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be-brave
May 15, 2017 | by  | in Features |
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To Be Brave and Imaginative: Transforming our Constitution

Say a word enough times and it starts to lose its meaning, and just becomes sound. The word “constitution” is the opposite, where it’s hardly heard and is so alien that it too is just sound. In an attempt to give meaning to this word, we ask — what is a constitution?

Two esteemed constitutional lawyers and professors are deeply concerned with this question: Sir Geoffrey Palmer and Moana Jackson. Last year, Palmer released A Constitution for Aotearoa New Zealand, co-authored with Andrew Butler. 2016 also saw the release of He Whakaaro Here Whakaumu Mo Aotearoa, the report of Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation convened by Moana Jackson.

Despite a shared interest in the word “constitution”, and both having studied at VUW a little while ago, Palmer and Jackson’s respective constitutional visions are fundamentally different. Palmer argues for constitutional change, and his book aims to “set out in an accessible form and a single document the fundamental rules and principles under which New Zealand is to be governed.” Jackson, on the other hand, argues for constitutional transformation — a further-reaching process that would fundamentally shift New Zealand away from 170 years of colonisation to a society governed in accordance with Te Tiriti o Waitangi and He Whakaputanga o Nga Rangatiratanga o Niu Tireni.

Before elaborating their perspectives, it seems important to return to foundations. Palmer’s approach is tied to the idea, imported from Europe, that a constitution sets the boundaries of relationships that comprise the state. For Jackson and Matike Mai, on the other hand, it’s the relationships that come first: “It has to be based on the relationships between people, the nurturing of the land, and so on. If you start from there, then the conversation goes in quite a different direction. […] If you start with a model, it becomes very hard to decide what values, because the model presupposes some values. But if you start with the values, the model will hopefully reflect those values.”

***

Moana Jackson offers an accessible definition of a constitution: “[It] is the way in which people make decisions, and every culture has its own way of doing that — the constitutional system in England is different from the constitutional system in Russia, and so on.” Here a difference is drawn between the “clear constitutional system before 1840” by which Māoritanga was organised — one based on tikanga and kawa (the jurisdiction of the marae) — and the way decisions are made today. Two spheres can be drawn: “tikanga, or Māori law, [which] has been here for centuries; and the common law Westminster system which has been here for 170 years.”

The Westminster system arrived on boats with the colonising British, and its sphere of influence was expanded through the violence of the subsequent New Zealand wars. The New Zealand Constitution Act 1852 was a British statute granting the fledgling colony the right to govern itself, but UK law was transplanted to New Zealand insofar as it was relevant. The legislative powers of the UK stretched to New Zealand until our ratification of the UK Statute of Westminster Act 1931, which we waited until 1947 to do. The residual colonial power was abolished with the Constitution Act 1986, though, according to Palmer, it “was [already] whittled away to almost nothing.” However, he adds, “I think that one of the things you have to remember about New Zealand is that its colonial origins sit fairly heavily upon it still. We inherited this system, it gradually changed, developments occurred, but actually it owes its structure, still, to the Constitution Act of 1852 in many ways.”

To gloss over 170 years of troubling and dire history, which saw the sphere of influence of the Crown expand at the expense of the rangatiratanga, we arrive at the current way public decisions are made: New Zealand’s constitution appearing a hazy patchwork of concepts, legislation, and custom. Most of our “unwritten” constitution is written down, but in a number of disparate and different places — the Magna Carta, the Treaty of Waitangi, the Cabinet Manual, the Bill of Rights Act, etc. As Palmer and Butler suggest in A Constitution for Aotearoa New Zealand, it is “dangerously incomplete, obscure, fragmentary, and far too flexible,” and an interested person “cannot find a clear and coherent statement of the whole framework within which political decisions are made.”

Key to the idea of a written constitution is that it cannot easily, or arbitrarily, be changed — it is a fixed set of rights and structures. Constitutional “conventions” in New Zealand may change or be eroded with practice, because they are not legally binding. Many elements of New Zealand’s current constitution, enshrined in statute, could be expressly or impliedly repealed by a simple majority in parliament. Although our judges can make a declaration of inconsistency with the Bill of Rights Act, they cannot invalidate a law on grounds of unconstitutionality.

In conversation, Palmer believes that conventional or traditional ideas about New Zealand’s constitution no longer cut it: “I remember they considered this way back in the early ’50s about whether they should have a written constitution and they said, ‘we’re British, we don’t need it.’ New Zealand doesn’t look very British to me.” However, in the spirit of clarity, Palmer and Butler in their book state that “New Zealand would remain in the Commonwealth. New Zealand has secured many advantages from its British connections over the years and these can be maintained, but we need now a more defined sense of our own national identity as an independent nation in the area of the world in which we live.” Palmer envisages a constitution that “anybody who comes here ought to be able to pick up and read and sort of figure out what the place is about,” but suggests “one of the problems is that we don’t seem to know what it’s about ourselves. It’s sort of an incompletely theorised agreement.”

