Professor Devlin’s Criticism of the Constitutional Reform

Article originally posted on the New Zealand Centre for Political Research website.

http://www.nzcpr.com/guest307.htm

 

 

NZCPR Guest Forum

Constitutional Advisory Panel: Engagement Strategy for the Consideration of Constitutional Issues

Professor Martin Devlin

24 September 2012

 

In any mature society, the issue of having, abiding by or amending, a country’s constitution is of national significance and importance. This facet of national life determines not only how political power will be exercised but also how it will be kept in check – matters of profound significance and therefore to be exercised with great diligence and care. A constitution is the source of ultimate or supreme law of a country, to which all other legislation is subservient. In New Zealand’s case, Parliament is our supreme lawmaker, able to make and unmake all laws, and is the source of authority for anyone else it may choose to delegate a law-making power. In other countries which have constitutions, attempts to alter elements of the constitution in most cases, only occur by public referendum or by violent revolution.

 

The absolute power of Parliament to make or rescind law in New Zealand is not subject to any check or balance, except the three-yearly electoral cycle. In an MMP environment, where the balance of power can be held by a minority party such as the Greens or the Maori Party, one can immediately see how such “unbridled” power could be extremely dangerous – as pointed out by Geoffrey Palmer in his book “Unbridled Power”. In many countries today, civil unrest or, worse, violent revolution, results from a breakdown or failure or unlawful usurpation of constitutional arrangements. And, usually, after horrendous violence, comes a negotiated peace based on a renewed set of constitutional guidelines. One need only to look at Syria, Egypt, Libya, Iran and Iraq to see what happens when the rule of law and a failure of the constitution occurs. It follows, therefore that any non-violent attempt to change a country’s constitutional structure requires a very sound set of reasons and a very careful, neutral and utterly transparent process which has the support and interest of the people at large.

 

Why, then, is it necessary to conduct a review of New Zealand’s constitutional arrangements currently being undertaken by a panel of political appointees, operating away from public scrutiny, answerable only to the “responsible ministers” (Deputy Prime Minister and Minister of Maori Affairs) and involving a cross-party reference group of other political parties (except NZ First)? Has there been a constitutional crisis requiring such a review? Is New Zealand’s constitution not functioning? Is there a prospect of violent revolution which needs to be averted?

 

Well no, not yet we hope. The answer is a non-mandated political arrangement between the National and Maori parties, agreed to after the 2008 election as part of a confidence and supply agreement (which National did not need to enter into, to govern). No mention was made of this demand from the Maori Party in the 2011 election campaign. This private political “arrangement” has now morphed into a detailed “strategy” (actually a detailed action plan) which, in the author’s opinion, is ultimately designed to ensure that the Treaty of Waitangi (the Treaty) is permanently and prominently enshrined in the New Zealand constitution. At present the Treaty has NO independent legal status in our law. But to have it put into a written constitution would not only ensure that it has formal legal status, but would also render it virtually unassailable from a legal point of view, because it would then be “supreme” law from which all other legislation flows.

 

Enshrining the Treaty in a New Zealand constitution would not be such a problem if it were limited to the specific PROVISIONS of the Treaty. The Treaty provided for Maori to assign sovereignty to the Queen and in return the Queen would guarantee Maori her protection, from usurpation by a foreign power and also, arguably, from the internecine horrors of the musket wars. Maori signatories were also guaranteed undisturbed retention and control of their land, forests, fisheries and other “taonga” and Maori would enjoy equal status as British subjects. But, since 1975 with the establishment of the Waitangi Tribunal, the PROVISIONS of the Treaty have been totally and in the author’s view, duplicitously supplanted by the PRINCIPLES of the Treaty. These “principles” are nowhere defined, but research by the author has revealed that there exist at least 13 or more distinct lists of “Treaty principles”, ranging from two “principles” to over twenty “principles”, revealed somehow (perhaps by divine revelation or superior intellectual deduction?) to various individuals, superior academics and organisations with vested interests. No two lists are the same.

