Category Archives: The Constitution

The Treaty of Waitangi Revisited

The Treaty, Maori development and the Constitution


For the last 45 years the Treaty of Waitangi has been the central icon, or pou whakapono, in Maori political discourse and action. It was one of the rallying pou for political activism from the 1960s to the 1990s.

The Treaty attained political standing and limited legal standing with the passage of the Treaty of Waitangi Act 1975 which established the Waitangi Tribunal and empowered it to investigate contemporary grievances and claims. Many Maori misunderstood the political recognition that some grievances needed to be settled via a legal or quasi-legal process for legal recognition of the Treaty itself. The Tribunal’s mandate was extended in 1985 to allow it to accept claims dating back to 1840. In that largely political and limited legal incarnation it came to underpin most Maori social and economic development initiatives, and almost all claims to settle historical grievances.

The Treaty has undergone many transformations in the way we regard it. At the moment we are having a conversation about whether it should form part of the Constitution (as entrenched supreme law). The constitutional advisory panel is considering the place of the Treaty in the New Zealand Constitution.  The questions arising in the conversation so far about the Treaty include:

  • What will happen once all historical Treaty grievances are settled?
  • Should the Treaty be entrenched?

This essay questions the prevailing mindset about the Treaty of Waitangi. E hika ma, you may not like what I have to say but stay with me and together let’s explore another viewpoint. Instead of just accepting the common view or the prevailing paradigm I think that we should from time to time take a close look at our beliefs, and the premises and assumptions underlying them. Sometimes we do confirm our beliefs, but disturbingly sometimes we realise we have just gone along with the crowd and that perhaps the crowd is wrong, or even that we are going along with the wrong crowd.

So let’s take another look at our Treaty.

A treaty is a form of contract usually between sovereign nations but in this case between a sovereign nation (Britain) on the one hand and the chiefs of many hapu on the other. In 1840 when it was signed it was a political and diplomatic document that served to legitimise the British presence in Aotearoa and purported to confer upon Maori the benefits of becoming British subjects. Some who signed it were sceptical, many were not. Many did not sign it.

There has been much contemporary speculation about the reason so many chiefs signed the Treaty and some have even stated that they didn’t really know what they were signing. Some have said that they had just a week or less to consider its implications. However I lean towards the opinion expressed by the late Wi Kuki Kaa in Te Putatara 5/90 of 21st May 1990:

“I resent the implication that the Kahui Ariki at Waitangi 1840 didnt quite know what they were about. E hika ma! They werent dumb; they were learned men, products of missionary education. They wanted, because they needed it, a document to create some form of law and order: to protect themselves from the rapaciousness of the re-settlers whose material goods had helped to improve their standard of living; but also from those of us in the Tai Rawhiti and elsewhere still smarting from the humiliations inflicted on us by Cyclone Hongi, Cyclone Pomare or Cyclone Patuone.

“The Tai Tokerau people were becoming prosperous – a situation which only thrives in a climate of peace.

“The re-settlers especially the missionaries also needed the Treaty in order to legitimise their pieces of real estate recently acquired; by hook, crook, or holy book. Nobody is going to convince me that the aims of the Confederation (Kotahitanga) were forgotten from 1835 until 1840. Ko te kai a te rangatira, he korero. So you need less than half a wit to realise that the arguments went on at hui for years, culminating in that fateful day in February 1840”.

Despite contemporary debate over its exact meaning, whether in English or Maori, it was basically a political power sharing agreement between the British and quite a few but not all chiefs of hapu. The powers to be shared and how they were to be shared were probably deliberately left open to interpretation. Formal agreements between nations with different worldviews are difficult to formalise in detail, and are often vague and open to interpretation, indicating intention to engage rather than detailed agreement.

As with the many modern diplomatic and political agreements between protagonists in the Middle East the devil is in the detail and they always unravel over the details or when political circumstances change.

Much contemporary scholarship and debate has been over the exact meaning of the Treaty rather than its original political intent. Contemporary scholarship and debate has often attempted to infer exact application to a great many contemporary issues. Therefore in contemporary times there have been hundreds of different interpretations of the intent of the document, depending on the political or economic aims of the interpreter. For a time it seemed that every Maori or Maori organisation with a grievance about anything and everything called upon the Treaty to impose obligations on the government of the day and to legitimise preferred solutions to their grievances.