There is a sense, when we talk to Palmer, that the future weighs heavily upon him, especially in light of international political developments. Unprompted, in the first two questions we ask, he brings up Donald Trump and Brexit. “One of the things you realise if you’re a minister is how fragile democracy is, and how buffeted a small country can be by the winds of change internationally.” Here it feels that the desire for a written constitution is a reaction — not in a negative sense necessarily, but a reaction nonetheless — to the failure of an uncodified democratic system, and the risks it entails. “At the moment, our Bill of Rights is not enforceable against the parliament. They can override it and they do and they have done in 37 occasions in the 25 years that we’ve had the Bill of Rights.”

Palmer cites in particular the 2012 Atkinson case. In that case, the Court of Appeal found a Ministry of Health policy financially privileging non-family caregivers of disabled people over family caregivers to be discriminatory. This result was immediately overturned by Parliament in the New Zealand Public Health and Disability Amendment Act 2013, which was introduced under urgency and passed in a single day, without public consultation or select committee scrutiny. The Act prevented anyone from being able to bring proceedings against the government for any policy regarding family carers, and excluded the ability to seek remedies for past discrimination.

In this fragility one can see the real value of, and urgency for, a codified constitution, to prevent what Palmer told us was a “travesty of democracy.” However, there are other areas where his proposal feels lacking, rooted firmly within a Westminster model, unable to adequately accommodate any reassertion of what Moana Jackson calls the “rangatiratanga sphere of influence” in light of the Waitangi Tribunal’s 2014 finding that “the rangatira did not cede their sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their people and within their territories. Rather, they agreed to share power and authority with the Governor.”

Palmer and Butler address the Treaty of Waitangi in chapter seven of A Constitution for Aotearoa New Zealand. They outline the various levels of legal legitimacy it held before it was finally given “statutory recognition by the Treaty of Waitangi Act 1975, which created the Waitangi Tribunal.” Palmer’s perspective on the Treaty is that it is a founding document to be incorporated within his proposed constitution. He and Butler endeavour to clarify the exact way in which the Treaty would be legally recognised in the hopes of bringing “much needed coherence and consistency to a legally untidy situation.” For Palmer and Butler, “the best way of viewing the constitutional significance of the Treaty of Waitangi is by looking at where it sits in the operation of New Zealand’s constitution in practice today.”

Palmer told us that following their 2013 inquiry, A Constitution for Aotearoa New Zealand addresses issues brought up by submissions by Māori, “by putting the Treaty as part of the constitution, making it enforceable, and ensuring that the text of it cannot be changed by a constitutional amendment.” This is seen as an attempt to secure the Treaty’s legal legitimacy and standing. We asked Palmer what discussions he’s had with iwi and hapū, and he responded by saying, “we haven’t had any discussion with them, though I read the Moana Jackson report [He Whakaaro Here Whakaumu Mo Aotearoa] at great length, which is a very interesting report. We cite that in the book. We explain that there will need to be very adequate and much more extensive consultation with Māori than has taken place in the past.”

***

In a 2010 interview in Weeping Waters, Jackson highlighted that it was imperative to begin a constitutional discussion with “Māori speaking to Māori.” Matike Mai Aotearoa was created in 2010 at the Iwi Chairs’ Forum at Haruru to foster that debate: “Some of the old people at the end of that day said: we always seem to come together and react to what the Crown does, perhaps it’s time to restart the constitutional discussion. So they set up a constitutional working group.” The Matike Mai Working Group spent four years talking with Māori from across the country: “We had 252 hui, we had a rangatahi group which had 70 wānanga, hundreds of hours of transcripts and submissions, and then we wrote the report released last year.”

They believe that rather than being incorporated into a constitution, the Treaty ought to be foundational for a constitution for Aotearoa. When we spoke to Jackson he explained, “being based on the Treaty doesn’t mean you take the Crown system which has come from England and try to incorporate the Treaty into it — you need to find a different system based on the Treaty relationship.” Jackson goes on to reiterate that, although “our people might not use the word ‘constitution’ in their everyday conversations, (I don’t think anyone does),” kōrero around the governance of this country, of power and powerlessness, and the history of injustice still endured by Māori today, isn’t new.

Jackson draws attention to a document cited less often than, but that is “inseparable” from, the Treaty: He Whakaputanga o te Rangatiratanga o Niu Tireni, the Declaration of Independence of 1835. It was issued to the Crown by He Whakaminenga, an assembly of hapū in the north, and Jackson described it as a “statement to the world that ‘we are an independent peoples’ and, as one expression of that, iwi will continue to make independent decisions; but as another expression those iwi who wish can come together as part of He Whakaminenga and make joint decisions without giving up their own mana.” The report of Matike Mai cites He Whakaputanga and Te Tiriti o Waitangi as two pillars that their iteration of a constitution would be based on.

