Palmer and Butler answer constitution critic

Sir Geoffrey Palmer and Andrew Butler have written a book A Constitution for Aotearoa New Zealand which proposes a constitution.

In response Dr Noel Cox  a barrister who has been a professor of law, wrote New Zealand doesn’t need a written constitution.

Two principal difficulties immediately come to mind. The first is the question of a written entrenched constitution (one changeable only by a special process), and the second is the (not unrelated) issue of the Treaty of Waitangi.

It might be worthwhile looking at solutions within the existing structures, rather than to call for the codification and entrenchment of the constitution.

Unless they are prepared to wrestle with large issues, most contentious of which is the Treaty of Waitangi, or entrenchment, proponents of constitutional reform should tread warily.

Palmer and Butler have addressed this in Simplified constitution critical for future.

His first point assumes that a written, codified constitution cannot be flexible. We disagree. New Zealand does not need a constitution etched in stone. It needs one with the capacity of being changed either by a referendum of the people or by a special majority of 75 per cent of the members of Parliament.

This is precisely the current position in fundamental elements of the electoral system, guaranteed by section 268 of the Electoral Act 1993; it has been in place in previous legislation since 1956.

We recognise the need to keep the constitution up to date; that’s why we propose it be formally reviewed every 10 years.

Unless our constitutional machinery is kept in good order, it will deteriorate and that is what is happening to it now.

The prime danger with New Zealand’s constitution is that it can be changed at any time with a majority of one in the House of Representatives. That means that anything goes. There are no constitutional restraints except elections.

In theory ‘anything goes’ I guess, but in practice I don’t think anything like that has happened. It could in theory, but so could many things that necessarily be protected by a bit of law or a constitution.

New Zealand is a more stable democracy than many countries who have had constitutions  have been.

The US constitution  hasn’t avoided a debacle of a election that will result in a very unpopular and flawed president.

Of what does the New Zealand constitution consist? The most recent scholarly answer, not from us, is that the New Zealand constitution is located in 45 Acts of Parliament, including six passed in England, 12 international treaties, nine areas of common law, eight constitutional conventions, three-and-a-half executive instruments, one prerogative instrument, one legislative instrument and half a judicial instrument.

How many New Zealanders can find that material let alone understand it?

How many New Zealanders care? How many New Zealanders would take any notice of a simplified constitution?

Far from being unmanageable, as Cox opines, drafting a written constitution once the Crown is removed makes things much more orderly, understandable, less mysterious and more rational.

Do we want our key laws determined by ‘more rational’ judges rather than by our parliament?

We need to know who has what powers and how they must be exercised.

We should know this, or we should be able to easily find out if anything contentious comes up.

We believe that New Zealanders would welcome the opportunity to sort out where they stand and what they stand for. Based on the huge volume of submissions it received and the many public hearings it held, the Government’s own Constitutional Review Panel in 2013 noted “a consensus that our constitution should be more easily accessible and understood”, and also noted that “one way of accomplishing this might be to assemble our constitutional protections into a single statute”.

I believe that the vast majority of New Zealanders will care little or not at all about this.

A muddled and confused approach is unlikely to be sufficient for the challenges New Zealand will encounter in the future.

Clarity and simplicity are great aims but I’m not sure what constitutional challenges we face. Actually I have no idea.

What is needed is a constitution that sets out the rules, principles and processes about government in one document so they are accessible, available and clear.

We need to eliminate the need for significant unwritten constitutional conventions and customs which are unclear in important respects.

We need greater force in the protections given by our Bill of Rights.

We should at least talk about it and consider options.

Our proposed constitution aims to provide an accurate map about how we govern ourselves. We have already had helpful feedback on what we propose; we seek your views at www.constitutionaotearoa.org.nz.

Submissions seem to disappear into the website at this stage, I presume there will be some publication at some stage.

There is some activity on their Facebook and Twitter links, but the ‘conversation’ doesn’t seem to have ignited the masses yet.

 

 

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54 Comments

  1. Pickled Possum

     /  25th October 2016

    “New Zealand is a more stable democracy than many countries who have had constitutions have been”.

    Like who pete?

    “I believe that the vast majority of New Zealanders will care little or not at all about this.”

    I believe that the vast majority of Maori and Pakeha do not understand or care little about a constitution, because the state school system educated all the understanding and caring out of them.

    Reply
    • Corky

       /  25th October 2016

      Welcome to Marxism, PP. Nice little drones for the ideology, not the country.

      Reply
      • Pickled Possum

         /  25th October 2016

        Morena Corky
        Interestingly enough when at uni the tutorials on Capitalism and Marxism I usually nodded off! Oh, what pffillll it sounded. The ‘work for me and love it’ attitude of both.

        Marxism = the political and economic theories of Karl Marx and Friedrich Engels, later developed by their followers to form the basis of communism.

        Capitial = an economic and political system in which a country’s trade and industry are controlled by private owners for profit, rather than by the state.
        Yea Nah Corky, Not in Our country and the Nice little drones … well may they CandB

        Dr Cox well he is not to be trusted it seems he is disloyal (Dave Dobbin won’t be singing to him any time soon).
        A Monarchist which means to me he is against Republicanism, so he singing to his hymn from his church. Not my one.