 

New Zealanders are now required by their own government to accept that the Treaty DOES NOT MEAN WHAT IT SAYS, but what a post-1975 cabal of politicians, academics, jurists, bureaucrats and activists SAY it means. For example, Mathew Palmer, quoting the Broadcasting Assets case, where Maori laid claim to the entire radio spectrum, summarises references to Treaty principles in a range of current legislation thus “the principles which underlie the Treaty have become much more important than its precise terms”. This post-1975 approach to the Treaty – that is, the incorporation of references to Treaty “principles” in various legislation, as opposed to the Treaty’s terms or provisions as agreed to in 1840 – is now widely-accepted and firmly established in the political and legal systems of New Zealand and underpins a never-ending range of claims against the Crown. That is quite a turnaround. No matter, too, that New Zealand’s history has, as a result, recently been completely rewritten and that the Waitangi Tribunal’s version of history (described by at least one academic, Byrnes (2004) as “seriously flawed” history and severely criticised by former Tribunal member Professor Bill Oliver) is now the “official” version of events.

 

The political outcome from this prevarication has contributed significantly to a new political order. The commonly-understood concept of majoritarian Westminster democracy is no longer acceptable to Maori because it consigns Maori to a permanent minority status. Majoritarian democracy has been supplanted by another form of “democracy” known as “identity politics”. Masquerading under the term “representative” democracy and focused solely on minority groups, this approach to democracy epitomises the MMP system New Zealanders recently re-endorsed. The Helen Clark-led Labour government made an art form of the aggregation of minorities into a political majority, successfully countering the National opposition’s repeated references to “the mainstream”. Identity politics now dominate our political landscape.

 

Since 1975, then, successive governments have followed a policy of Maori appeasement, based on a flawed re-writing of our history and a requirement by the courts to deal only with the principles of the Treaty – not its terms. Our “democratic” government is increasingly unable to govern without first acquiring permission from Maori to act! Enshrining the Treaty in a constitution simply cements that situation in place. One need only consider the current shambles over partial asset sales and Maori claims to ownership of fresh water resources in New Zealand to get the point. Add to this the furore over the foreshore and seabed claims, the claims of intellectual property rights over New Zealand flora and fauna; claims to ownership of the radio spectrum; and opposition to mineral exploration and extraction industries and one can see where this is heading. Who in their right minds would ever consider the New Zealand government as a reliable business partner, given this shambles? Do New Zealanders seriously believe that their government actually governs?

 

But, back to the constitution. Why has this suddenly (and ever so quietly) risen again? The answer is that is has been there all along but has never been publicly acknowledged by successive governments or the media.

 

In 2000, a national conference on “Building the Constitution” took place at Parliament, which the author attended in an official capacity. This conference was quickly and neatly captured by Maori interests, led by Paul Reeves and from day one became focused on the place of the Treaty in the constitution. Whereas Whatarangi Winiata, later the foundation president of the Maori Party, was promoting an equal sharing of political power between Maori and the rest of New Zealand, based on his successful attempt to achieve a similar outcome in the Anglican Church 3-tikanga model, his colleague Judge Eddie Durie thought the Treaty might receive just an “honourable mention” in a constitutional framework. Recent comments however (DomPost 12 August 2012) by Durie, now retired, but Co-chair of the Maori Council pushing the freshwater ownership case, suggest he may have changed his views.

 

By 2005, the intention to enshrine the Treaty in a New Zealand constitution reached a significant point with the publication of a comprehensive report by the Constitutional Arrangements Committee of the House of Representatives. Some 170 pages long, it had been commissioned by the House (National in opposition did not participate) as a “review” – that duplicitous governmental technique for diverting attention from contentious issues and restricting openness and discussion by limiting the terms of reference. It was to identify and describe New Zealand’s constitutional development since 1840; key constitutional elements; sources of the constitution; what other countries have done; and significant processes to be followed in the New Zealand environment. It remains a very comprehensive treatment of constitutional issues and provides specific recommendations, but obviously nothing changed as a result. Just another review? Nothing too contentious there?

 

Its recommendations included a list of generic principles to be applied when discussing constitutional matters, such as fostering widespread understanding; providing accurate, neutral and accessible public information via non-partisan mechanisms; adequate time; and, surprise, surprise, specific processes to facilitate discussions within Maori communities. The ACT member (Stephen Franks) to his great credit, quite correctly dissented to the obvious glaring contradiction inherent in these recommendations that promoting different , specific processes for Maori (or any minority, for that matter) immediately breaches the principles of neutrality and non-partisan processes. In other words, special provisions for Maori only, are clearly at odds with the lofty claims of a level playing field, even though there may have been a cultural argument justifying a different approach. But then, following this reasoning, one could also justify a different approach to satisfy other cultural and minority groups as well. Identity politics again?

