Tag Archives: Constitutionalism

A day to remember

Many years ago, when I was four or five, my parents got my brothers and me up to watch one of the lunar missions returning to earth, on what was then our very new and exciting black and white TV. I can recall shots of the sea, and not much more. I think they were live shots, but my memory could be playing me false here – it could be that film was flown out to New Zealand and then shown on TV. But in that case, I can’t think why Mum and Dad would have gotten us up specially to watch it. What I do remember is the occasion, and why it was important.

Fast forward a few decades, to a different country, and a much larger colour TV (flat screen, digital, bells and whistles, and not something we had intended to get just yet, but our old TV suffered from mechanical derangement in the move over the Tasman).

Today, my husband and I got our children to watch the apology to Indigenous Australians for the Stolen Generation being read in Federal Parliament by the Prime Minister, Kevin Rudd. We want our girls to remember this day, or even if they don’t remember the day itself, to remember that we got them to watch and witness when the Prime Minister, in the Federal Parliament, said “Sorry.”

Saying sorry is important. The words really do matter. Here’s why.

I wrote, months ago, about the republican account of freedom as non-domination. A free person is someone who can stand tall, who can look others in the eye, who need not constrain her actions for fear of other people’s reactions. She is a person is with standing, one who can treat with the powerful, can act without fear of unjust retribution, can take her place in the community. She is free from domination.

Freedom as non-domination is a highly social sense of freedom – a free person is one who enjoys standing within social settings. And it is an institutional sense of freedom. The republican account of freedom looks at the relationships between people, and the institutional structures that guarantee freedom. So a person is not accounted free just because of a happy coincidence; she is only free if the world is organised in such a way that she is necessarily free.

This account of freedom can be used to explain what goes on when one person commits a crime against another. Very roughly, the person who commits the crime dominates the other, remove her freedom, and constrains her actions. The offender does not see the victim as a citizen, someone who enjoys freedom as non-domination.

I know, my account here is, well, thin, when it comes to crimes like rape and murder, and it could do with a lot more explanation. If you want to follow up on this, then the book to look for is Not Just Deserts: A Republican Theory of Criminal Justice, by John Braithwaite and Philip Pettit, (OUP: 1990). But the account does work quite nicely when it comes to the treatment of Indigenous Australians. For an incredibly long time, their citizenship was formally and literally denied, and even when that was changed, the treatment of Indigenous Australians by other Australians denied that Indigenous Australians had any rights, even, at its extremes, denied that they might have any status as human beings, and certainly denied them the same sort of status as other Australian citizens. They were totally dominated, treated as being of little account, treated as being some sort of irritation on the Australian polity.

So how to start restoring the status of Aboriginal people, as full citizens, as people who can stand tall and look the other in the eye, secure and respected in their freedom?

Braithwaite and Pettit argue that where a crime has been detected, and the offender convicted, then there should be recognition, recompense and reassurance. The offender must recognise that she has offended against the victim, compromising his standing as a citizen who enjoys freedom as non-domination. She must take steps to make good the victim’s losses, through compensation or whatever other steps are thought necessary. And she must reassure the victim that the actions or circumstances which created the crime will not re-occur.

I think Australia has done a lot of hard work with recognising that a great wrong occurred. To be sure, at least some people thought they were doing the right thing when Aboriginal children were taken from their families, in what we now know as the Stolen Generation, but whatever the intent of those who devised the polices and implemented them, the fact was that a great wrong occurred. (Rather than getting into “did it / didn’t it” occur discussions here, there’s a great post and links and comments thread – Debunking Windschuttle on Larvatus Prodeo for anyone who wants to argue that there never was a stolen generation.)

Some work on recompense is starting to happen, with claims against state and territory governments. More on that in a moment. It’s the third “R” I want to concentrate on, reassurance.

The victim needs to know that she will not be vulnerable to the crime again. She needs to know, not just the the offence is recognised, and the compensation has been paid, but that it will never reoccur. That’s why the apology is so important. After all, if it was only about recognition and recompense, then in a perverse market solution, it could become okay to commit crimes, provided you paid the price afterwards. Payment rendered for goods taken. And of course, transactions can always be repeated.

