. It is this living process, adapting as it does to changing circumstances and protected by an independent and uncorrupt Judiciary which guarantees our rights and liberties and not windy pieces of paper such as is proposed by the authors of this document.

True enough that from time to time such history finds expression in legislative instruments which give voice to these victories but they are by no means the source of them. One such voice is the New Zealand Bill of Rights Act (another brain child of Sir Geoffrey) which does no more than declare preexisting rights and liberties previously enunciated by the courts, or statute law. The rights and liberties protected by the Bill of Rights Act  include: The right not to be deprived of life, not to be subject to torture or unusual punishments   the democratic electoral rights set out in the various statutes, freedom of thought, conscience, and religion, freedom of expression,manifestation of religion and belief, freedom of association, freedom of movement and a collection of rights relating to the administration and application of the criminal law.

That there is nothing new or original in any of these rights and liberties as is clear from the preamble to the statute which provides that it is: An Act

  • (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand.

In other words the existence of the rights predate the statute and owe nothing to the legislation for their existence. (my emphasis)

It is against this background that the draft written constitution is set. Much of the document is merely a reiteration of the structure of the state as it presently exists with necessary amendments following the abolition of the Queen of Great Britain as head of state of New Zealand. The cap is doffed to the Treaty of Waitangi as the founding document of the present state, and the retention of the Waitangi Tribunal as part of our (presumably) quasi-judicial court structure. The rights to be protected  fall into three categories labelled: rights, freedoms, and liberties, but really they all amount to the same thing. So that the item freedom of expression is merely another way of saying that the subject has the right recognised by law to freely express him or herself, or “the liberty of the person is really the right not to be arbitrarily detained. Two questions arise: are any of the proposed protected rights novel. The answer is no. As with the case of the New Zealand Bill of Rights Act referred to above all of the rights proposed to be protected currently have the full existing protection of law made by either the courts or by Parliament. These protected rights have become so commonplace internationally and widely adopted in all civilized countries other than the dictatorships. They are protected by the courts and it is unthinkable- short of a violent revolution (as happened in Germany between 1933 to 1945) that any democratically elected government (as Hitler was with the aid of the Christian parties in the Bundestag) would seek to abrogate any of them.  This being so setting them out in yet another document which adds nothing to the existing legal protection and which will entail substantial cost is an idle exercise.

  1. Social and Economic Rights

In clause 106 0f the draft document the authors propose that a number of new but not “justiciable” rights be created by telling Parliament that in promoting social welfare of the people it must be guided by:

(a) the right of everyone to an adequate standard of living, including adequate food, clothing and housing:

(b) the right of everyone who requires it to social security for the provision of financial and other support that clearly establishes the entitlements that may be claimed:

(c) the right of everyone to the enjoyment of the highest attainable standard of physical and mental health:

(d) the right of every worker to resort to collective action in the event of a conflict of interests, including the right to strike:

(e) the right of every worker to enjoy satisfactory health and safety conditions in their working environment:

(f) the right of workers to earn their living in an occupation freely entered upon.

 If the authors had bothered to consult any primer on Jurisprudence they would have learned that none of the items in this utopian wish list are capable of becoming rights recognised by the common law. A succession of jurists writing in the late nineteenth and early twentieth century refined the components of what constitutes a right at common law. The analysis is complicated but for present purposes the essence is that no right can exist and be enforceable at law unless there is a correlative duty on some other person to abstain from infringing that right. Thus if I have the right to free speech there is a duty on others recognised by law not to prevent me from exercising that right. If there is no such duty then to say I have a right is meaningless because anybody can prevent me from doing what I claim is my right. This distinction has been applied by the courts in numerous cases over the years.

Applying this analysis to the so called social and economic rights proposed for this constitution the document is silent on who it is carries the burden of the correlative duty. To take one example (but the analysis applies equally to all of these so called rights): The document proposes that I have the right to the enjoyment of the highest attainable standard of physical and mental health but is silent on who carries the correlative duty to ensure that I may exercising that right. The so called right cannot therefore be recognised at law, and calling the “right” non-justiciable is empty rhetoric which adds nothing. The wish list creates “rights” recognisable at law or it doesn’t. There is no halfway house.

It is clear what the framers of this document are attempting is to cloak a bog standard set of socialist aspirations which belong in the sphere of politics not the common law in a legal mantle. This is a brazen attempt give them a respectability to which they are not entitled. Surely they are aware that all of the proposed “social and economic rights” carry a butcher’s bill which must be paid by the long suffering taxpayer, and only if their consent is first obtained at the ballot box.

  1. Conclusion

If those responsible for framing this document expect that it will stand as a monument to their far sighted sagacity they will be disappointed. My prediction is that these tablets of stone will stand like one of those statutes on Easter Island lonely and unloved, and seldom visited.