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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Does 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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