A letter to Edward Snowden

Dear Ed Snowden
Given the amount written about you online already, I doubt that you will read this. But, if you do, I first want to thank you for what you have done for the world, and to express my admiration for your courage.
I am writing to you now, though, to encourage you to turn yourself in to the US authorities. Why?
You say in a recent article that you 'will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that [you] love are revealed even for an instant.'
But, by hiding from the law, you are only frustrating its potential for openness. By secreting yourself in a room in Hong Kong, you are seeking a special 'pardon' of a sort for yourself. This 'pardon', however, comes with no regard for law, even though, without test in any court of law, you claim (and I wish to agree) that you 'have done nothing wrong' – in the wider sense of right and wrong. By evading the American executive powers of which you are justifiably the critic, you reveal the limits of your own courage, you deny those powers the opportunity to show us if they are capable of true justice, and you deny yourself the opportunity to complete the job of being their critic.
For all of its imperfections and its abuses of power, the US is the country that raised you and gave you the extraordinary privilege of access to its secret information, and hence also made it possible for you to speak to the whole world today. The debt you owe your country cannot be repaid, and hence you have an obligation to front up to your country's powers now and let them process your case as they will. You should not run away now – least of all to be a burden on Iceland, nor even on China.
Your duty now is to appear before a US court and to argue your case: the case that you have done no wrong. Of course, you will probably be found to have breached the law, but you knew that at the outset. If you fail to persuade the courts of your innocence, you should follow the advice of Socrates and 'endure in silence whatever [your society] instructs you to endure'.
If you really believe in justice and openness, that's what you will do.
I wish you the best
Grant

Green Effluent

Russell Norman's tirades against the Key government ('unstable, unethical, Muldoonist' and so on) have to be taken with a grain of salt, as it may not be long till the Greens wind up doing deals with conservative governments of the future. Don't believe me? Well, let's recall for starters that, during the 2011 election campaign, Dr Norman was the one showing off his credentials with small (petit-bourgeois) business and there was speculation about the Greens entering some form of support agreement with National after that election. Of course, that never came to pass. But, the signs of their emerging pragmatic conservatism are clear. Whereas, once upon a time, the Greens would have relished the leaking of an investigation into a spy agency, today they are insisting that such a leaker be brought to justice!
The real test for the Greens will come when they finally gain office, probably in coalition with Labour. The narrative is fairly predictable. A foreign-policy crisis emerges when one of our allies (probably the US) starts another of their dirty little wars and calls on NZ for moral support. Being smarter than the Alliance Party of the past, the Greens will find some 'humanitarian' or 'global responsibility' blather with which to justify the bombardment of innocents. Alternative 'flash-point' issues could be a 'free-trade agreement' or a mining proposal, but there'll be the same sleight-of-hand.
In the meantime, older radical greens calling for systemic political-economic change will have been sidelined in favour of a softer look more appealing to urban yuppies: 'environmentally responsible consumption', 'eco-friendly business', 'fair trade' etc will be the kinds of slogans one can anticipate. Oh, and don't let them forget, along the way, to knee-cap their grass-roots supporters at annual conferences!
Once the Greens lose office in their red–green coalition, the obvious political strategem is to try to move into centre-stage – rather than occupy the semi-redundant 'far left' (as John Key recently identified them) – so that they can begin to play one major party off against the other after elections farther off in the future. (Well, it worked for Peter Dunne!)
Wait, then, for the day when a Green Party blocks the formation of a centre-left government by agreeing to support National on the condition that a few blue–green initiatives (like insulating mouldy old houses) get thrown their way, and the Greens promise not to rock the free-market boat.
In a world where Green Parties have lost their radical ecological and emancipatory roots, such a pragmatic progression, in pursuit of power, is oh-so predictable. This is the only way that the Greens can achieve what has previously been impossible for small parties supporting larger ones in government in NZ so far: that is, to gain office and not to lose voters' support at subsequent elections (or, more precisely, to trade radical-left voters for the more numerous middle-income yuppy ones). The Greens can only survive a spell in government by taking this painful step towards the centre – a step that will undoubtedly cause them plenty more painful internal symptoms.
Is there a doctor in the House?