        “In 2010 he was a professor and Head of the Department of Law and Criminology at Aberystwyth University, Wales, but was dismissed on May 22, 2014, due to alleged breaches of University financial and data protection regulations, and according to a statement by the university, a breach of the University’s duty of care towards a member of staff”.Hmmmmm

        Reply
  2. David

     /  25th October 2016

    Like Britain we have no need for a written constitution, as soon as one is written it is out of date. What problem would it solve that is so pressing aside from a couple of out of touch academics wanting a legacy.

    Reply
    • Pickled Possum

       /  25th October 2016

      Morning David yea well Britain and No Constitution … Hows that going for them these days?

      Doesn’t look that good to me. To me IMHO it looks like they said ‘Well Bugga you, people of the land. We need money and lots of it to implement our fantastic ideas, we will let any one into Britain that has money, has some skills and will work for SFA’.
      So the gates were prised open for the flood of the disheartened.
      Very shortly after that, the people of the land got in boats and planes and speed off to greener and a more virginal land with a very laid back native population called NZ
      and now it’s happening here.
      Will this government and subsequent ones, sell us out ?
      I think a written constitution is like a rule book for people in Power with accountability and transparency and we need one here, cos the rot it’s creeping in.
      If not, why are we even listening to some one who has an integrity problem?

      Reply
  3. An argument based on need implies that a threat exists. Unless the nature of the threat is addressed the proposed solutions are likely to be ineffective of counterproductive.

    In their rejection of NZ’s underlying constitutional values Palmer & Butler are effectively rejecting the law of the land in favour of the mob rule of the E.U.

    Any effective solution involves addressing the fraud of the Crown’s legal strawman, the representation of people as persons which do not posses the constitutional right of liberty.

    Reply
  4. Oh no Corky … Welcome to post-colonial democracy … Here’s some thoughts from Ani Mikaere to be going on with … if you can handle the length? This process is going to be very challenging for all concerned … I think especially Pakeha. In order to do it properly we must have a kind of ‘truth and reconciliation’. So the easiest thing to do will be to find as many reasons as possible to pull out now, before it gets too difficult … more later …

    “… for a long time Pākehā said we didn’t have real law and now they just say their law should prevail … their law should be the one law for all …”

    “Saying you can have a Māori constitution without tikanga is like Pākehā saying they can have their constitution without the Magna Carta. It doesn’t make sense … and maybe all we have to do is find out how in a Treaty Constitution we can get Pākehā to live by Magna Carta and we live by tikanga to find a common ground”. (Matike Mai Aotearoa)

    “The problem with this [current Constitutional] approach, in terms of a tikanga Mäori analysis, is that it is the manuhiri who are dictating the way that things should be done in the tangata whenua’s domain. It is the wronged party who is being expected to submit to terms imposed by the wrong-doer. Such a method of dealing with the injustices of the past cannot possibly hope to achieve resolution.

    The irony of being lectured by Trevor Mallard on the necessity for Mäori to trust the perpetrators of our oppression is, quite frankly, breathtaking.

    For Päkehä to gain legitimacy here, it is they who must place their trust in Mäori, not the other way around. They must accept that it is for the tangata whenua to determine their status in this land, and to do so in accordance with tikanga Mäori. This will involve sorting out a process of negotiation which is driven by the principles underpinning tikanga, a
    process which Päkehä do not control.

    There is no doubt that many Päkehä will find this challenging: their obsession with control over the Mäori-Päkehä relationship to date could almost be categorised as a form of compulsive disorder. Giving up such control requires a leap of faith on the part of Päkehä.

    In my view, however, nothing less will suffice if they truly want to gain the sense of belonging they so crave, the sense of identity that until now has proven so elusive.”

    (‘Are We All New Zealanders Now? A Maori response to the Pakeha quest for indigeneity’ Bruce Jesson Memorial Lecture 2004)

    Rev. Professor Noel Cox is an avowed Monarchist, so to begin with he’s pushing one barrow in direct opposition to Palmer & Butler’s Republican aspirations …

    Reply
    • Gezza

       /  25th October 2016

      The flaw in this thinking is in considering Pakeha must consider themselves Manuhiri in Aotearoa, though to many Maori that is might still be a valid concept insofar as anyone including Maori from outside visiting their particular rohe or marae are technically Manuhiri.

      We are no longer visitors to NZ Our ancestors were the second or perhaps third major wave of immigrants and too many of us now have too many generations born here with a real & historical stake in ownership & useage of the land, whether that be originally through purchase or confiscation.

      The Treaty needs to be honoured because it envisaged a partnership, & breaches and confiscations, should be remediated to the extent possible, but of itself, in any practical sense, the Treaty does not alter the fact that Pakeha who have now been here for many generations, own land here, and have no other citizenship or land they belong to, are now also people of this land.

      Reply
      • @ Gezza – “Pakeha who have now been here for many generations … are now also people of this land.”