That’s why standing up and saying sorry matters so very much. The apology ties the recognition and recompense together, and binds them into a reassurance that the crime will not happen again.

Of course, paying compensation reinforces the strength of the apology. It turns the words from being mere words, into a genuine and sincere acknowledgement of past wrongs, and a clear signal that all efforts will be made to ensure that such a crime will not occur again, that the victims of the crime are no longer vulnerable to domination, that they are free citizens standing tall and proud.

That means that the next steps that the Rudd government takes are very important. From the outside at least, the recent John Howard inspired incursion into Aboriginal communities in the Northern Territory looks suspiciously like another version of the Stolen Generation. In addition, so far, Rudd has not talked about recompense. However, for today, that should not detract from the enormous step that has been taken with the apology. And the apology contained this important sentence:

We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians.

It’s a first step.

Alas, this morning we had time only to watch the apology itself, and a little of Mr Rudd’s speech, before we had to take the girls to school. We don’t know how long we will be living in Australia – it could be a few years, or it could be forever. There’s a good chance that our girls will become Australians in substance, not just form (they all have Australian citizenship, by birth or by descent, in addition to NZ citizenship). As Australians, I think that it is important for them to know that they witnessed the moment when the leader of the nation had the courage and the integrity to say, “Sorry.”

Update over the break.
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Constitution is a verb

It really is the silly season in New Zealand. Pollies all on leave, the usual stories about floods and people being rained out of campsites, and retrospectives of whatever journalists can dream up to write about. Even the best have resorted to cat stories and look at the way we were pieces. Newspaper editors, in their most cynical moments, must have been delighted that they were able to fill their pages with stories about Sir Edmund Hillary. He is, of course, a man whose death should be remarked, and his life celebrated, but I wonder if the newspaper coverage would have been quite so fulsome had he died a few months earlier, or later?

In the midst of all this, former prime minister Mike Moore has decided that it’s time to debate republicanism. His main point – there should be a group of eminent persons writing a new constitution for New Zealand. Idiot/Savant has already disposed of Moore’s “eminent persons” group, a proposal that ought to be anathema to republicans anywhere. But if you look closely at some of Moore’s other arguments, you will see that he is not really interested in republicanism at all. He is far more interested in writing a new constitution for New Zealand. So in the Trojan horse of arguing for a republic, he really hopes to wangle some new arrangements for how we constitute ourselves.

He does start with an argument for New Zealand becoming a republic: Australia is likely to become one, so New Zealand should too. Well, that’s compelling. I wonder what else New Zealand should just follow Australia in doing? Protectionism of primary producers? Imprisoning refugees and their children? Removing resources from indigenous people and then using the army to force them to live a certain way?

Don’t get me wrong – I think Australia is a fabulous country, and I’m very happy to be living here. There are many things that Australia does that I think New Zealand could emulate – the separation of powers through having an upper and a lower house being a case in point. However, we should not have an upper house just because Australia has one – we should have one because it introduces serious checks and balances into the process of making law. “Australia does it so New Zealand should too” is a very poor argument, for anything. The case for New Zealand becoming a republic should stand on its own merits, not on what is happening across the Tasman.

But then Moore’s real intent becomes clear. He thinks that we should engage in writing a whole new constitution, in order to avoid ad hoc change. As examples of ad hoc change, he cites the move to MMP, the inclusion of the principles of the Treaty of Waitangi, whatever they might be, in legislation, and the recent changes to electoral finance law.

It’s bizarre to claim that the move to MMP was ad hoc. The electoral process was reviewed by Royal Commission on the Electoral System, which came up with some radical suggestions about how New Zealand could elect its government. The Commission’s suggestions were tested in an indicative referendum, which selected MMP as the preferred system of voting, and then MMP vs FPP was tested in a binding referendum. There was a huge amount of discussion and debate about just how New Zealand should be electing its politicians. It was hardly an ad hoc process.