The Treaty debate and process has certainly served the political aims of Maori, or some Maori, for the time being anyway, but it hasn’t greatly influenced the social and economic well being of most Maori and it doesn’t tell us much about it’s future.

Political agreements, both formal and informal, remain in force only until they no longer serve the purposes of one of the partners to the agreement. They do not stand for all time. They are agreements of convenience at the time they are negotiated.

And that is exactly the history of the Treaty of Waitangi. It is arguable that the Treaty might not have served the purposes of all Maori from the very beginning even though it was signed by and served the purposes of many chiefs, the northern chiefs in the first instance. However as soon as it no longer served the purposes of the British, after they had mustered sufficient population and military power to govern in their own right without the consent of the chiefs, the Treaty was consigned to the back of the cupboard where it became urine stained and chewed by rats.

And there it stayed for many decades.

From time to time Maori attempted to resurrect the Treaty mostly in relation to disputes over the alienation of land. The Government, now ruling in its own right without meaningful Maori participation, ignored them. The courts declared the Treaty to be no longer valid or no longer living. If the exercise of power on behalf of its primary constituency is what government is, then that was probably a legitimate political stance. It may not have been morally defensible from the Maori point of view but political reality often abjures the moral when it is inconvenient. That’s not just a Pakeha trait. It would have been equally true of inter-hapu political life in traditional Maori society. We too held to our agreements only so long as they served our own purposes.

So in the interim while the Treaty kept company with the rats in the cupboard Maori did indeed keep it alive but it was a one-sided treaty by then and one-sided treaties have no force either in law or in political engagement.

The balance can only be resurrected or restored through the weight of numbers or through political or military action. That did not happen until 1975 when the Treaty of Waitangi Act 1975 was made law, sponsored by Matiu Rata after over a decade of political activism, demonstration and networking had gained for Maori sufficient political support and moral suasion to resurrect the Treaty in limited form. Even so that was a political resurrection with very limited legal force.

The present constitutional conversation is about whether or not it should acquire legal force.

Our need to resurrect the Treaty is driven by our relative lack of political power more than anything else. If we had the political power we wouldn’t need the Treaty. Nor would we need to talk about the Treaty in a constitutional conversation.

However during that period around 1975 and in the two decades following the passage of that Act, the Treaty was transformed in the rhetoric of activist Maori from a fraud under the mantra “The Treaty is a Fraud” to the status of kawenata tapu, a sacred living covenant under the mantra “Honour the Treaty”.

As a result of that burst of political activity the “principles” of the Treaty have found their way into legislation and into a great many of the affairs of the nation. Treaty activism has been the foundation for hundreds of millions of dollars of grievance settlements and in that sense the Treaty continues to financially speak.

Many lists of Treaty principles have been devised by the Waitangi Tribunal and in the courts. In 1989 Labour government became the first New Zealand government to set out principles to guide its actions on matters relating to the treaty.

Those principles were:

  • the government has the right to govern and make laws
  • iwi have the right to organise as iwi, and, under the law, to control their resources as their own
  • all New Zealanders are equal before the law
  • both the government and iwi are obliged to accord each other reasonable cooperation on major issues of common concern
  • the government is responsible for providing effective processes for the resolution of grievances in the expectation that reconciliation can occur.

The principles found their way into some legislation and guided government action, or inaction, in relation to the Treaty itself. However they are a rather weak statement of democratic principles that are found with much more clarity and force in the NZ Bill of Rights which itself has not yet been entrenched as supreme constitutional law.

The Waitangi Tribunal has formulated another set of principles including:

  • the principle of partnership;
  • the principle of active protection (of Maori interests);
  • the principle of redress for historical wrongs.

Within those principles the Tribunal has described a number of duties the Crown should observe. The acceptance of the Tribunal’s principles and duties is however a matter of political agreement at any given time by the incumbent government. To date governments have mostly accepted them and have been actively engaged in reaching settlement agreements. That process however will surely come to an end.

This year a government appointed constitutional advisory panel is consulting with the public on the place of the Treaty of Waitangi in the constitutional arrangements of New Zealand. That conversation has been sponsored by the Maori Party through its political support of the National Party in government; an exercise in political influence.