        A short answer worth considering Gezza is this, “No they’re not. They are people of this Treaty. Tangata Tiriti. Te Tiriti o Waitangi, as signed by all but 39 signatories – who signed an English version by accident – the te reo text – which does not cede ‘sovereignty’ and guarantees tino rangatiratanga.

        “The Treaty needs to be honoured because it envisaged a partnership …”

        I quote Ani Mikaere frequently because I believe she expresses concepts like tikanga, tino rangatiratanga and mana (et al) in academic, legally precise English language and IMHO, does so ethically, making the concepts entirely comprehensible to pakeha if not undeniably true? [That’s a question by the way …] Whatever else her words are they are an interesting and I think important Maori, tikanga perspective, worthy of note in this ongoing discussion … from ‘Seeing Human Rights through Maori Eyes’ 2007 …

        “In fact there is a disturbing amount of intellectual dishonesty in much of what is sometimes rather grandly referred to as Treaty jurisprudence. A classic example builds on this deliberate fabrication of confusion surrounding the meaning of the documents signed in 1840 by suggesting that the bewilderment can be resolved by resorting to the ‘principles’ of the Treaty.

        Whatever the parliamentary motivation for using the term in the Treaty of Waitangi Act 1975, the principles have taken on a life of their own. Reliance on the principles of the Treaty in order to describe the relationship between Māori and the Crown leads us down the murky path of ‘partnership’ whereby tino rangatiratanga is made subject to kāwanatanga through such euphemistic contrivances as ‘reasonable cooperation’, ‘good faith’ and ‘reciprocity’.

        Contrary to what some have suggested, rejecting the use of the principles is not simply about respecting the mana of the words used in the Treaty. More than that, it constitutes a conscious refusal to collaborate in the judicial rewriting of that which our ancestors agreed to.

        The truth is that by the end of the 1980s the concept of the principles had been hijacked by the Court of Appeal, and had become a ruse to deny Te Tiriti. As Jane Kelsey observed in 1990, ‘via the concept of the principles the judgments had gone full circle and returned to adopt the key elements of sovereignty in the English text at the expense of tino rangatiratanga in the Māori’.

        The above reasoning or ‘logic’ follows much the same course as Ani’s examination of “international covenants” earlier in the same article where she also quotes Konai Thaman.

        “‘[M]ost international covenants are based on Western, liberal beliefs and values, and like all beliefs and values they are embedded in a particular cultural agenda, where indigenous peoples and their assumptions and values have been disregarded and marginalised.

        As an indigenous person, therefore, it should not be surprising that the mention of human rights immediately puts me on my guard. The widely held assumption that the concept of human rights is ‘self-evident, universal, culture-free and gender neutral’ merely increases my suspicion. Simply asserting the universality of a concept does not make it so.

        I realise that not all proponents of human rights subscribe to such universalism, some arguing instead that ‘allowances must be made for different cultural norms and that a standard approach cannot be taken to rights’.

        However, even this cultural relativism smacks of arrogance: in the context of Aotearoa, for instance, it might suggest that the concept of human rights ought to ‘make allowance’ for tikanga Māori. In other words, the Western concept of human rights is regarded as the norm, while tikanga becomes the ‘other’, something for which allowances might reasonably be made.

        Such an approach is the very antithesis of what was encapsulated in te Tiriti o Waitangi. But before considering that document further, the point should first be made that, from a Māori perspective at least, it is not the logical starting point for this discussion.

        It may well be the source of any rights that the Crown and therefore Pākehā have in this land, which doubtless explains their tendency to look back no further than 1840. For Māori, however, te Tiriti is not the source of our rights but rather a reaffirmation of rights that stem from the fact that we are tangata whenua, the people of the land.”

        http://www.nzlii.org/nz/journals/NZYbkNZJur/2007/8.html

        P.S. I have quoted this, I register, acknowledge and comprehend it, and have said other things that might seem to ‘favour’ Maori, but the implication I am therefore incapable of seeing, understanding and feeling other points of view, such as my ‘native’ pakeha ones, is an exercise in what I call puerile infantism …

        PSS I note Kiwi Front Line have removed “Daughter Slaughter” from their sidebar menu, replacing it with “Female Infanticide”, although the girl butchery term still appears prominently, along with “Maori Holocaust Against Maori” – resulting in “fewer breeders due to musket wars and daughter slaughter – in a graph by Dr. John Robinson depicting those TWO THINGS as the ONLY TWO REASONS for Maori population decline 1800 – 1920. No mention of pakeha diseases, homocide or, as in Taranaki, attempted genocide. The graph by “the good doctor” is also seen in the link below (if anyone needs their utterly indefensible prejudices bolstered-up or reinflated at this point).

        https://treatygate.wordpress.com/2011/07/28/treaty-corruption-confession-researcher-forced-to-rewrite-repor-to-fit-official-anti-pakeha-myth/

        The reason I say this Gezza is not so much the ludicrous nature of these peoples’ assertions – as proven above – and I say “proven” with quiet confidence here – but one must also remember who these people actually are! They include Alan Duff, Amy Brooke … Bob Jones … David Rankin … Don Brash … Elizabeth Rata, Fiona Mackenzie, Graeme Edgeler, Hugh Barr, Ian Wishart, John Ansell … Karl du Fresne … Muriel Newman (of course) … Reuben P. Chapple and Bruce Moon (of course), Sarah Taylor … and more …

        These people, many of them highly qualified and widely respected, actually believe this trite, derogatory, utterly insulting, child-like ‘analysis’ (words fail me) of colonial population decline in Aotearoa New Zealand. Honestly, it beggars belief!