Peter Dunne's resignation as minister

Mr Dunne's resignation as a minister has been made on the grounds that he was unwilling to meet all the requests for information made by the investigation into the leaking of the Kitteridge report on the GCSB. This does not conclusively prove, but it does at least lend strong support to, the accusations made earlier by Winston Peters that he (Mr Dunne) was responsible for the leak. The report (out today) by David Henry into the leak isolates, by a process of elimination, Mr Dunne. The Henry report says that Mr Dunne was not prepared to show Mr Henry unedited texts of all of the 44 emails he sent to the reporter who revealed the contents of the Kitteridge report in the media.
Mr Dunne's resignation is appropriate. There is still a possibility that he personally was not responsible for the leak, even though he was in contact with the reporter. For example, he could be covering up for someone else. But the refusal to co-operate with Mr Henry is enough to justify his resigning, as it leaves a cloud of suspicion over him. And, as a minister, that is unacceptable.
The resignation does not resolve any of the concerns surrounding the continued recognition of his (now de-registered) political party in the House. He continues to sit as an MP, and, according to the Speaker, as leader of a party. But it's looking like his political career is approaching an end, as it is hard to see how he can survive the next election after this.

Recognition of United First

Now that the United First Party has been de-registered - and is seeking re-registration - as a political party with the Electoral Commission, should it still enjoy recognition as a party in Parliament?
Clearly, opposition parties think that it should not have recognition, and that Peter Dunne, leader of United First, should be treated only as an independent MP, and thus have his parliamentary funding as a party leader removed.
My first reaction was to agree with the opposition parties, but a closer look at the Standing Orders of Parliament is warranted. Registration as a party with the Electoral Commission (to stand for the general election) is administered independently from the Speaker's recognition of a party in the House. United First was presumably legally registered for the 2011 election, and Peter Dunne, its leader, was duly elected as a member. After the election, the Speaker recognised United Future as a party 'for parliamentary purposes' under standing order 34(1). To spell it out more fully, though: 'Every political party registered under Part 4 of the Electoral Act 1993, and in whose interest a member was elected at the preceding general election ..., is entitled to be recognised as a party for parliamentary purposes.'
Note that this recognition by the Speaker is for parliamentary purposes, and not for electoral purposes.
The Standing Orders are silent on what should happen if a party de-registers with the (independent) Electoral Commission in mid-term, thus jeopardising its eligibility to stand at the next election (as distinct from 'the preceding election').
But the phrase 'registered under Part 4 of the Electoral Act 1993' in standing order 34(1) is crucial. It was introduced with the 2011 amendments to the Standing Orders. Part 4 of the Electoral Act deals with the registration of political parties and the Electoral Commission's duties in that process. And 34(1)'s requirement of registration seems to apply in the present-tense, and not just for the (past-tense) purposes of 'the preceding election.'
So, if United Future is not presently registered with the Electoral Commission as a political party, then it cannot (for the time being) be recognised as a party for parliamentary purposes. This has consequences for the parliamentary funding that United Future may be entitled to. Even though the time that elapses between United Future's de-registration and its (probable) re-registration may only amount to a few weeks, a deduction from its MP's parliamentary funding could be called for.

Electoral Matters

This post is part of my submission to the 'constitutional conversation'.

How many members of Parliament should we have?

 There is no formula for answering this question. But I see no compelling reason to change the number at present. As the population grows, however, we need the option of increasing the number of members. If not, the alternative is either to increase the population-size of electorates (so as to limit their numbers), or to see the proportionality of parliaments decline (as the number of list seats reduces). A written constitution could provide a mechanism for rationally deciding on the number of MPs in future.

How long should the term of Parliament be?

 The public debate appears to be mainly around the options of either 3 or 4 years. In a unicameral system with minority governments, three years makes more sense, as it allows for more frequent democratic mandates and reduces the risk of governments losing confidence-votes and hence of early elections.

How should the election date be decided?

 It should not be the prerogative of the Prime Minister to decide on the election date (within the three-year maximum), as this gives the incumbent party an unfair political advantage and a constitutional power that is not strictly theirs to wield. Election-dates should be fixed – unless a government loses a vote of no-confidence or the Governor-General is forced for some other reason to dismiss a government before the fixed term is up.

What factors should be taken into account when the size and number of electorates are decided?

 As MMP has been reconfirmed by the 2011 referendum, then proportionality must be an overriding factor. The ability of citizens to approach their electorate MP in person is also important, and so the physical size and population of electorates should be taken into account. In as much as possible, electorate boundaries should reflect the geographic integrity of local communities.

What should happen if a member of Parliament parts ways with the party from which he or she was elected?

 See my earlier post on this topic in relation to one recent case.