In Weeping Waters Jackson references the Bolivian constitution as a helpful example to consider when thinking about constitutional transformation. When we asked him if it provided a suitable model for New Zealand to follow, he replied, “I’m not sure it offers a model, but it offers a really good constitutional philosophy, if you like. […] What indigenous constitutional systems tend to be based on is the rights of individuals, exercised with collective responsibilities — that is that the individual is part of a wider collective, and that collective is part of a wider relational jurisdiction, which involves relationships with the land, the waters, the sky, and so on.” The dominant aspect of the Bolivian constitution, for Jackson, is that it demonstrates that it is practical and possible for a constitution to acknowledge indigeneity as more than a crucial aspect to be included, but integral to the document as a whole; where a constitution “doesn’t start with parliament or members of parliament: it starts with the earth.”

The language concerning the environment and its protection often frames the environment as a commodity. Western models of “environmental rights” fail to legitimise the ancestral connection between the environment and people. Jackson points to the limitations of the English language (and in turn, cultural imagination) with trying to capture Māori concepts and tikanga. If the language itself is inadequate, then legal documents  — such as a constitution — aren’t going to get any closer.

We asked Jackson whether he saw the granting of the Whanganui River and Te Urewera legal personhood as a step towards reframing the environment according to tikanga Māori: “The notion of the river being a legal person is not a Whanganui description, it’s a Pākehā law description. People of Whanganui, like every iwi, regard the river as part of them, as part of their whakapapa. We talk about Te Awa Tupua, that is the ancestral river. So in Whanganui they say, Ko au te awa. Ko te awa ko au — I am the river, the river is me. What they wanted the Crown to do was to find some way in English, if you like, of capturing that idea. And the closest the Crown could come up with was that the river would have a legal personality. […] I think that’s important to be clear on how our people see it; it’s not a legal person, it’s part of who we are.” Though these developments are positive steps, they are fundamentally limited by current political and legal structures; these structures are what a constitutional transformation would upheave.

***

Palmer states that his project aims to provide New Zealand with a cohesive, stable, and binding document: “The essence of this project is to improve the standard of governance; it can’t produce perfection. You shouldn’t oversell it, we’re not going to get utopia through this, but we should get a better system of government that is more principled and more effective, where there are better checks and balances than we have now.” There are still more editions to be released, more consultations to be done, and changes to be made before it is presented to parliament: “But I don’t want to encourage that until we’ve got a final product that we think is worthy of consideration. This book isn’t that product.”

Matike Mai’s mahi will continue long term (2040 is the goal for some form constitutional transformation). For Jackson, it’s a process: “What our people are talking about in Treaty terms is ‘can we be imaginative and brave enough to think of something different based on the Treaty?’ and that’s why our report talks about constitutional transformation, rather than change. It’s transforming the constitutional landscape to be based on the Treaty.”

When asked about claims that Matike Mai’s vision may be unrealistic, Jackson replied, “Realities are created by humans, and the current constitutional reality cited in parliament has only been here 170 years — [it] was made by humans. For hundreds of years prior to that there was another reality, created by a different group of humans, which colonisation sought to destroy. And another reason why the Bolivian constitution is such a worthwhile model or process is because they were colonised by Spain over 500 years ago. So they had over 500 years of reality to change and when they started talking 30 years ago, when the indigenous peoples there started talking, they were told ‘it’s unrealistic. We have this profound, beautiful, Spanish constitution.’ But I’ve always thought that every change is a shift in reality.”

We’re unsure how to end this piece. We are grateful to Geoffrey and Moana for talking with us: you opened our eyes. There are lines at the end of Ka Whawhai Tonu Matou: Struggle Without End, first published in 1990, that may be appropriate. The late historian Ranginui Walker saw the future as something to turn toward with face upturned: “For the Māori, the inheritors of a millennial culture, theirs is a struggle without end into the world of light. They know the sun has set on the empire that colonised them. They know too it will set on the coloniser even if it takes a thousand years. They will triumph in the end, because they are tangata whenua.”

 

— By Brigid Quirke, Georgia Lockie, Laura Toailoa, and Tim Manktelow

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Salient is a magazine. Salient is a website. Salient is an institution founded in 1938 to cater to the whim and fancy of students of Victoria University. We are partly funded by VUWSA and partly by gold bullion that was discovered under a pile of old Salients from the 40's. Salient welcomes your participation in debate on all the issues that we present to you, and if you're a student of Victoria University then you're more than welcome to drop in and have tea and scones with the contributors of this little rag in our little hideaway that overlooks Wellington.

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