 

Of particular importance in the 2005 report is section 5 chapter 1, at page 7 – “New Zealand’s constitution is not in crisis”. No less a person than Cooke.J, he of the “Lands” case fame, whose personal opinions on the importance of the Treaty are quoted ad nauseam, says” given acknowledgement that checks and balances are always necessary to rule out absolute power, it would seem that by and large the present New Zealand constitutional arrangements work reasonably well” (p.8), judicial-speak for leave it alone. However, in contrast, a Maori organisation, the Treaty Tribes Coalition submitted ”the greatest shortcoming of New Zealand’s constitutional arrangements is their failure to fully recognise the fundamental significance of the Treaty” and “the review should consider as a key issue, HOW – not WHETHER – the guarantees enshrined in the Treaty can be given greater legal and constitutional protection”.

 

The issues then are very clear – there is no fundamental reason why we should be reviewing the New Zealand constitution again at this time, except that the Maori party is demanding that we do so. The afore-mentioned examples of partial asset sales and claims to ownership of New Zealand’s fresh water and other natural resources clearly indicate that Maori intend to take every opportunity to hold the New Zealand government (and the New Zealand population) to ransom in pursuing their claims, justified or not. Due legal process is obviously not certain enough in its outcomes, though it has certainly been of substantial benefit so far. Enshrining the Treaty constitutionally will cement in place the ability of an ethnic minority to require the New Zealand government to acquiesce to its demands. No other ethnic minority in New Zealand has either the intent or the ability to make similar demands. Arguably, this ability probably does not exist anywhere else in the world.

 

The report significantly notes at section 10, p.8, “Moreover we note that the process of embarking on a discussion of possible constitutional change may itself irretrievably unsettle the status quo without any widely agreed resolution being achievable. This point was also made by a number of submitters.”

 

Clearly, there needs to be a very good reason to embark on this journey, before opening a big can of worms. Which raises the obvious question, again, of just why are we doing this at all, at this time? It is clear that demands for constitutional reform to include the Treaty continue to emanate from the Maori minority, in the absence of any significant reason or crisis within government (except, perhaps, their political vulnerability) nor the community at large, for such reform. The provisions of the Treaty are already adequately catered for in various constitutional components, particularly within the New Zealand Human Rights Act 1993 and other legislation.

 

Which brings us to the present.

 

A Constitutional Advisory Panel was established in August 2011. The appointees were selected by the National and Maori parties. (NZ First was not yet in parliament and subsequently rejected both the panel and participating in it). Cabinet decided on the make-up and size of the panel and appointed the members. The ethnic origins of the panel of 12 members includes 5 of whom are Maori, 5 of whom are New Zealanders of European descent, 1 of whom is of Asian Chinese descent and 1 of Pacific (“Pasifika”) descent. When asked whether the ethnic makeup of the panel was intended to reflect the supposed post-1975 Treaty relationship (or so called “partnership”) between the Crown and Maori, ie equal numbers of Maori and New Zealanders of European descent, the responsible ministers replied, inter alia, that “We considered that the members of the panel should be well-placed to seek out and understand the perspectives of Maori on these important issues. The makeup of the panel reflects this”.

 

So, how representative of the ethnic makeup of New Zealand’s population is this? Note – figures in parentheses reflect the proportion of ethnicities represented on the panel. The 2006 census found that New Zealand’s population comprised NZ European and “New Zealanders” 78.7% (Panel: 41.6%), Maori 14.6% (Panel: 41.6%), Asian 9.2% (Panel: 8.3%) and Pasifika 6.9% (Panel: 8.3%). The figures indicate that European New Zealanders are seriously under-represented on this panel and Maori over-represented. Why? The responsible ministers dodged this question by claiming that “the Panel is representative of wider New Zealand society(!) and is able to relate to a wide range of New Zealanders(!)”.

 

When asked what particular Constitutional skills and experience these individuals might bring to the review, the responsible ministers again dodged the question by responding that the review is not an exercise in “technical reform” so panellists do not need any background in constitutional matters. Pardon me? Not a constitutional expert in sight? No Geoffrey or Mathew Palmer? No Mai Chen? For the record, the biographies of the panellists can be found at http://www.beehive.govt.nz/release/constitutional-advisory-panel-named. None appear to have any particular skills or experience in constitutional matters or in conducting large-scale public education and information projects.