Was it the Treaty itself that brought us to this state of political balance, or was it the exercise of political influence that did it. Could not the same balance have been achieved through the common law and international law with the same exercise of political influernce by Maori. It’s a moot point but not really relevant given that the Treaty was the pou whakapono which gave focus to the political struggle. It serves our political purpose to raise the Treaty to the status of kawenata tapu.

But is that its true intrinsic value. Is it not just a convenient pou whakapono, albeit a very useful pou whakapono.

Consider this. If Maori had retained superior population numbers from 1840 until the present day and if today we were now 75% of the population or even just 51% of the population how would we now view the Treaty of Waitangi. Would we not have consigned it to the back of the pataka, hei kai mo nga kiore, and left it there even if our treaty partner agitated for its resurrection, a one sided treaty. Of course we would have. We would have totally ignored the Treaty. That’s politics and in politics the losers lose. But we were the losers so for us the Treaty lives.

So it’s not intrinsically tapu or intrinsically constitutional. Its value and status depends entirely on both partners acting in agreement. It will never be accorded the status of a constitutional founding document unless and until both partners reach political consensus. The Treaty is such a sensitive public issue anyway that consensus will require a referendum before any legislation, and to entrench it as constitutional law will require 75% of the Parliament to consent.

It is now as it was in 1840, a convenient political document, but this time convenient for the Maori partner. And only time will tell how long it remains so. I don’t see it making its way into the constitution any time soon.

Constitutionally I would prefer that the Bill of Rights be entrenched as Supreme Law rather than the Treaty of Waitangi. It would powerfully serve to curb the excesses of government and to preserve democracy for all.

Notwithstanding my view of the future of the Treaty it will be with us for some time yet. Many political, bureaucratic, academic, legal and corporate iwi careers have been built upon the Treaty of Waitangi over the last 25 years. The elites have a vested interest in maintaining the very useful fiction of the Treaty as the forever speaking founding document of the nation, and even as kawenata tapu.

Meanwhile the social and economic well being of most Maori remains unaffected and untouched by the Treaty of Waitangi in either its original or contemporary interpretation.

E hika ma, that wasn’t too bad was it? Have you changed your mind about the Treaty?


Previous constitutional essays:
Does a constitution protect and promote democracy
Let’s talk democracy
Abolish the Pakeha seats

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NZ Parliament: Abolish the Pakeha Seats

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E hoa ma, I meant abolish the General seats but the sub-editor thought he’d grab your attention by calling them Pakeha seats. But you know what we mean don’t you. You know, maybe they should be called Pakeha seats. We have Maori people in the Maori electorates but very few Generals in the general electorates.

You may think this piece of light-hearted prophesy a bit far fetched; porangi even. Perhaps it is. But I have found that most people imagine a future pretty much like the present. Most people including politicians and policymakers seem blind to the influence of demography; population statistics and projections, and how demography will have a huge influence on the future.

I wrote about demography a few years ago here.

Four Maori seats were established by the Maori Representation Act of 1867 to “provide better protection for the native race”. They were made permanent in 1876. The Electoral Act 1993 brought in a new system to expand the Maori seats depending on numbers enrolled as Maori.

In 1867 there were probably less than 250,000 Pakeha people in Aotearoa New Zealand (115,462 at the 1858 census, and 344.984 at the 1874 census). There is still much conjecture about the size of the Maori population at that time but it was probably much less than 50% of the total population. Whatever it was there were probably enough Maori to significantly influence elections if they were to vote in general electorates. It probably suited Pakeha at that time to marginalize the Maori vote into just four electorates.

The Maori vote remained marginalized in those four seats until 1993, and at the moment in seven seats.

The constitutional advisory panel is considering among other matters the place of the Maori seats in the constitution of New Zealand. The questions that have arisen so far include:

  • Whether to retain or abolish the Māori seats.
  • Whether to entrench the Māori seats, making them more difficult to change in the future.
  • Whether there are ways of ensuring Māori views are represented in the business of Parliament, to replace or to complement Māori seats.

As usual I think we’re asking the wrong questions.

