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Upton-On-Line: Issue On Constitution-Building


Special Issue on Constitution-Building

16th October 2003

In this edition

Some thoughts about the proposed European Constitution; some further thoughts about the axing of appeals from New Zealand to the Privy Council; some even further reflections on referenda and whether minorities have the right to secede in the face of majority steam-rollers; and a cautionary tale of fiscal profligacy from France.

Constitutions and referendums

As New Zealand axes appeals to the Privy Council by simple (and narrow) Parliamentary majority, European politicians are wondering how to enshrine their new constitution. The debate is not without relevance to New Zealand's situation since it involves trying to manufacture a constitutional instrument without a crisis and/or a popular demand for one. Of course the two initiatives could not be more different in scale. One resembles a sort of constitutional appendictomy; the other, a completely new constitutional species never before tested outside laboratory conditions. But they share a common thread: constitutional change in the face of broad indifference.

Upton-on-line would not dare to attempt an analysis of the proposed draft constitution. Readers will, in any case, have followed the key points of contention - such as whether every country can have a commissioner, and whether to adopt the new majority voting rules in the Council of Ministers (a majority of states representing 60% of the Union's population). Spain and Poland have joined forces to block this on the basis that it gives too much weight to the big countries like France, the UK and Germany.

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Suffice it to say that this is no minor initiative. The articles of the draft constitution run to a cool 225 pages. The pre-existing complexity of the European experiment (a confabulation of national and European parliaments, the Commission, a European Court and a slew of inter-governmental treaties) almost guarantees that for most people it will be a question of whether they think 'Europe' is a good thing and they'd like more of it - or not. Nagging away in everyone's minds is the question of how such a constitution can ever acquire popular legitimacy. And that's a question that's in store for little old post-colonial New Zealand too.

Abstract or popular?

It is instructive to compare the tone (and length) of the preambles with which the American and proposed European constitutions open. The American version is famously brief, yet expansive:

"We, the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Compare that with Giscard d'Estaing's euro-version. It starts with a little extract from Thucydides in classical Greek which, translated, reads: "Our Constitution ... is called a democracy because power is in the hands not of a minority but of the greatest number". That in itself is contentious given the mixture of veto-rights, qualified majorities and shared jurisdictions between Councils, Parliament and the Commission. But let that pass - the sentiment is what counts; this is a constitution that erects democracy as its founding value. The preamble then proceeds as follows:

"Conscious that Europe is a continent that has brought forth civilisation; that its inhabitants, arriving in successive waves from earliest times, have gradually developed values underlying humanism: equality of persons, freedom, respect for reason,

"Drawing inspiration from the cultural, religious, and humanist inheritance of Europe, the values of which, still present in its heritage, have embedded within the life of society the central role of the human person and his or her inviolable and inalienable rights, and respect for law,

"Believing that reunited Europe intends to continue along the path of civilisation, progress and prosperity, for the good of all its inhabitants, including the weakest and most deprived; that it wishes to remain a continent open to culture, learning and social progress; and that it wishes to deepen the democratic and transparent nature of its public life, and to strive for peace, justice and solidarity throughout the world,

"Convinced that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their ancient divisions and, united ever more closely, to forge a common destiny,

"Convinced that, thus "united in its diversity", Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their special responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope,

"Grateful to the members of the European Convention for having prepared this Constitution on behalf of the citizens and States of Europe,

"[Who, having exchanged their full powers, found in good and due form, have agreed as follows:]"

There you have it: 52 words versus 253 (not counting Thucydides or the bit in square brackets). Whatever else it is, the European constitution is a wordy constitution. More remarkable still are the contrasted voices. Just who is talking here? The US Constitution is unambiguous - it boldly claims to be the voice of the People. But the European version? Upton-on-line is not a constitutional expert and the answer may be blindingly clear to experts, but to the ordinary reader there is a yawning ambiguity about whether it is the (unelected) Convention members or the (allegedly) grateful citizens and States of Europe who are doing the declaring. Whatever the answer it is quite clear that no draft European constitution could dare claim to speak for anything as fundamental as 'the People'.

And are these 'grateful' citizens really "determined to transcend their ancient divisions" when the sum total of issues on which the Union is declared to have exclusive competence comes to just five, namely:

a.. competition rules for the internal market,

b.. monetary policy for those states that have adopted the euro,

c.. a common commercial policy,

d.. the customs union

e.. the conservation of marine biological resources under the common fisheries policy.