        This is the kind of irrational defensiveness, born of fear IMHO, that any reasonable, compassionate, thorough Constitutional discussion is up against …

        Reply
        • How can the abovementioned people put there name to such garbage and not feel unutterable shame …?

          Reply
        • Gezza

           /  25th October 2016

          @ Gezza – “Pakeha who have now been here for many generations … are now also people of this land.”
          A short answer worth considering Gezza is this, “No they’re not. They are people of this Treaty. Tangata Tiriti. Te Tiriti o Waitangi, as signed by all but 39 signatories – who signed an English version by accident – the te reo text – which does not cede ‘sovereignty’ and guarantees tino rangatiratanga.”

          @ PZ. Not me. Our ancestors who immigrated were people of other lands. We’re people of this land. We are people of no other land. The first Maori settlers were people of other lands. Those who were born here became people of this land too. Our respective Pakeha and Maori ancestors signed a document whose meanings were interpreted differently and abrogated, mostly by settler governments I think, rather than by the Crown, but I’d need to double check that.

          What occurred through history has led us all to where we are and now an accommodation of some practicality is needed because Pakeha want to redress wrongs but predominate numerically & have a long applied legal system which includes its own customary law and that has long been applicable to them and post-Treaty arrivals, Maori had/have another system based on customary law, and our populations are now intermingled throughout the land. And this where the difficulties are.

          [I had never even heard of the Kiwii Front Line website until you mentioned it to dave yesterday in relation to some 1080 thread that I couldn’t even find there. I hope to look over it a wee bit more but don’t think I can be bothered with checking it out too much.]

          Reply
          • @ Gezza – I think your concerns about indigeneity are largely answered by Ugly Truth’s quote from Ani Mikaere below, but perhaps try this on for size as well …

            “Both the clear words used in Te Tiriti o Waitangi and the context in which it was signed, therefore, reveal a clear Māori intention to create space for the Crown to regulate the conduct of its own subjects, subject to the overriding authority of the rangatira.

            This reaffirmation of Māori authority meant that the highly developed and successful system of tikanga that had prevailed within iwi and hapū here in Aotearoa for a thousand years would retain its status as first law in Aotearoa: the development of Pākehā law, as contemplated by the granting of kāwanatanga to the Crown, was to remain firmly subject to tikanga Māori.”

            ” … the key to their [Brash, King, Mallard, Round et al, by inference ‘pakeha’] desire to feel that they “belong” here somehow lies in the relationship between Päkehä and Mäori. There is also a sense that in order for that relationship to be put on a sound footing, something has to change.”

            This is where the optimism lies IMHO …

            “The prospect of being forever locked into the roles of oppressor and oppressed must surely be as unfulfilling for Päkehä as it is frustrating for Mäori.

            The foreshore debacle has provided a timely reminder of the ease with which the Crown slips into its time-honoured pattern of threats and coercion, consigning Päkehä yet again to the role of oppressor.

            I find it hard to believe it is a role that Päkehä relish. I doubt whether our
            collective grief is something of which Päkehä are proud. I also know that the very last thing we need is Päkehä wallowing in guilt. All of us, Mäori and Päkehä hope for a better world for our children and grandchildren. If the key to creating that better world does not lie in forgetting our past, where does it lie?”

            Reply
            • Jeeves

               /  28th October 2016

              Remember ,P, not to fall into the useful trap of thinking ‘pakeha’ are a ‘thing’. I am so so more closer to the tangata whenua worldview than say , the average white pom,the white south afrikaan, a yank, a swiss, or even an ‘Ulsterman’.

              The likes of brash and his mate peter ansell thrive on the ambiguity of white ‘culture to promote any platform they choose.

              So let me,for one, be clear._. I am Irish, i am a republican, iam a child of Crown oppression , i am the progeny of those who resisted and triumphed, i remain angry and vengeful on behalf of the threescore generations before me who bore the brunt.
              But i am also at peace,with my past, with my british brothers,with my protestant sisters in ulster.And with my pakeha kiwi wife and our pakeha kids , of irishenglishprotestantscottishcatholicwelshatheist blood.
              But this peace comes to me because of the aroha granted by my true whanau in aotearoa, my hosts, tangata whenua.
              I am a guest in their marae,and i will stand shoulder to shoulder with they who choose to welcome me, a white stranger, onto their turangawaewae.
              Only those of you who understand this,
              Understand us.

            • patupaiarehe

               /  28th October 2016

              Yes PZ, listen carefully!