 

When asked if the responsible ministers would be publicly releasing any findings or outcomes produced by the panel, the responsible ministers replied that the panel is independent of government and so this is not a decision for the ministers to make! You mean it is entirely up to this panel to decide if and what they deign to advise the public about? Really?

 

When asked why a review now, the responsible ministers responded that it followed the political arrangement between the National and Maori parties in the 2011 Confidence and Supply Agreement. At least that bit is honest.

 

When asked if the terms of reference may limit New Zealanders opportunity to participate in a review of the constitution, the responsible ministers replied that they were confident that the Panel’s approach to an engagement strategy provides scope for broad engagement with New Zealanders.

 

The first document produced by the Panel has now been released – if you know where to look.

 

Entitled “Engagement Strategy For The Consideration of Constitutional Issues”, it makes interesting reading. It commences with a list of Maori “principles” which will guide the engagement. These are translated into English as including: provision of information to people to allow them to participate; building relationships; inform and be informed by others; engage “chief to chief”(?); and inclusiveness. No mention here of strict neutrality, transparency or non-partisan processes. No mention of a level playing field and/or the equality of all citizens, nor any mention of the recommendations to Parliament of the 2005 report.

 

Next, the goals of the engagement process. These include “hearing the views of a wide range of New Zealanders” and separately, “hearing the views of a wide range of Maori groups and citizens”. Are not Maori also New Zealanders? Does this separate goal suggest the panel is expecting or suggesting separate and different outcomes just for Maori? It is evident that there are two different processes at work here, confirmed later in the revelation that two separate budgets are set for engaging with the two separate communities, each of $2 million. It could be concluded that Maori are set to be much better informed than the rest of the population as a consequence. It could also signal that the ground is being prepared for a special place for Maori and the Treaty in any ongoing constitutional arrangements, and that this exercise will produce some sort of evidence to justify the objective.

 

Other elements of the engagement strategy include widespread use of a proposed website and social media to inform New Zealanders. But, do all New Zealanders have access to such sources?

 

The strategy differentiates between those who are “passionately Interested” – a group which the Panel is keen to make contact with – and people who are connected to active networks who may or may not be interested. Using the aforementioned Maori “principles”, the panel will develop an iterative process where comments from various sources are summarised, interpreted and then fed back in to various fora for further discussion. The inherent danger in this process is the potential for manipulation of information, such that the end game could be designed to produce desired outcomes. Clearly we are totally reliant on the integrity, neutrality and good faith of the panellists and the non-partisanship of the processes they use throughout the engagement exercise, but we will not be made aware of any outcomes until after the event. Having signalled already that there are to be two distinct approaches, how neutral can the panel really be and how non-partisan can the engagement processes be? Given the well-known and widely-publicised biases of several panel members, the public can have very little confidence that this will be a fair and totally neutral exercise.

 

Also, Maori and other ethnic minorities are rich in one area which the wider population is not – and that is in SOCIAL CAPITAL. Social Capital is the aggregated strengths of kinship, family ties, ethnic and cultural values, family employment and increasingly, state paternalism or government assistance. Social capital is considered by some researchers to be a performance inhibitor, by others an advantage over other, more individualistic, approaches to business. It could be argued that because of their already high level of social capital, Maori and other ethnic groups (Asian, Pasifika) will have a significant advantage under the Panel’s proposed engagement strategy. In contrast, Western culture tends to be more individualistic with limited
extended family ties so engaging with the wider community is going to be much harder. Perhaps it is the “pakeha” population which should be accorded a higher degree of resource funding, based upon their relatively low level of social capital and their much higher proportion of the general population. That seems only fair and equitable, does it not?

 

The panel goes on to propose a set of questions to “guide” the discussion, having previously said it will be “guided by the public” in what issues are raised. Surely this is self-contradictory? The Treaty features prominently in these “guiding” questions so once again, the panel cannot claim that the process will be neutral and essentially self-evolving. For example, in several questions, reference is made to “what opportunities does the Treaty offer our country”? Any balanced approach to surveying people on this issue needs to include the words “or threats” in this question, surely? No mention at all of what problems the Treaty is already causing, such as limiting economic development, according special status and privileges to an ethnic minority, and practically negating traditional democratic processes such as the creation of non-elected Maori wards in local authorities. To ask such a leading question negates any claim the panel might make to neutrality or non-bias. This is fundamental survey methodology, which several panel members are aware of – but obviously choose to ignore.