The partial coverage of the euro says it all. There would appear to be no sign that Sweden, Denmark or Britain are going to abandon their currencies. Why should they when France and Germany have decided that the fiscal stability pact supposed to underwrite the euro only applies to other countries. And the inclusion of marine biological resources seems almost whimsical set alongside all the other things one could have thought of.

When it is not spelling out legal powers, the text of the Constitution (and upton-on-line freely admits to having not read every word of it) is full of aspirations. The Union (Article 3) shall amongst other things work for sustainable development, promote scientific advance, combat social exclusion, respect its rich cultural and linguistic diversity, and contribute to peace, security, and solidarity and mutual respect along peoples. EU lawyers have, apparently, even taken a leaf from the NZ law draftsperson's armoury: the Union shall "respect ... the principles of the UN Charter". Does that 'respect for the principles of' formula ring a bell somewhere?

It would be ignoble to make light of such ambitious and well-intentioned words. But how can this hope to command the popular allegiance of a continent of 350 million souls? No-one claims that it will. The most hopeful supporters believe that having two presidents (one elected for a two and a half year term by Heads of State meeting as the Council of Europe) and a second (the President of the Commission elected by the European Parliament) will create a sense of democratic legitimacy. Upton-on-line is sceptical.

The truth is that the Constitution has been negotiated by practiced politicians and others from the governing classes of Europe. It has none of the raw immediacy of a document with its roots in a keenly felt sense of common destiny borne of turmoil and the upheaval of revolutionary nation-building; there is no sense that the stakes are truly high or that Europe has been through a process in which a whole raft of sticking points and 'can't-do' blockages have been swept away. That's what happened in America's war of independence. It's not that Europe hasn't been through excruciating traumas. The two world wars (often termed European civil wars given their origins on European soil) provided more than enough rationale to expunge once and for all the pathology of Europe's destructive competing nationalisms.

But it was not a common enterprise on which to base a sense of European belonging. The nearest popular opinion came to a European euphoria was in the heady days following the fall of the Berlin Wall. Singing Beethoven's Ode to Joy while passing under the Brandenburg Gate was as good as it got. The Maastricht Treaty, the euro, and all the other projects of Chancellor Kohl's generation may have been made possible by the shock end to the Cold War. But they were always steps promulgated from the top down. And now that the mood has faded, how can that leadership class proceed?

Putting it to the people

If the constitution cannot unself-consciously proclaim itself to be the voice of the People, the next best thing seems to be endorsement by referendum. Some member states like Ireland and Denmark require it any way. It's the ones that don't - like France - that are having to soul-seach. One by one, France's political leaders are leaning towards a referendum - all the time hastily noting (with undisguised relief) that the decision to hold one rests wholly in the hands of the President. The President is handling the issue with kid gloves. As a number of old sceptics have noted, the French have a particularly irritating habit of using referenda to answer questions other than the one on the ballot paper. Like whether or not they approve of the President! Needless to say there are those who would be sorely tempted to profit from his discomfort should the referendum go the wrong way. And, as with many countries around Europe, there are disturbing signs that the citizenry might not be as grateful to the drafters of the constitution as its text proclaims them to be. And yet, it would be bizarre if the only way Europe could reinvent itself as an 'ever-closer union' was by running a country mile from rank and file voters.

Constitutionalising in an apathy zone

All of which underlines the difficulties of trying to erect sweeping - and potentially powerful - constitutional reforms in the absence of a groundswell. Helen Clark's determination to press ahead with the removal of the Privy Council from our legal system without recourse to a referendum raises some interesting questions. She could well feel aggrieved by the sudden conversion of some segments of the parliamentary opposition to being defenders of the status quo. After all, wasn't it a National Government with Jim Bolger and Sir Douglas Graham at the helm which set the whole thing in motion? Why the sudden enthusiasm for a referendum? And this from a National opposition that cheerily talks about abolishing the Maori seats by simple Act of Parliament regardless of the views of the minority that might be affected. (In fairness to business and professional opponents of the Privy Council change, their suspicion of the move has been consistent throughout.)

This sudden outburst of Opposition principle should have been driven by a desire to invite the public to consider a different set of questions. Given the fact that the Blair Government is rapidly disassembling the bits of the British judicial system into which we once plugged, it can be argued that it would have been irresponsible not to seek an alternative to the Privy Council before it too evaporates. Out of sheer politeness, the British are retaining the Judicial Committee for those vestigial countries which wish to retain it . But the institution of a British Supreme Court leaves the Judicial Committee of the Privy Council high and dry as a relic from a former age.