            • Gezza

               /  28th October 2016

              @ Jeeves
              “i remain angry and vengeful on behalf of the threescore generations before me who bore the brunt.”

              So if you remain vengeful, which means seeking harm against someone in return for a perceived injury, unforgiving, bitter, acrimonious, then you are vengeful against who, and how does this square with your being at peace with your past & your British brothers – or have you just perhaps used an incorrect word ?

            • patupaiarehe

               /  28th October 2016

              Kia kaha, you proud Irish prick! If you are ever in the BOP, I’ll shout you a cold steinlager. I’ll shout you another dozen, if you’ll stand up on a table, and tell every other useless bugger in the pub how lucky they are to live here… 😉

          • @ Gezza – my apologies for leading you to Kiwi Front Line thinking they have a 1080 poison thread going on ‘over there’ ….

            Hmmmm, tempting … Their poison is of an entirely different ilk …

            I was really only pointing out by allusion to the trench peri-scope-monitor, the kind of “stamp on it” mentality of “If you say A, you are therefore in the A-Camp forever and everything you say is A-Interpreted forever, regardless of what you actually say”.

            I dare say I do it too? Although I do believe I have accurately reported what they actually do say regarding ‘Female Infanticide’?

            We haven’t got time to write everything and so IMHO our views are ‘limited’ by what we do have time and space to write … despite my best and longest attempts to fully elaborate my own thoughts …

            If the committed at KFL ‘carpet bomb’ Letters-to-the-Editor and make myriad ‘Clone Submissions’ to government agencies and enquiries, I wonder why they don’t appear openly and honestly on blogsites such as here at YourNZ?

            Reply
        • “who signed an English version by accident”

          Given the Crown’s predisposition towards genocide I very much doubt that this was an accident.

          From Mikaere’s article:

          “Our connection with Aotearoa stretches back through the last millennium, throughout which time tikanga Māori operated as the first law of the land. Tikanga Māori is based upon a set of underlying principles that have withstood the test of time: principles such as whakapapa, whanaungatanga, mana, manaakitanga, aroha, wairua and utu.”

          IMO the points of interest relating to the correspondences between the Maori and English descriptions of “law of the land” are empathy, reason, and due process of law. In general the Maori perspective is more empathic and social, while the English perspective is more reasoned and idealistic. Due process involves the recognition of natural rights and the endeavour of investigation in order that all the relevant facts may be known before a judgment is made. Also the domain of equity exists in relation to English law but isn’t described by the Maori perspective. Equity was originally administered via the Court of Chancery as the court of the king’s conscience, with the king being the ideal of the perfect sovereign.

          Reply
          • So, did English law work better do you think Ugly Truth?

            Has it created and preserved more “equity”?

            Reply
            • Gezza

               /  25th October 2016

              Might be a good idea to define what you mean by equity in the sense you use it here, Uggers.

            • @PZ
              It’s important to distinguish between the English common law that I was using in my previous comparison and the civil law used by the Crown. Also, equity falls outside of the domain of English common law because the common law is ruled by reason but equity is ruled by conscience (although this is probably and oversimplification). Civil law is more about physical representations and the expression of political power.

              IMO the question of whether the Maori law of the land is better or worse than the English law of the land misses the point that a synthesis of the two is a reasonable solution to the problem of the treaty. This is because (AFAIK) both systems value the common good above political supremacy and there an no incompatible elements in the two systems.

              @Gezza
              In its abstract sense equity is a domain which is separate to law and pertains to what is fair and even. In its concrete sense equity consists of property, typically money, physical assets, and land.

            • @ Ugly Truth – ” … a synthesis of the two [English & Maori law] is a reasonable solution to the problem of the treaty.”

              I’ll provisionally go along with that one! Tau toko. Indeed, some real and meaningful resolution to the Te Tiriti issue cannot be otherwise IMO, because we are inculcated with nearly 2 centuries of their albeit unequal interaction …

              It must be ‘synthesis’ though, not thesis [English law] ‘allowing’ concessions to anti-thesis [Maori law] as many are bound to perceive it and how our established system tends to operate …

              And in such a real, genuine synthesis lies truth and reconciliation IMHO. There’s plenty of goodwill on the Maori side, if anyone cares to read Matike Mai Report who hasn’t already done so …

            • @PZ
              I’ve skimmed a little of The Matike Mai Report and believe that there’s potential for transformation based on tikanga as it relates to English and Maori culture. My main reservation relating to the terms of reference is the inclusion of human rights instruments, since human rights are civil constructs which have no connection to the law of the land of either of the two cultures.

              Rights at common law are primarily natural ones, sometimes described as the rights to life, liberty, and the pursuit of happiness. At common law the meaning of happiness is related to the existence of wisdom and justice, it marks a transition from the mundane to what is set-apart (or tapu in Maori culture?)

              Do you think there would be interest from the working group in an approach based on the synthesis of original cultural elements? It would involve a shift away the Crown’s institutions to a system more aligned with nature and with reason.