 

The panel will “ensure that iwi and Maori are ‘key’ participants”. Does this mean that others are somehow not quite so important in this process? How bloody arrogant.

 

The engagement “strategy” morphs quickly into a detailed action plan by the Panel’s own admission. Academics(!), commentators(?), iwi, Maori and community leaders are to be engaged (hired?) to assist in framing workshops, and a mysterious group called “networkers” will initiate conversations and run “study circles”. Hmmmm. One wonders who these people will be? And how are they to be identified and selected? Will these “networker” appointments be widely advertised and contestable? Will public meetings be widely publicised? Will these clandestine “study circles” and planned workshops be closed or open?

 

Given the biases in Treaty matters repeatedly shown by many academic historians, for example, it is highly unlikely that the process and outcomes could possibly be neutral. In fact, the “strategy” is not a strategy at all, but a carefully-crafted, pre-determined action plan with clear goals, prescribed processes and expected outcomes. This is not high-level stuff, it is an agenda for ensuring an intended outcome is realised, in this case, the enshrinement of the Treaty as supreme law. This is Business 101!

 

 

Perhaps the most telling element which reveals and reflects the overt biases which permeate this whole exercise, is the risk management section at the end of the report. The risks include: the possibility of not hearing the views of a wide range of people; that the engagement process becomes a narrow range of perspectives; responses maybe polarised and divisive, rather than collective; the process is perceived to be not genuine, with the government or panel seen as having its own fixed agenda; and that the whole exercise is perceived as being controlled by Wellington. If one was to put together a Risk Management assessment, the panel would score ten out of ten for getting these absolutely correct. It will take some doing to convince an already sceptical public that politicians, whom they hold in especially low regard, are capable of mitigating any of these risks. The mere fact that the panel thought it necessary to identify and highlight these risks demonstrates their concerns that this exercise will be seen for what it is – a political jack-up.

 

Summing up, this engagement strategy appears to be a detailed, carefully contrived action plan to ensure a pre-determined outcome and one should not be surprised if the end result is a tightly- limited, formulated set of questions which New Zealanders will be asked to vote upon at an appropriate point in time. After all, the government can then, with hand on heart, say that what has been produced was the outcome of full, free and frank discussions conducted by an independent panel of experts, free from government influence and interference and representative of all New Zealanders, taking particular note of the needs of Maori and the role of the Treaty, “so all we are doing is asking you to confirm what you have already told us”. Sound familiar? Yeah, right! Are we supposed to forget that this is a party-political deal in which only politicians were involved?

 

Well, yes and no, actually. If the government wishes to ensure that the people of New Zealand are well-informed and committed to a process of changing the New Zealand constitution, this “strategy” fails on almost every count. Starting with a good reason to engage in such a process, appeasing a minority political party is not sufficient, even if it means political oblivion. At least the integrity of the government might be partially restored.

 

Next, revisit the range of universal principles which arose out of the 2005 report such as transparency, neutrality, non-partisan processes, etc, to guide the process. The UN Convention on Civil and Political Rights would be a good place to start. Then there is the question of equality – which Treatyists are obviously eager to pass over in their scramble for special rights for some. In any fair and equitable constitution, in a truly democratic society, it is inconceivable that some members of society should enjoy a special status or different rights than others, regardless of who arrived in New Zealand first. To do otherwise will be to condemn any constitution to the rubbish bin, treaty or no treaty. The Treaty of Waitangi is the first, and an important, milestone on New Zealand’s journey towards nationhood, but was superseded by the Constitution Act of 1852 and other evolutionary, constitutional and legislative arrangements which followed. Its provisions or terms, as written and agreed to in 1840, should of course be honoured, as Judge Durie initially proposed in 2000. To now, some 172 years later, try and incorporate a series of undefined, unagreed-to, and in many cases, opportunist “principles” into a constitutional form is a recipe for disaster because there will never be agreement amongst the population as to which or whose principles should be included and which excluded. We must not make this up as we go along, with some being involved and others simply presented with a fait-accompli. The result does not bear thinking about.