Upton-on-line - Special Edition - The 'Hui From Hell'

SPECIAL REPORT: BUILDING THE CONSTITUTION CONFERENCE
(OR THE 'HUI FROM HELL')

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Upton-on-line has been holed up in the old Legislative Council Chamber taking part in the great constitutional debate sponsored by the Institute for Policy Studies. The great, the good, the aggrieved and the grumpy (or at least 117 of them) have been gathered together to ask two questions: what makes our constitution, and what should we now make of our constitution?

42 pre-circulated summary papers (plus one from Annette Sykes that was so important it couldn’t be summarised) provided the basis for debate. They can be accessed at http://www.vuw.ac.nz/inst-policy-studies/conf/conf.htm

The Conference has been utterly fascinating and utterly predictable. It started with an inability to agree on the membership of an 'agenda' committee. Annette Sykes’ proposal that Maori would be caucusing at the morning tea break to consider the membership killed it dead - to the relief of those who are suspicious of agendas.

It is abundantly clear that if any government thinks it is going to fiddle around with the constitution, it will run smack into a huge reef called the Treaty of Waitangi. The reef may not be marked on constitutional maps but conference attendees soon discovered that it totally surrounded the tiny atoll on which the assembled company was perched.

It was also patently obvious that there is nothing approaching a consensus on which any government could sensibly base even the smallest initiative (except perhaps replacing the Privy Council as our final court of appeal). Comments that “a long, difficult road lies ahead” were another way of saying that there’s no prospect of anything much happening. Upton-on-line wouldn’t dream of attempting a summary, but here are some of the more memorable comments:

DAY ONE

Helen Clark opened with a speech that artfully avoided endorsing any particular agenda save welcoming debate. She professed some sympathy for the old adage that “if it ain’t broke, don’t fix it” and conceded that there was nothing particularly broken about our constitutional arrangements.

But then she termed them quaint and suggested this was a reason they would inevitably be changed. This was short-hand for the republicanism she and others believe must come to pass if our national identity is to be secured.

That idea got short shrift from Professor Philip Joseph who made it clear that nationalistic breast-beating and constitutional reform should not be mixed up. One was for political feel good; the other was for real. Perhaps taking a cue from the Prime Minister, Sir Douglas Graham decided to describe the Treaty as quaint – which, applying the opposite logic, was the reason why it shouldn’t be fiddled around with or incorporated in our constitution!

All sorts of fascinating tid-bits emerged along the way. Professor Margaret Clark noted that one of the reasons the Seddon government didn’t federate with Australia in 1901 was Australian attitudes towards Aborigines and a suggestion that Maori shouldn’t be allowed to vote in Commonwealth elections. Professor Bill Oliver wondered whether if we’d been searching for our national identity for more than a century, perhaps it wasn’t anywhere to be found. In any case, he was a bit sceptical about national identities that became suffocating and authoritarian in the hands of zealots.

Professor Jock Brookfield, a stickler for balance and accuracy, suggested that although good colonial deeds couldn’t completely absolve the dark deeds of the past, the demonisation of colonial society should be eased back just a little bit to take account of the ending of slavery in Maori society and the end to tribal feuding that followed the Treaty.

The section on globalisation produced vintage paranoia from Professor Jane Kelsey who saw in every international treaty the interests of global capital. Professor Kelsey has the charming habit of smiling pityingly when any poor soul, fogged in by false consciousness, utters a naively pro-market comment. Tom Lambie and Jim Bolger got this treatment when they made noises about the value of the WTO and trade negotiations for our exporters.

But Professor Kelsey found herself in a tight finish with Annette Sykes for the most paranoid analysis. Sykes saw the entire enterprise of the New Zealand state as being one big plot at the expense of Maori. There was nothing for it but to completely re-think all law and economics. This made common cause with Moana Jackson who dissolved away concepts like property rights and the rule of law as myths that were dreamed up and then used to subjugate Maori.

Jackson seemed pretty edgy about people with dreams for the future, acidly noting that no-one has thought to check the bed these dreams were to be dreamed in – and that was a colonial bed that gave him nightmares.

On the wisdom of a written constitution, Sir Tipene O’Regan let fly at the dysfunctional, incompetent people who sat in Parliament and called for higher law to put some things beyond the reach of “the tyranny of the grubby majority”. Upton-on-line was more inclined to warm to Judge Mick Brown’s caution about the fate of the Irish wolfhound that was happily gnawing away at a bone only to discover it only had three legs left. Constitutionalising, he remarked, could be a self-mutilating business. He preferred a more incrementalist approach. This seems good advice.