            • Ugly Truth, sorry for the delay in replying … I haven’t had any direct contact with the Matike Mai Aotearoa group. I’m sure you could contact them though, through the Iwi Chairs Forum perhaps? The website probably has contact details …

              http://www.converge.org.nz/pma/iwi.htm

              I have made [part 1 of] exactly such a submission as you outline regarding Te Tiriti o Waitangi to Mssrs Palmer&Butler just the other day. I’ve only got the digital acknowledgement so far so I can’t say whether they’re interested or not … I suspect not …

              I use Matike Mai as an example of alternative models of Constitution and government, although IMHO ultimately Maori must decide what form of government best suits them and pakeha must take Ani Mikaere’s “leap of faith” …

              I pointed out exactly the same thing as you call “a shift away from the Crown’s institutions”, saying that such a Constitution and the government stemming from it will be unique in the world. It may not be a slightly adapted Westminster Parliamentary system like we have now.

              Matike Mai proposes six “indicative models” for further investigation. These, as you probably know, are Tricameral and Bicameral Representative Assemblies.

              We can do a whole lot better than Westminster adversarial anyhow. Someone said on here recently that committees are the worst possible way to get anything done; that may be correct but a well facilitated, well intentioned group can achieve amazing things, and be exciting, and include robust debate and challenge … even if they are elected representatives … politicians …

              Aside from becoming a Republic, changing the Constitution once adopted, a 4 year Parliamentary and a few other things, Palmer&Butler’s Constitution basically describes the status quo, with [what looks like] a little considered, non-consultative Treaty of Waitangi Part 11 … IMO Te Tiriti should be Part 1, immediately after the preamble, itself a prelude to setting out how the ‘partnership’ or tino rangatiratanga plus kawanatanga, bicultural and multicultural governance system will operate …

              They’re asking for feedback so I say GO FOR IT!

              I can’t really understand why we wouldn’t want human rights included in our Constitution, unless you have some particular desire not to be aligned to the United Nations … is that it?

              There seems to be so many kinds of law in your perspective on things, common law, civil law – or are they the same thing – and “natural law” which is different? I still can’t make sense of it …

              Why not just make natural law our common law …?

            • Gezza

               /  25th October 2016

              To understand natural law you need to research English common law, which now includes equity law (dealing with fairness and redress where the common law remedy is considered unfair), and you also need to understand municipal (or civil law) which is the branch of English law which deals with prescriptive laws made in theory for the common good.

              Uggers always refers to Sir William Blackstone. I’m reading his Commentaries on The Laws of England as and when I get time.

            • Hi PZ, thanks for the reply, I like your enthusiasm.

              The thing about human rights is that they belong to the domain of humanism, and humanism depends on protection from the state in order to function. This contrasts with natural rights, which fall within the domain of the common law.

              At common law protection of these rights belongs to sovereignty, and historically sovereignty was held according to the ideal of the perfect king. The common law originated in England, but Europe and the UN operate according to civil law, not common law.

              Constitutionally, NZ inherited common law from England, so on that basis it is historically consistent for us to recognize natural rights before human rights. Historically, natural rights are protected by the king but human rights are protected by the regent or by the empire.

              The fundamental difference between common law and civil law that the common law serves the public interest while the civil law serves the body politic.

              Natural law is a term used for mankind’s descriptions of the law of nature, while the common law transcends this by its inclusion of law attributed to deity. The theism of the common law is most problematic for the civil system, since it assumes the same authority as the common law but lacks the substantive qualities which justify that authority.

            • Gezza

               /  26th October 2016

              @ PZ, and if you don’t understand why we don’t just make ‘natural law” our common law, you might also want to first read this.
              https://en.m.wikipedia.org/wiki/Natural_law

            • patupaiarehe

               /  26th October 2016

              As always, it’s a matter of perspective G. I like this quote from it myself…

              Thomas Hobbes instead founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act.

    • Alan Wilkinson

       /  25th October 2016

      “They must accept that it is for the tangata whenua to determine their status in this land”

      Obsequious crap, PZ. Grow a spine.

      Reply
      • Not really. If they want to step up then should they not reap the rewards?

        Reply
        • Alan Wilkinson

           /  25th October 2016

          Maybe I misunderstood who PZ referenced by “They”? If it was not Pakeha, I withdraw and apologise to him.

          Reply
          • No misunderstanding Alan … No apology expected … No spinal problems either …

            “A commitment to forget is clearly something that the asserters of Päkehä indigeneity share … His [Brash’s (and King’s)] approach has the effect of conveniently “forgetting” that the vast majority of wrong-doing was committed on the Päkehä side.

            Yet, just as Brash continues to cultivate [and recently re-cultivate] a coalition of the fearful … equally plain … is [the] intent on forging a coalition of the forgetful: Mäori must forgive and forget, and Päkehä must be allowed to forget, so that we can all live together as one big, happy, amnesic family.

            Well, Mäori will not forget … Mäori understand only too well our obligation, to generations past and future, not to forget.”