 It does matter whether the MP is a list or an electorate member. If an electorate member, then, even though that member’s mandate to sit in the House comes on the back of his or her membership of a political party and is not purely a personal mandate, the member was personally elected and retains his or her seat. If it’s a list MP, then there is a stronger argument to say that the member should resign from parliament and be replaced by the person next on the party list.

 A defection from a party can adversely affect the party’s hard-earned proportionality in the House. And an independent member in the House may be less than effective and may or may not vote in line with his/her former party. This is unfair on the party that brought them into parliament in the first place.

 On the other hand, there is a concern that party leaders could use the threat of expulsion from caucus, and hence expulsion from parliament altogether, as an undemocratic means of silencing dissent. The public can, of course, make up their own minds about this and render their judgement on that party’s behaviour at the next election.

 On balance, then, list MPs who part ways (for whatever reason) from their party should automatically lose their seats in the House, to be replaced by the next in line on the party list.

 This should not apply to electorate MPs, however, as we are not able to judge to what extent their local-electorate victory was due to a personal following, or to a party affiliation. Either way, voters in the electorate have voted for that named individual to represent their electorate. Hence that MP’s party membership is not their sole claim on the seat.

Who-Dunne-it?

Winston Peters has used the cover of parliamentary privilege to accuse Peter Dunne of having leaked the Kitteridge report into the GCSB. But, at the time of writing this, I have yet to hear of Mr Peters producing any evidence to back this up.

Unless Mr Peters has some credible evidence, we should treat his allegation against Mr Dunne as nothing but political theatre. His surprise attempt to embarrass Dunne in front of a parliamentary select committee could have been intended to damage one of the links supporting the National-led government.

As for Mr Dunne, he has denied leaking the report, and I can see no political reason why he would have done so. What could he have gained from it, as against the risk of being found out?

In the meantime, we should await the results of the investigation into the leak of the Kitteridge report. Maybe we’ll find out one day who did leak it. But, from the point of view of the average citizen, it really makes no difference ‘who-dunne-it’. The Kitteridge report was going to be released at later date anyway.

Māori Representation

This post is part of my submission to the 'constitutional conversation'.

How should Māori views be represented in Parliament?

The immediate constitutional question behind this is whether New Zealand should retain a Māori electoral roll and Māori seats. See my recent post on the Māori seats.

The Māori electorates have been criticized for being tokenistic and ineffective in representing Maori views, on the one hand, and racially separatist and a form of special treatment for a minority, on the other. Their existence is evidently controversial, but neither of the main two political parties has been determined to terminate them, each for its own well-known political reasons. The Māori seats have, however, made it possible for the Māori Party to make a difference in parliament and government, and this has been a beneficial political development.

The existence of the Māori seats has become, however, inconsistent with the principle of an equal and non-discriminatory right to vote. There was good reason to introduce them in 1867, as Māori were effectively disfranchised by the electoral system of that era. The problem identified at that time no longer exists, and it can only be a matter of time before the Māori seats are abolished.

The question is how much time, and this is a matter that should not be forced through. Māori seats should remain in place until such time as Maori are prepared to relinquish them. They should not be entrenched in a written constitution, as they should be regarded as a ‘temporary measure.’ Article 3 of the Treaty grants to Māori equal rights as ‘British Subjects’ – which we must now read to mean ‘New Zealand citizens’ – and they are bound by the law, including the electoral law, in the same manner as other citizens. The Māori seats appear to be an exception to this Article. They may be consistent with Article 2, at a stretch, however. But the letter of the Treaty does not compel us to retain the Māori seats, nor to entrench them in a written constitution.

A ‘bicultural’ upper House is not recommended either. The idea that Māori are the ‘Treaty partners’ and therefore should be represented in a special 50/50 bicultural forum, over and above the House of Representatives, is not justifiable. There is nothing in the Treaty to directly mandate such an institution, and the idea diverges too far from the principles of proportionality in the legislature and equality among voters.

The representation of Māori views in parliament is not only a question of having or not having special Māori seats or forums, however. The answer to this question is largely political and goes beyond the constitutional scope of the present ‘conversation.’ There are 20 Māori MPs presently, seven of whom represent Māori seats. It is thus up to all political parties to represent Maori views, according to their own processes and policies, and to be accountable to voters for that.

How could Māori electoral participation be improved?

Māori electoral participation, notably in the Māori electorates, is particularly low. Voter turn-outs have been dropping in recent decades across the board, and this is more pronounced among lower socio-economic groups and the young. The low participation rates by Māori are unfortunately consistent with that. No-one to my knowledge has come up with an effective way to raise voter turn-outs, however, and the problem is a deep-seated one that must be addressed politically. Again, I see this question as being a political question, rather than a constitutional one. There is no strictly constitutional solution to this at present, as the Electoral Commission does all it can to encourage people to register and to vote.