The inclusion of the principles of the Treaty of Waitangi in legislation was certainly introduced without anyone quite knowing what it meant. But again, the process was hardly ad hoc. There had been years and years and years of Maori protest and debate, demanding that the Treaty be honoured. Over time, the attitudes of Pakeha New Zealand started to change. Of course, this debate did not happen in parliament, so maybe that’s why Moore regards it as ad hoc. Parliament finally took notice, and started making changes, at first under the 1984 Labour government, and later under the 1990 National government, notably when Doug Graham was Minister of Treaty Negotiations. In the meantime, the principles of the Treaty of Waitangi, as they applied to legislation, were being teased out by courts and judges, in a time honoured practice, of taking a case, getting a judgement, possibly appealing that judgement to higher and higher courts, with each appeal and review refining our understanding of what the principles of the Treaty of Waitangi comprehend (in the sense of “include”, not “understand”). Again, hardly an ad hoc process. Indeed, the most ad hoc part of this process in more recent years has been the foreshore and seabed legislation, overturning a carefully thought out judgement from a court.

As for electoral finance reform, I’m with Moore, in part, on this one. The process by which the recent Electoral Finance Act was put in place was hardly ideal. It nevertheless followed the standard parliamentary protocol for legislation, and I think the result is weak legislation that far too clearly serves political parties’ interests, instead of the interests of the electorate. But Moore claims there had been a previous consensus on electoral finance. Sure! It was a consensus that allowed parties to use parliamentary funding for political purposes, and let donors hide behind “anonymous” trusts. It was a consensus that benefitted political parties, and because their own interests were at stake, neither party has had the courage to deal with electoral finance properly. I’m not sure that there is a problem with that particular consensus being broken. Nevertheless, that particular law is going to be tested in the coming year, through the courts, like the principles of the Treaty of Waitangi. And at least one political party has promised a thorough going review of electoral finance should they be elected. Again, not an ad hoc process, ‘though perhaps one that Moore doesn’t like.

As you can see, none of these arguments is about New Zealand becoming a republic. They are actually all about perceived problems with our existing constitution, and therefore, a need for it to be rewritten. I’m all for New Zealand becoming a republic, but I don’t think these are the arguments for it. I can’t help thinking that these are the things that Moore finds irksome about New Zealand, so he would like to change them. Even more than that, I can’t help thinking that MMP, the Treaty of Waitangi and electoral finance are issues that politicians find irksome and would like to change, to a system that suits them better. But I think that many ordinary citizens are rather pleased to have at least some constraints on politicians.

Mike Moore ignores the success of the existing New Zealand constitution in his rather specious arguments for a rewrite. We have never had a written constitution, and I’m not sure that we need one. What we have is a series of interlocking agreements, both legislative and by convention, dating back as far as the 1688 Bill of Rights, that define the way we constitute ourselves. From time to time we rewrite or change or add to those agreements, but it’s a bit here and a bit there, never a wholesale change. So for the most part we keep the framework and the warp and weft intact, just making changes that are needed, without disrupting the entire edifice. In doing this, we constitute and reconstitute ourselves, in a process that makes constitution a verb, not a noun. We engage in a constant process of revising and re-visioning ourselves. It’s never settled, it’s never certain, it’s never black and white, once and for all. And that gives us real freedom to act and to be.

So while I am for a little tinkering, replacing an unelected monarch with a republican president, I am not interested in codifying and setting in stone our understanding of who we are.

And as for the eminent persons group. Republicans bow their heads to no one by virtue of position. They might revere acheivement and expertise, but not mere eminence. In any case, who is going to be involved in and select the “eminent” persons? More politicians? I hope not. Politicians need to remember that they are the servants of the people, not the other way around, and that they work within the system that citizens give them. They most certainly should not be allowed to set up the rules themselves. I much prefer the idea of using experts to come up with some ideas, and a citizens jury to debate and decide on them. Who would the experts would be? It turns out that we are a very wealthy society, so we can afford to employ some people just to think about how we should govern ourselves, in universities, the public service, think tanks, the judiciary, even consultancy firms. There are plenty of people who have real expertise in this area, rather than picking some “eminent” people. The one major qualification for being on the panel of experts coming up with a range of ideas, or for being on the citizens jury? Members must not be, or have been, parliamentarians.