As long as I can remember we’ve had calls for the Maori seats to be abolished. The most strident in recent times was in 2004 when Don Brash promised that a National government would remove the Maori seats. However the two majority parties usually respond that the seats will remain until Maori people no longer want them.

I reckon that Labour and National have always been quite happy to retain them for different reasons. Until recent decades Labour had a guaranteed four seats in Parliament, expanding gradually to seven seats. National on the other hand would have been quite happy for mainly Labour voting Maori to be marginalized into a few seats rather than let loose into the general seats. At the moment of course National is the main beneficiary of the Maori seats and is not inclined to upset the status quo.

But like Don Brash I think its time to abolish some seats. I think it’s time to abolish the general seats. Here’s how we do it.

Step 1

Declare all Pacific Islanders to be Maori and urge them to join the Maori roll.  We should have done that decades ago when our Pasifika cousins started migrating to Aotearoa in numbers. That is our tikanga (ki te manaaki, ki te awhi) but we let other considerations guide our response. We ought to have absorbed them instead of pushing them away to eventually form their own numerous hapu in the cities and to establish their own separate presence in all manner of cultural, social, economic and political affairs. But it’s not too late to put things right.

According to Statistics NZ the nation’s population is expected to reach 5,55 million by 2026. Within that are the following ethnic projections:

  • Maori:       810,000;
  • Pasifika:  480,000; and
  • Asia:        790,000
  • Maori + Pasifika:                1.29 million or 23.3%
  • Maori + Pasifika + Asia:     2.08 million or 37.5%

What is obvious from the statistics but not obvious in public discourse is that people of Asia-Pacific origin are rapidly increasing as a percentage of the total population. Those are just 12 year projections. In a further 25 years, by 2050, I imagine the ethnic and cultural composition might be very scary for some people. Maori+Pasifika will most likely be 50% or over. The scary thing for some is that Maori+Pasifika+Asia will definitely be over 50%, probably well over.

So, if we join with our Pasifika cousins now, and get everyone onto the Maori roll, we could by about 2026 have up to 16 Maori seats out of the 70 electorate seats in the parliament. That will grow over time and might be over 35 seats by 2050, or getting close to it

Step 2

Then around 2050, or whenever it is that Maori+Pasifika+Asia becomes the absolute majority, we generously invite all of our Pakeha countrymen to enrol as Maori so then we have a Maori+Pasifika+Pakeha majority.

Those numbers might translate into something like 63 Maori electorate and 7 general electorates. Now there might be quite a few who wouldn’t enrol as Maori but perhaps the thought of being part of the minority might panic them to choose to join Maori and Pasifika rather than being dominated by a Maori+Pasifika+Asia majority.

This could ungenerously be called the Brash Memorial Strategy.

Step 3

Then we would abolish the General seats and keep just 70 Maori seats. Now I know that some of you might say we should keep the Asians marginalized in the General Seats but that’s not fair.

With 70 Maori seats Governor Hobson’s premature declaration, “He iwi tahi tatau” (we are all one people) would finally come to pass.

Fiendish isn’t it. And if you think I’m porangi take another look at the population projections. That’s the main point of this story.


PS – I don’t believe that Hobson actually said that, “We are all one people”. I reckon he said, “Te Kiwi kotahi ahau – I’m the Number 1 Kiwi”. And that began New Zealanders’ strange habit of calling themselves “Kiwis” – kiwi birds instead of tangata persons. Silly aren’t they – those “Kiwis”.

Previous essays on the NZ Constitutional Conversation:
Does a constitution protect and promote democracy.
Let’s talk Democracy


Let's Talk Democracy

A Permanent Royal Commission on the Protection & Promotion of Democracy
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“I’m not ready to talk about the constitution. I want to talk about liberty, and freedom, and rights, and privacy, and participation. I want to talk about democracy”. – Te Putatara.

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

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The Constitutional Review

putataraDoes a constitution protect and promote democracy?

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A constitutional advisory panel is considering a range of matters and seeking views and opinions regarding the New Zealand Constitution. The matters under consideration are electoral matters, Crown-Maori relationship matters, the Bill of Rights and whether there is a need for a written constitution. The unwritten New Zealand constitution has evolved organically based on British, New Zealand and United Nations convention, and piecemeal legislation. It has never really been ratified by gaining the informed consent of the people of New Zealand to the whole constitution as a complete body of convention and law.