The session on whether and how the Treaty of Waitangi should be incorporated more formally in our constitutional arrangements was the heaviest weather. Professor Raj Vasil’s truly wacky proposal for turning New Zealand into a federal state with four provinces (the northernmost one being largely Maori) was roundly rejected. But there was little agreement on anything else.

Sir Douglas Graham felt that there was little to be gained by adding a very old, simple – and to use that word again, quaint – treaty to formal legislation. Neither did Sir Douglas have much time for the notion of partnership meaning anything in the sense of shared governance. For someone who was always regarded as something of a radical in the National caucus, this was – in the context of the assembled company – wildly conservative. The gap between the informed and the masses had never seemed wider.

Moana Jackson explained that whatever was agreed at Waitangi, it did not extend to the cession of sovereignty by Maori. Shane Jones bravely wondered whether the Treaty didn’t need to be re-negotiated and warned against looking to the existing Treaty to deliver in a way that necessarily makes sense of the modern world.

The most impassioned, high octane contribution, followed from Professor Mike Taggart. How, he asked, can you think about re-negotiation when no-one speaks collectively for Maori. He found it difficult to see a way forward – in terms of re-negotiation – that wouldn’t simply end up undermining much that the Treaty has meant in the past. In a Burkean vein that appealed to upton-on-line, he suggested that we’re muddling through and that that’s not such a bad way forward if the alternative was rebellion and car bombs. Powerful stuff.

The toughest question was posed by Alex Frame. Didn’t we have a problem, he asked, with the fact that the Treaty had been signed by Maori and the Crown? If we got everyone together and asked Maori to go into one room, and all the other into the rest what would we have? The room full of Maori would be just that – descendants of one signatory. But the other wouldn’t be the Crown. And those who shelter under the Crown, Frame suggested, would feel that Maori should be there as well.

Upton-on-line respectfully suggests that this is the big question. Maori versus the Crown is, in practical political terms, Maori versus the entire population including Maori. In other words, Maori are legitimately on both sides of the fence at once. And that’s the on-going constitutional basis for keeping the body politic together. Get rid of the idea of the Crown – as Clark, Bolger and so many luminaries suggest, out of enthusiasm for identity – and you pull apart the fiction of an entity that enfolds within it and protects, both peoples. Some of us would rather not have to troop into different rooms.

This was all heady stuff, and it was at around about this time that upton-on-line glimpsed Dame Cath Tizard seeking relief in the Electronic Telegraph’s cryptic crossword.

Dinner (courtesy of Russell McVeagh) brought an address by His Excellency, Rt Hon Jim Bolger fresh from Admiralty Circle, Washington DC, North West. Bolger had clearly put a great deal of effort into his speech which re-launched his campaign for a Republic. This he sagely noted was easy compared with written constitutions (of which his American experience has made him mercifully sceptical). But just in case we were lacking challenges, he urged a good think about political association with Australia. We staggered home to bed in a more complicated country we’d woken up in that morning.

DAY TWO

Commenced with the Republican debate focussed around who would be the head of state. Much of the debate followed predictable lines. The most progressive thinking came from Professor Choudhary who suggested that the head of state should alternate between Maori and non-Maori. Manu Paul went the extra mile and proposed that it should be permanently Maori, objecting to the unreasonable pakeha expectation that Maori should fit within a European model. It should be the other way round and a good start from pakeha would be a major leap of intellect and generosity.

The most penetrating (and technically knowledgeable) contribution came from Professor Alison Quentin-Baxter who pointed out that behind apparently simple calls to discontinue a constitutional monarchy lurked hugely complex details. The Cabinet Secretary Marie Schroff made a powerful (and well placed) plea for a neutral and independent head of state, particularly since the advent of MMP. Hear, hear to that – just in case any republican promoters see themselves running for an elective presidency!

Andrew Ladley made a point upton-on-line has stressed ad nauseam to those who witter away about republicanism as though it was an easy (and minor) step. Maori signed a treaty with the Crown. Once the Crown’s gone, who are they dealing with? The fact is that the Crown acts through the executive in Parliament. Does abolishing the Crown mean Maori then have to deal with the parliamentary majority as its partner? The status quo would be better than that, I’ll vouch.