How should Māori views and perspectives be represented in local government?

There is presently a statutory provision for Māori wards in local government, but so far only one local authority has adopted them. The Auckland Council was denied them, controversially, in its empowering legislation.

Effective governance at the local level needs to take into account the authority and cultural values of mana whenua, and so some means of representation of Māori views should be routine. There is no compelling case to force all local authorities to have Māori wards, however, either in statute or in a written constitution. Locally appropriate democratic and consultation processes should be found to include and represent Māori views, or to ensure the election of mana whenua representatives to Councils.

As for the role of a written constitution, then, it may be necessary to go beyond the ‘bottom-line’ principle of non-discrimination in regard to the local representation of indigenous communities. This should not go so far as to entrench Māori local wards. But a constitution could at least permit such solutions, in as much as they are considered appropriate for the time being by a local authority, and in the interests of rectifying disadvantage or under-representation. Such wording would need to be consistent with the UN Convention on the Elimination of Racial Discrimination, which allows for ‘special measures’ for groups that have suffered past discrimination.

Thus, if a local body chose to adopt Māori wards, then the measure would at least not be unconstitutional.

In addition, Treaty settlement negotiations will still create possibilities for local iwi/Crown co-governance arrangements, for contracts with government for by-iwi-for-iwi service delivery, etc. But these are matters for negotiations and do not require a mandate in a written constitution.

How would the Treaty of Waitangi fit in a written constitution?

This post is part of my draft submission to the 'constitutional conversation'.

What future role could the Treaty of Waitangi have in our constitution?

The Treaty is a product of negotiation between iwi/hapu and the Crown, and should be preserved as such, to the extent possible. From time to time, parliament must pass laws that empower Treaty settlements and/or that require consistency with the principles of the Treaty, and the courts have to apply that legislation. The Treaty is one key historical source of our constitution (along with other documents such as the 1688 Bill of Rights and the 1852 NZ Constitution Act) and hence will always be acknowledged to have a place in our constitution, in the broader sense of the word. The Treaty is not, however, a charter for the principles or institutions of government and law, and so it needs to be kept in perspective.

Should the Treaty be made a formal part of the constitution?

A clear and up to date restatement of the basic principles of the Treaty could be made into a formal part of the constitution, perhaps in a preamble, but not the full verbatim text of the original Treaty.

These basic founding principles that derive from the Treaty should not depart too far from the three articles themselves, and hence might be in a form something like this:

The Crown originally gained the right to form a government in New Zealand in 1840.

The Crown is thus bound to protect the mana, valued possessions, customary rights and cultural practices of tangata whenua.

The Crown guarantees to tangata whenua all the rights and privileges of New Zealand citizenship, in accordance with the law.

The original Treaty text as a whole should not be imported into a written constitution. The reasons for this are:

The Treaty is ambiguously worded and poorly translated. This has been the source of many disagreements, and we should not import those problems into a constitution that we hope will outlast us and remain relevant for future generations. No-one suggests importing the Magna Carta or the 1688 Bill of Rights into our written constitution, even though they still serve an important historical constitutional role for us, and so we should not do that with the Treaty.

The Treaty contains wording that is now anachronistic, such as ‘British Subjects’ and ‘right of Preemption.’ It would be unwise to include words that no longer have practical relevance to the New Zealand constitution.

Placing the Treaty into an entrenched overarching constitution risks making the Treaty itself subject to decisions in the courts, with precedents creating ever more complicated interpretations of a poorly drafted document. This may not be in the interests of Maori seeking redress under the Treaty, as it would create conditions for more litigious and costly settlement processes. The Supreme Court’s recent finding on the government’s decision to proceed with sale of shares in Mighty River Power would surely discourage us from believing that entrenchment of the Treaty in a written constitution would be in the interests of Maori. The courts will not necessarily find in favour of Maori nor agree with the Waitangi Tribunal’s interpretations of the Treaty’s implications for particular present-day issues. And the Treaty itself should not be converted into a supreme law that might constrain future decisions, especially given its lack of clarity.

The constitution could include some reference to the Treaty and its basic principles. If indigenous rights are to be recognized in a written constitution, however, it may make more sense to look at the UN Declaration on the Rights of Indigenous Peoples as a source of relevant and up-to-date wording.