Democracy, Constitutions and Revolution
Te Karere Ipurangi
Fiji Coup Supplement
9 June 2000
Democracy, Constitutions and Revolution
by Ross Nepia Himona
Throughout the Fijian constitutional crisis New Zealand's foreign minister Phil Goff has declaimed from his high moral perch the principles of democracy and constitutionality, the absolute and non-negotiable values that Fiji must adhere to, or else. These are the principles, he says, that are the minimum standards expected of members of the Commonwealth.
It's time now to take a closer look at democracy and constitutionality, their history, and how they are applied in Aotearoa New Zealand. After all, if we are to browbeat our neighbours for lapses of principle, then it behoves us to make sure that we live up to our own standards, doesn't it.
Do we indeed role model our own standards? Geoffrey Palmer, perhaps one of the few New Zealand politicians ever to have had any real understanding of constitutional matters, had this to say (1992, New Zealand's Constitution in Crisis):
"There are not enough principles, not enough rules and not enough restraints on executive government. Beneath the surface appearance of adherence to the old forms of government lies serious degradation. In many ways we are clinging to a facade, assuming we are principled and democratic when we are neither."
and this ...
"The nature of the crisis is that our constitution does not contain sufficient checks and balances against the power of executive government. Too much power resides in the executive government and there are insufficient safeguards against its abuse."
So what then is Phil Goff talking about, when he champions this notion of democracy, if Geoffrey Palmer is right, and we ourselves are not democratic. And if our own constitutionality is in crisis, why does he not recognise another nation's constitutional crisis?
Methinks it is because Goff, and all of his fellow MPs, do not mean democracy when they proclaim it, but really mean the presumption of the sanctity and supremacy of Parliament, which is something else again.
A constitution ought to define how the government and its institutions are structured, the powers of the government and the limits on those powers, and how the government relates to the people. Most importantly, the constitution ought to clearly define where sovereignty resides, and should, in a democratic nation, clearly proclaim and preserve the inalienable rights and freedoms of its citizens, forever.
A constitution should also work for all its citizens, and to do that, should reflect the spiritual, historical, social, political and cultural traditions of the peoples it is meant to serve.
Clearly the Fijian constitution has not worked. Clearly the Solomon Islands constitution has not worked. And clearly the constitutional arrangements in Aotearoa New Zealand do not work for at least 20% of its population.
Westminster type arrangements, where power resides in a central parliament, are not working anywhere where power has traditionally resided with autonomous or semi-autonomous tribes and regions. This centralised model has been imposed over and upon political traditions of autonomy and confederation. And it doesn't work; doesn't pass the common-sense requirement to be workable.
The "unwritten", fragmentary and flexible arrangements that serve as a constitution in Aotearoa New Zealand do not meet these minimum standards. The result in Aotearoa New Zealand, in the absence of any clear definition of sovereignty, is that Parliament itself has assumed that it is the repository of all sovereignty. The courts, being themselves creatures of the parliament, uphold this legislated supremacy. And this in turn leads to a low-level creeping abuse of legislative power without checks and balances. This is not the stuff of democracy.
It ought to be the stuff of revolution, if the population were the slightest bit educated about their rights and freedoms as citizens. Unfortunately the citizens of Aotearoa New Zealand are constitutionally ignorant, a situation that allows politicians to continue to get away with their undemocratic presumption that sovereignty resides in Parliament, not in the people.
So where do these prevailing ideas come from?
Let's take a brief look at the British tradition of constitutionality and democracy, for that is the model promoted by the Commonwealth, including Aotearoa New Zealand.
British notions of democracy and constitutionality stem in the first place from the Magna Carta (Great Charter), an agreement signed by King John in 1215. It was in fact an agreement forced upon a greedy king by his equally greedy barons, and was about how they would divide the riches of the nation between them. The Magna Carta ceded to the Crown the right of government, but reserved forever the rights and freedoms of the barons. A council of 25 barons was named to oversee the agreement on behalf of the nobility and church. A Great Council of Chiefs perhaps.
It had absolutely nothing to do with the rights and freedoms of ordinary people. Nevertheless in modern thinking those Magna Carta rights and freedoms, enjoyed previously by the noblity, have now been devolved to the people. Or that is the theory.
British traditions of democracy and constitutionality were formed throughout the centuries following the Magna Carta, not without violence and bloodshed. For instance, in 1649 English republican politicians usurped the law and unlawfully removed King Charles the First from the throne, and beheaded him. Ratu Sir Kamisese Mara and Mahendry Chaudhry should count themselves lucky.
In 1689, the English elites ousted King James and installed William and Mary of Orange, provided they agreed to the Bill of Rights. This has been called a bloodless revolution. Perhaps Major General Sitiveni Rabuka knew his British history.
The Bill of Rights was designed to control the powers of kings and queens, and to make them subject to the laws of parliament. It provided also that only parliament could levy taxes, and in doing so removed that right from kings and queens.
Like Aotearoa New Zealand, Britain still does not have a written constitution, but bases it's constitutional arrangements on the historical events, legislation and precedents leading to the supremacy of parliament over kings and queens, and on some ill-defined and yet-to-be delineated rights and freedoms of its citizens. These are the only two countries in the Commonwealth without written constitutions.
In my opinion the British or Westminster system of democracy and constitutionality remains ambivalent about the rights and freedoms of citizens, and leans towards the sanctity and supremacy of Parliament, and the elites it serves. That elite is, in Britain and Aotearoa New Zealand, now a political and business elite, rather than the nobility. In some other countries with a Westminster system the nobility are still the political elite.
Thus, the final transition of absolute sovereignty to the people from the parliament has not yet been achieved in the Westminster system. By comparison, the American Revolution and the written American Constitution have achieved that transition from parliamentarianism to democracy.
The lesson is perhaps, that one way or another, peaceful or otherwise, those countries still remaining under the Westminster umbrella need to undergo their own revolution, and transition to democracy.
Maybe Fiji has got it right.