This constitutional conversation is long overdue. But is it the most important conversation we should be having.

The foundations of the constitution are said by the panel to be the rule of law, representative democracy, responsible government, and the separation of powers. A written or unwritten constitution for a liberal democracy should indeed embody those ideas of democracy. But should we not have a conversation about democracy itself before the conversation about the constitution. Should we not explore what is that we require of our democracy before we consider how to define it or to enshrine it.

The basic idea of democracy is “majority rule” tempered by the need to protect the interests of minorities against what is sometimes called the “tyranny of the majority”. That idea underlies the system of electing representative governments and having checks and balances to ensure responsible government. The rule of law encompasses respect and protection for civil liberties and human rights, due process, and the freedom for civil society to organize to represent their own interests and to meet their own needs.

The modern liberal democracies of Europe, North America and Australasia arose out of five centuries of struggle for liberty and rights. The first step was the breaking of the hegemony of the church over the minds and lives of individuals, followed by the replacement of absolute monarchies by representative government and citizen participation. That alone took place over centuries and many hundreds of thousands of people died in the struggle. Advances following the achievement of freedom from church and kings included freedom from slavery, universal education, rights for working people, the enfranchisement of women and the codification of human rights.

The concept of rights has become the central organizing concept of those nations where constitutionality, democracy and the rule of law prevail. The seminal writings of theoretician John Locke (Two Treatises of Government, 1690) form the foundation principles underlying documents such as England’s Bill of Rights (1689), America’s Declaration of Independence (1776), France’s Declaration of the Rights of Man and the Citizen (1789), the US Bill of Rights (the first ten amendments to the Constitution, 1791), the United Nations Declaration of Human Rights (1948) and New Zealand’s Bill of Rights (1990).

The rights and freedoms we now enjoy as citizens equal in democracy are the rights and freedoms once enjoyed only by the aristocracy of 16th century Europe, and by the hereditary chiefs of 17th century Aotearoa. In that sense we are all now princes or chiefs, at least in the eyes of the law if not in practice.

Most people would be completely unaware of that 500 year struggle, or what life was like before democracy. Many Maori wrongly believe that traditional society before colonization was democratic and egalitarian. The reality for Maori was much the same harsh and often brutal existence as that experienced by Europeans before democracy. In ignorance and amnesia we consequently take our democratic freedoms and liberties for granted and value them less than we should. The World War II generation was perhaps the last to fully appreciate the fragility of democracy and to truly value it. Our modern politicians certainly do not, often treating the core tenets of democracy as inconvenient and as subservient to the needs of security and law enforcement.

Philosopher A.C.Grayling wrote, “A condition of genuine and effective democracy is a thoughtful and informed electorate, and one that actually bothers to vote” (2009, Ideas the Matter – a personal guide for the 21st century, Orion Books). He might have added “and one that actively protects and promotes the democracy it has”.

Which leads me to the central question of this essay, does a constitution written or unwritten guarantee the protection and promotion of democracy?

This question is especially pertinent in these post 9/11 times when in all of the modern liberal democracies including New Zealand there has been a marked erosion of liberty, freedom, privacy and rights in the form of anti-terrorism law, electronic crimes law, and search and surveillance law. This body of law has been adopted without an informed national discussion about democracy. Added to that have been the recent revelations about the previously unimaginable secret population-level electronic surveillance in some of those democracies; unimaginable in a true democracy that is. New Zealand is presently debating the granting of new surveillance powers to its own GCSB.

“An important feature of liberal democracy is that government should be transparent, because it is accountable to the people; the people cannot hold it to account unless they can see what it is doing”, (A.C.Grayling, 2007, Towards the Light – The Story of the Struggles for Liberty & Rights That Made the Modern West, Bloomsbury. London).

However we now rely on whistleblowers, criminal lawyers and a German entrepreneur to reveal to us some of what our supposedly accountable governments are up to. Widespread secrecy has crept upon us to become another organizing principle of democracy. The mantra of the new secretive democracy is “If you’ve got nothing to hide you’ve got nothing to be afraid of” – except for a slow slide out of democracy, or at the flick of a switch, a very rapid slide.