The session on the cabinet and public sector frequently bore little relationship to the subject (apart from Graham Scott’s sensible observation that `free, frank and fearless’ advice could do with a little constitutional protection). Instead we got back into the Treaty debate.
Professor Winiata suggested that Maori cabinet members should caucus separately and that cabinet votes should require the agreement of Maori and non-Maori members. This led Moana Jackson to muse about the unsatisfactory nature of `one person, one vote’ as a way of structuring a democracy. There were pre-existing rights that majoritarian rule could not extinguish.

Mai Chen then made the longest intervention of the conference and still hadn’t stopped when her extension of time had run out. She managed, ingeniously, to agree with everyone from Manu Paul and Annette Sykes to Graham Scott and David Caygill constructing, in the process, something that was the intellectual equivalent of Holy Trinity cathedral in Parnell, Auckland. Process would hold everything together she intoned, notwithstanding substantive differences that seemed to upton-on-line Grand Canyon widths apart.

There was only 15 minutes for local government but it was one of the feistiest moment of the entire conference. Roger Kerr put the boot into a proposal for granting local government a “general power of competence”. Stephen Franks weighed in claiming that the papers by Carol Stigley and Sir Ross Jansen provided “a breathtaking crystallisation of the level of naivety that characterise[d] much of the conference - and if that gives offence, I intend it.”

Sir Ross rose boldly to the challenge, admitted many local government failings but noted similar disasters in the corporate area. As for voter participation, he asked, how many people went to company AGMs. Mr Franks’ (entirely reasonable) objection that he could sell any shares he owned in a dud company but couldn’t avoid his rates bill in a similar way, was drowned out by the populist thrawl. Sir Ross had become the scourge of the New Right and the bouquets rained down.

The focus moved next to Parliament and electoral reform. Dr Catt, in the spirit of things, proposed that the passage of laws could possibly require a majority of Maori and non-Maori votes. 15% only of MPs being Maori wasn’t enough. Should we think about re-drawing electoral boundaries so they focused on maximising the number of seats with Maori voting majorities.

The Conference was brought back to earth by Judge Mick Brown who sagely remarked on the human capacity for self delusion. The good Judge received the only truly popular extension of time for the whole conference (people were too polite to say `no’). Noting that there were still people in Northland living in tin sheds, he worried that lawyers (needy though indeed they were) might be intercepting some of the money that should be destined for them.

Then it was on to the Courts. The debate was around the future of appeals to the Privy Council and judicial activism. Roger Kerr’s confidence that the Privy Council was likely to be a bastion against law making judges was pretty unanimously rejected by the lawyer laden audience.
Sir Geoffrey Palmer and Sir Douglas Graham both plausibly argued that Parliament is probably most to blame for policy making judges through passing complex and/or incomplete law that then create a field day for judges and lawyers alike.

The Solicitor-General, John McGrath QC, believed that support for the Privy Council tended to depend on whether or not you thought it would deliver the view you were looking for. Professor Whata Winata confirmed this hunch by saying that he backed it since it had favoured Maori in the radio frequency spectrum case.

Jane Kelsey claimed that she had detected a general acquiescence by the conference in `plurality’ of governance (!) and took the opportunity to note that it would have to carry through to the judiciary. Sir Douglas Graham stoutly defended the quality of our judges but expressed concern that his experience of trying to appoint them left him in no doubt that people of sufficient quality were hard to come by. He’d had to make many phone calls at all levels to keep the hopper primed.

This led to mild apoplexy amongst the Maori women lawyers present who had not, apparently, received any phonecalls. Annette Sykes (who informs me there are more than 200 female Maori members of the impression) had only just told the conference that there were no Maori women judges which sat uneasily with the fact that in Maori society “the decision makers [were] very much the women.” Upton-on-line couldn’t see too many kaumatua from his vantage point, but no old warrior rose to deny it.

Afterthought…

And at this point – with one session left – upton-on-line had to go off-line and leave the dwindling band to their conclusions. But the drift was clear. There is no minor, painless constitutional titillation possible (the Prime Minister’s view on quaintness notwithstanding). Any change will open a major debate on the Treaty. And on that subject things are as clear as mud.

This is territory which Attorney-General Margaret Wilson should enter very cautiously – if at all. There are quick sands that will swiftly swallow up ill-prepared progressives who wander off the leash. That in itself might be no bad thing. But it would be a more serious matter if they dragged the country with them.

Finally a cautionary tale from Aristotle:

In his 'Constitutions', Aristotle tells of the ancient Locrians whose founding constitution required any citizen proposing an amendment or new legislation to stand on a stool before their Assembly with his neck in a noose attached to a sacred oak. The stool would be kicked away if the response was 'no'.

Aristotle records that no new laws had been passed in the preceding 200 years.

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