            This, after all, is the ‘obligation’ and respect we pakeha willingly and dutifully give our ancestors who fought in World Wars and other conflicts overseas, for “King and Country” yet we shy away from doing so here at home? Indeed, there’s a petition going to try to prevent the New Zealand Wars being remembered officially …

            Ani Mikaere continues, “And the truth of the matter is that no matter how hard they try, Päkehä cannot forget either … A sense of underlying unease,
            of unresolved guilt pervades their words. One barely has to scratch the
            Päkehä surface to find the guilt lying immediately beneath, guilt which
            manifests itself as denial, self-justification, defensiveness and, incredibly
            enough, a sense of victimhood.

            The cost to Päkehä, as I have already said, is a burden of shame that they cannot escape. The cost to Mäori is also high … “

            Reply
            • Alan Wilkinson

               /  25th October 2016

              Utter rubbish. I have no burden of shame. If you want one you can find one anywhere you care to look but you can’t put it on someone else.

          • Alan Wilkinson

             /  25th October 2016

            Been busy all day. Actually it was the “their” not the “they” that was ambiguous. My assumption was that it referred to Pakeha. If so, I reject the statement completely.

            Reply
            • So with no “burden of shame” Alan, and having rejected tino rangitiratanga, and also tikanga as “first law in Aotearoa”, Maori as tangata whenua and all the rest, will you be steering clear of the Constitutional discussion?

              The batton has been passed from CAP and Matike Mai to Messrs Palmer & Butler. In a similar way as I’ve previously wondered what portion of the population are racial ‘equalists’ and ‘same-ists’, I wonder now what portion of the population might be motivated to carpe diem, cease the day …?

            • Alan Wilkinson

               /  26th October 2016

              I have no interest in supporting the Palmer and Butler crap by taking any further notice of it.

            • Good news …

      • Jeeves

         /  28th October 2016

        No, Alan, only obsequious to an obsequious worldview .Very precise and meaningful to some of us.

        Reply
  5. Gezza

     /  25th October 2016

    “… In order to do it properly we must have a kind of ‘truth and reconciliation’”.

    It already happens between the Crown & Iwi with every settlement, from what l’ve seen PZ. And the establishment of the Waitangi Tribunal was a cornerstone of our version of Truth & Recociliation.

    Reply
    • You can’t base truth on a fiction, and the Crown’s operations are based on the use of legal fictions.

      Reply
      • Gezza

         /  25th October 2016

        That’s as may be, the point of truth and reconciliation is to acknowledge wrongs were done, apologise, and do what is practical & feasible to right them. A perfect solution for everybody in every situation is unlikely to be achievable so compromise is better than none.

        Reply
        • Finding a remedy for a wrong involves understanding the intangible causes of that wrong, but the present arrangements are for the most part only partial settlements in equity, with the causes remaining unaddressed. Universal perfection isn’t the issue here.

          Reply
    • @ Gezza – ” … the establishment of the Waitangi Tribunal was a cornerstone of our version of Truth & Reconciliation.”

      Was it? Let’s investigate that assertion, shall we?

      https://en.wikipedia.org/wiki/Waitangi_Tribunal

      A great thing about it is: “The Tribunal process is inquisitorial, not adversarial. It seeks to get to the truth of the matter. The aim is to determine whether a claim is well founded.” Our jurisprudence and government could take a leaf out of that book …

      However, what do we find that’s indicative of ‘Truth & Reconciliation’? Well, you can see for yourself all the ways in which it clearly isn’t a “cornerstone” …

      – The Tribunal is not a Court of Law
      – Its recommendations and findings are not binding on the Crown
      – Originally the Tribunal could investigate grievances only since 1975
      – Originally a Tribunal investigation and report was a prerequisite for a Treaty settlement
      – in 1985 the Tribunal’s jurisdiction was extended back to 1840, the date of the Waitangi Treaty.
      – In 1999 … the government changed the process so that claimants could go straight to settlement with the Office of Treaty Settlements without engaging in the Tribunal process.
      – Members are appointed by the Governor-General on behalf of the Queen on the recommendation of the Minister of Māori Affairs in consultation with the Minister of Justice, for a renewable term of up to three years.

      “Päkehä will find this challenging: their obsession with control over the Mäori-Päkehä relationship to date could almost be categorised as a form of compulsive disorder.” – Ani Mikaere

      Compare The Waitangi Tribunal to South Africa’s Truth and Reconciliation Commission (TRC) and IMHO two things become evident, even despite the clear and apparent differences between ‘Apartheid’ and ‘A History of Dishonouring the Treaty’ …

      1) We’re not doing it – aside from apologies and “settlements in equity” – haven’t done it and are wholesale resisting doing it. [We’d do it in our very own way, of course]
      2) Because of Te Tiriti o Waitangi – and almost exclusively because of it – we have about the best chance in the world of doing it really, really well.

      https://en.wikipedia.org/wiki/Truth_and_Reconciliation_Commission_(South_Africa)

      Interesting fact – “A total of 5,392 amnesty applications were refused, granting only 849 out of the 7,112 (which includes the number of additional categories, such as “withdrawn”).”

      I wonder where those people went …?