All of the liberal democracies are constitutionally established with the UK and New Zealand the two with unwritten constitutions. Yet in none of those democracies has the constitution prevented the serious erosion of democracy by politicians, police, security and intelligence agencies and a compliant media. In none of those democracies has the electorate been sufficiently informed and concerned in sufficient numbers to challenge and perhaps halt the anti-democratic tendencies of the establishment.

In New Zealand in recent years we have learned of repeated instances of illegal warrants, illegal surveillance, illegal search and seizure, and illegal detention and arrest by the New Zealand Police. That has become a consistent assault on the democratic freedoms of the people by the police yet government has not taken measures to protect the democracy and has instead legislated to extend the powers of police. Through their actions as opposed to their rhetoric the New Zealand Police have openly become an anti-democratic force in society, and politicians seem to be encouraging rather than restraining.

It was Benjamin Franklin, one of the founders of the much vaunted American democracy, who said that “he who would trade liberty for some temporary security deserves neither” (or something similar).

Do we not urgently need as a society to begin a conversation about how much freedom we are willing to forego in the name of security and law enforcement, lest by default we lose more than we collectively agree, before we realise it.

Following the great depression of the 1930s and on into the post World War II era the government and people of New Zealand entered into an unwritten compact that defined our democracy for a time. That compact put the well being of the people at the centre of government policy, with full employment, universal education and healthcare, and a welfare safety net the means to the fulfillment of that policy. During that period the greed of the wealthy was constrained, and the need of the nation as a whole given priority. In the years immediately after 1984 that compact was discarded as part of a new economic paradigm. In the nearly thirty years since 1984 the gap between the wealthy and the rest has widened enormously to the point that a massive inequality of wealth now also defines our democracy.

New Zealand lies at 10th on the list of income inequality in developed countries, just behind Australia.

We are in the process of replacing the princes and chiefs of old with an aristocracy of the rich. They are served by a compliant political, bureaucratic, economic and corporate priesthood of the Church of the New Economy. In these modern times rather than using brute force they maintain their hegemony over the people and over their minds through political and corporate propaganda (public relations and advertising), and a shallow and compliant media. Those of us who have the means have become mindless consumers and smart phone addicts, apathetic slaves to the consumer economy, rather than active and vigilant participants in a democracy. Those who do not have the means remain out of sight and unheard, both politically and economically distant from participation in the supposed benefits of a democratic society.

Should not the economic direction of the nation and the division of national wealth also be part of the conversation about democracy for reasons of fairness and concern for all of our citizens. And surely the lesson of history is that the greater the inequality of wealth (and power) the greater the discontent and propensity for political upheaval. Is this not a matter of democracy rather than economy.

For those who think that I am being alarmist about these matters of government surveillance and secrecy, and economic inequality, witness what is happening around the world as people express their discontent about those and other matters. In Tunisia, Egypt, Libya, Syria, Turkey, Brazil, Greece, the UK and many other places we have seen the trend towards mobilisation of the people through crowd media. The flash protest that is quickly organized through social media, and that sometimes escalates into a series of flash protests then violent confrontation, is becoming the primary means of citizen participation, given the deaf ear of governments.

The liberal democracies are not immune to this rapidly evolving trend. The Occupy movement in the liberal democracies was not a short lived aberration; it was just the beginning. It was a trial run if you will, as new ways of political participation and activism are developed around new ways of communicating. It can’t happen in New Zealand I hear you say. Well it did happen in the anti-apartheid anti-Muldoon civil uprising of 1981 and that was without the multiplying effect of social media.

Are the agencies of the Peeping Tom society routinely monitoring all social media and other electronic communication to detect terrorists, or is it to guard against civil activism and flash protest. In New Zealand we have ample proof that the police have placed civil activism high on their list of potential threats to society, or at least to the political and corporate elites, which is not quite the same thing.

I’m not ready to talk about the constitution. I want to talk about liberty, and freedom, and rights, and privacy, and participation. I want to talk about democracy.

Coming Next:
A proposal to protect and promote democracy.
NZ Parliament: Abolish the Pakeha Seats
The Treaty of Waitangi

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