Our representatives in Parliament don’t talk much about democracy although I’m sure all of them profess to value it. But actions speak louder than words. Left to their own devices they have legislated and regulated to diminish democracy in the name of security and law enforcement. And for nearly thirty years the Parliament has meekly subscribed to the harsher anti-democratic aspects of the New Economy, pandering to the rich and to the corporates, granting more and more tax relief to those who can afford to pay (and usually don’t). Parliament has turned a blind eye and a deaf ear to the plight of the poor, both the working poor and the unemployed.
The organs of the Fourth Estate value the benefit they gain from democracy, their freedom of expression, but have stood by and uncritically watched and accepted the anti-democratic slide. Few media outlets, if any, have stood back from the 24-hour media cycle and critically analysed where it is all heading and what it means for democracy. They have abdicated their role in democracy, the reason they enjoy their freedom of expression, which is to act as the watchdog of democracy on behalf of us all. Now it seems the dog meekly watches only the interests and profits of the corporate proprietors.
We citizens have also abdicated our role in democracy through low voter turnouts and through our apathy and mute compliance. Politicians court our votes but rely on our apathy and mute compliance to pursue their own agendas, invariably these days the agendas of the elites.
“Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it”. – Thomas Paine.
“But you must remember, my fellow-citizens, that eternal vigilance by the people is the price of liberty, and that you must pay the price if you wish to secure the blessing”. – Andrew Jackson.
These were men who were there at the birth of the modern liberal democracy and who knew the price that countless thousands had paid to achieve it. They knew its value and understood its fragility. In our terms democracy is a priceless and fragile taonga; hei kuru kahurangi. If we want to keep it in the whanau for generations to come then we must actively protect it, for it will surely be stolen from us.
“If a nation values anything more than its freedom, it will lose its freedom; and the irony of it is if it is comfort and money that it values more, it will lose that too.” – Somerset Maugham.
“Democracy is a device that ensures that we shall be governed no better than we deserve”. – George Bernard Shaw.
So how do we exercise our vigilance, make our voices heard, and encourage others to speak up for their democratic rights and freedoms. How do we make ourselves as a nation deserving of good democratic government.
Reliance on parliament and the media, the first and fourth estates, hasn’t worked for us. Many or most liberal democracies have two estates or houses in parliament, the one to watch over the other. New Zealand’s upper house was abolished in 1950. However bi-cameral parliaments in other democracies haven’t been all that effective in modern times in protecting democracy from the avalanche of post 9/11 anti-democratic legislation, regulation and practice.
What did work for a time in New Zealand was a single dedicated constitutional lawyer in a position of power and influence in Cabinet. Sir Geoffrey Palmer was responsible for the Constitution Act, the New Zealand Bill of Rights, the Imperial Laws Application Act, and the State Sector Act. He was also responsible for establishing the Royal Commission on the Electoral System (1985-86). The Commission’s recommendation to adopt an MMP electoral system changed the face of politics and made the parliament more representative, less liable to capture by vested interests, and less vulnerable to extremism from both ends of the political spectrum.
Sir Geoffrey’s constitutional initiatives made us more democratic but did not put in place any mechanism to actively protect and promote democracy, to foster participation and vigilance. Even his Bill of Rights has not been able to put a brake on anti-democratic legislation. Something is still missing.
I start from the premise that despite present public opposition to the granting of increasing powers to the regulatory, law enforcement, security and intelligence agencies they will continue to exist and operate. The opposition is not widespread and in exercising democratic vigilance the public is still mostly mute and apathetic. I assume that over time those regulatory, law enforcement, security and intelligence agencies will probably gain even more powers in direct proportion to the rate of development of communication and data storage technologies.
Given that somewhat cynical view of political reality what I think would best fill the gap is a Permanent Royal Commission on the Protection and Promotion of Democracy.
It would have some executive functions but none that would encroach upon the powers of the democratically elected government. It would act as watchdog on behalf of the people. It would be empowered to investigate, report and recommend. It would report and recommend to the people of New Zealand through the Governor General, who would of course refer its reports and recommendations to the Parliament. The Commission would however be legislatively required to make all of its reports and recommendations public, without exception. It would be empowered to refer matters to the relevant investigation and prosecution agencies if its own investigations uncovered unlawful activity. The Commission would also have the responsibility to consult, receive submissions and complaints, and to educate and promote.
Many of the components of a permanent Royal Commission are already permanently in place. What is needed in an umbrella structure with more standing to focus their myriad roles on the central purpose of all of them, the protection and promotion of democracy. Those that have a direct impact on democracy are:
- The Ombudsmen
- The Privacy Commissioner
- The Human Rights Commission
- The Law Commission
- The Electoral Commission
- The Local Government Commission
- The Independent Police Conduct Authority
- The Inspector General of Intelligence and Security
- The Commissioner of Security Warrants
- The Remuneration Authority
- The Commerce Commission
The last of them raises some interesting issues. The regulation of commerce to curtail its excesses and any behaviour that is not in the best interests of the nation is a key function in a democracy. The free market does not mean that commerce is able to do whatever it wants to do in order to further its own interests. The freedoms and rights inherent in liberal democracy are the freedoms and rights of individual citizens and not the freedoms and rights of corporations. Therefore nothing that is done in commerce ought to impinge on those individual freedoms and rights. The regulation of commerce is essential in a democracy.
I would also add a new Commissioner of Warrants, which might be the same person as the present Commissioner of Security Warrants with expanded responsibilities.
The Commissioner of Warrants would receive requests for review from members of the public, or from their legal representatives, who wish to challenge the legality or reasonableness of any warrant obtained by any investigative or enforcement agency including the police. Given the recent history of unlawful warrants, and anecdotal evidence from within the judicial community of police laxity in obtaining warrants, there would undoubtedly be an initial heavy workload for the Commissioner of Warrants. However once the police and district courts realise that they should no longer pay lip service to the law concerning warrants the workload would decrease markedly. It might also encourage the Police Commissioner to pay more attention to his democratic responsibilities as far as warrants are concerned.
There would need to be new law concerning the swearing of affidavits to obtain warrants. Anyone, including police officers, who deliberately, negligently or incompetently swore false, inaccurate or misleading evidence would be liable to legal sanction including reprimand, dismissal, prosecution and imprisonment. The violation of citizens’ rights through the unlawful, negligent or incompetent use of warrants is a serious crime against democracy. It is not just the misdemeanor that police and politicians think it is.
And perhaps in there we might add a Commissioner for the Constitution.
Other agencies that have an impact on democracy and whose functions might be transferred to a Royal Commission include:
- The Commissioner for the Environment
- The Families Commission
- The Children’s Commissioner
- The Health & Disabilities Commissioner
- The Retirement Commissioner
And so, hopefully, to a national conversation on democracy.
The Royal Commission would engage with the public on any and all issues concerning the protection and promotion of democracy, and would periodically report on that conversation. Engaging with the public is what Royal Commissions do well. Outstanding examples include the Royal Commission on the Electoral System and the Royal Commission on Social Policy in the 1980s. As a permanent royal commission it would not be under any time constraint as most other consultative bodies are. It would also have wide terms of reference to enable it and the public to explore all corners of democracy.
Engagement with the public to encourage and empower them to take up their democratic responsibility to participate and to exercise vigilance would take years, but years is what a permanent royal commission would have.
Right now I want to talk about liberty, and freedom, and rights, and privacy, and participation. I want to talk about democracy; and about a Permanent Royal Commission on the Protection & Promotion of Democracy.
Previously: The Constitutional Review & Democracy