      As I asserted during the Flag Debacle too, if we do this Constitutionality really honestly and fully we’ll also get the best possible flag for our new Republican nation … Aotearoa New Zealand …

      Reply
  6. Gezza

     /  25th October 2016

    That’s why I refer to ‘our version’ of Truth & Reconciliation PZ. Those who perpretrated what the TRC considered to be crimes against against the human rights of individuals & were offered the opportunity to seek amnesty were people still alive at the time. This is not the case in New Zealand. The establishment of the Waitangi Tribunal and the later extension of its mandate to consider claims dating back to 1840 it seems to me was the first real acceptance by the Crown that the wrongs of the past needed to be recognised & that some form of redress was required. That is one of our forms of truth and reconciliation. Where we should go from here in terms of what laws of the land should be applicable to all its citizens is problematic if & where tikanga and pakeha law conflict. But I think the Constitutional debate is worth having to explore that.

    Reply
    • Where we should go from here in terms of what laws of the land should be applicable to all its citizens is problematic if & where tikanga and pakeha law conflict.

      Citizenship didn’t exist as part of the law of the land of England, but rather as part of English municipal law. At common law security of the person was a function of allegiance to the the king, not citizenship (In England common law and the law of the land were essentially the same thing).

      Based on what Ani Mikaere wrote, there are no fundamental conflicts between tikanga Māori and our inherited English law of the land, although of course the two systems place emphasis on different values. Citizenship involved a distinction between the civilians (as the protected) and the armed forces (as the protectors). AFAIK this distinction didn’t exist in Maori culture.

      Reply
    • @ Gezza – Personally I don’t think the problem is where tikanga and pakeha law conflict if they do at all, as Ugly Truth points out.

      I think the difficulty will be whether a presently unknown sized portion of the pakeha population can even hear the word tikanga when its spoken in their presence or whether they have selective cultural deafness as well as either congenital cultural myopia or blindness?

      Even if they heard the word and didn’t completely freak out, run a mile or retreat inside their armour, would they have the slightest understanding of it? Or be prepared to engage with Maori to better understand it?

      We can’t synthesise or reconcile two things in we don’t comprehend one of them …

      And yet if you talk to the very same people about ‘right’ and ‘truth’ they are absolutely certain they know what these things mean …

      If you think I’m being unfair, consider the situation of a Maori person. Even if they speak te reo and want to speak nothing else, they MUST learn English. How many pakeha reciprocate?

      Reply
      • Grrrrr … IF we don’t comprehend one of them …

        Reply
      • Gezza

         /  25th October 2016

        @ PZ. When we both can’t all communicate in each others’ languages we need to communicate in a common one or use translators. Look at the problems the latter caused with the Treaty. By dint of history (and coercion) the common language here is English.

        Some concepts in different languages have no exact or precise equivalent in another, or can mean, or be applied in different ways to different things or situations, in another. Mana is one word I can think of that fits that description. I’d be happy to see te reo taught to all in schools but no government is going to go there with that in the foreseeable future.

        But I don’t feel I’ve got anything more to contribute to a chat with you on the constitution issue until I’ve at least had a read of the Matike Mai report, which I’ve just started on.

        Reply
      • patupaiarehe

         /  25th October 2016

        I think the difficulty will be whether a presently unknown sized portion of the pakeha population can even hear the word tikanga when its spoken in their presence or whether they have selective cultural deafness as well as either congenital cultural myopia or blindness?

        Of course they will PZ, confronting anyone with a word or concept they don’t understand, and expecting them to agree with it is ridiculous, if it isn’t explained properly…
        https://en.wikipedia.org/wiki/Tikanga_M%C4%81ori

        The Māori word tikanga has a wide range of meanings — culture, custom, ethic, etiquette, fashion, formality, lore, manner, meaning, mechanism, method, protocol, style.
        Generally taken to mean “the Māori way of doing things”, it is derived from the Māori word tika meaning ‘right’ or ‘correct’

        The ‘correct’ way of redressing past wrongs, is far different now than it was 200 years ago, and for that matter 400 years ago. And at any of those points in history, right or wrong was a matter of perspective. IMHO, todays methods are far better than those of old…

        Reply
  7. Alan Wilkinson

     /  28th October 2016

    PZ, you are avoiding the plain elephant in your room that there was never any doubt on the European side of the agreement that the chiefs’ individual sovereignty over their land and people was subservient to British sovereignty and law. Denial of this is pushing b.s. up hill. Moreover it was individual to the chiefs, not some national Maori state.

    And Pompallier made it quite explicit to the chiefs here in Kororareka what the consequences of signature would be and they asserted that at the meeting. That Patuone and Nene disagreed and continued to oppose Hone Heke even after implementation made it quite clear British rule was sovereign and superior shows they had their own reasons for supporting it and that continued to the end of their long lives as it did for many Maori including those who fought against their own race in the land wars. The simple truth was that British sovereignty became established fact and life and law in this country proceeded on that basis unchallenged. If PZ wants to consider himself a second class citizen go right ahead but don’t expect anything but derision and contempt from me.

    Reply

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