Surely the real issue was - and still is - all about rescuing a domestic appellate system from the thin, recycled air of NZ's judicial system. That's a problem that faces all small nations and the Privy Council was not the only solution. The European Court, for example, provides an outlet for Ireland; and in some parts of the world there are ultimate courts shared beween nations and jurisdictions in the same region (Caribbean Court of Justice and the Central American Court of Justice). Australia was the obvious regional 'docking' point for New Zealand.

On the other hand, there is something worrying about the Government's argument that the Privy Council issue was 'too complicated' to be submitted to the people in a referendum. Really? It Was much less complicated than the decision to adopt MMP? And it is certainly orders of magnitude less complicated than anything European governments may end up having to put to their voters. Are we saying here that only banally simple issues can be risked in referenda? And what are the future implications for further constitutional reform in New Zealand? Because to upton-on-line's mind, all the other issues are far more complicated. It cannot be denied that the decision to domicile our highest court within New Zealand and bring it within the appointment processes of the New Zealand political system, is a step of real constitutional significance.

The parliamentary opposition's concern would be a whole lot more credible if it sorted out a coherent view of how constitutional issues should ordinarily be addressed. Likewise, the Government would be much better trusted if it came out openly and acknowledged that it is increasingly being drawn into a re-evaluation of New Zealand's constitutional arrangements. Treaty of Waitangi-based arguments are increasingly challenging the limits of majoritarian democracy. The changing nature of New Zealand's engagements with Australia and the wider world are also likely to test the boundaries of sovereignty as we have known them. A broad constitutional front is opening up regardless of who is in office. It is far bigger than partisan politics and must be rescued from it.

There can be few people who are satisfied that we can deal with constitutional issues by simple majority votes in a single chamber parliament. (Yes, there is some entrenchment in the Electoral Act, but that doesn't begin to exhaust the possibilities.) Just how far do we have to go down the republican road before we trigger the need for broader popular endorsement? And how far should we venture if public enthusiasm for messing around with the system barely rises above apathy? The fact that 80% of New Zealanders reportedly wanted a referendum doesn't necessarily mean that 80% opposed the measure. But it does suggest that the people at large want to control the process or, at least, slow it down. Lacking any other constitutional checks, upton-on-line has long felt that a second chamber would be preferable to asking our judges to fill in the gaps.

Something to chew on

With all this in mind, upton-on-line was struck by one particular provision in the new European constitution - Article 59 which spells out the right of any member state voluntarily to withdraw or secede from the Union. This is just one of a number of provisions that underlines the on-going primacy of nation states, however 'close' the Union may become. As such, it is meant to reassure the sceptics. In going down this road, Europe has consciously chosen a very different path from that adopted by the States that, by uniting, became America. Not that the notion of united and indissoluble states was by any means easily bedded down. In fact it took a civil war in which Americans killed 600,000 fellow Americans.

This is not the place for a digression on the case of the Southern Confederacy in the American Civil War. But readers interested in whether or not a right of secession can be argued within the setting of a duly constituted nation state are strongly urged to read a recent book by Daniel Farber - Lincoln's Constitution (Chicago University Press 2003) and in particular pp 92-114. This is an up-to-the-minute analysis of the constitutional abyss into which Lincoln stared. It is something of a revelation, and should provide food for thought for European and New Zealand constitution builders alike.

As Farber points out, secession is the remedy of last resort for those oppressed by majority rule. It was a right Lincoln had endorsed in respect of Texas at the time of the Mexican war. "A majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movement." But as Farber points out, majority rule cuts both ways because "there are two relevant majorities. One majority lives in the disputed territory and seeks to secede. The other majority covers the whole country and opposes secession. The norm of majority rule cannot tell us which majority should prevail."

Farber continues in a vein pregnant with significance both for Europe with its constituent national minorities and for New Zealand with significant Maori groupings questioning the legitimacy of state authority:

"If a secession option does have any justification, it is a protection of minority rights. But providing this option is at best a clumsy way of protecting minorities. A secession option rather arbitrarily protects only minorities that happen to be concentrated in discrete geographic regions: it does nothing more for diffuse minorities for whom secession is not a practical possibility. Furthermore a secession option makes no distinction between fundamental minority interests such as individual liberty and mere pocketbook disputes ... Thus secession is not in general a promising method to protect minority rights.

"Societies may have other good reasons to commit themselves in advance against secession. The very possibility of secession weakens the country as a whole in its foreign relations, encouraging outsiders to seek separate deals with subgroups. Moreover, in times of crisis, it may be important to take action which is beneficial to society as a whole but sacrifices the interests of a sub-group. In advance, it may be to the advantage of each subgroup to empower the national government to make such decisions, taking the risk that when the actual situation arises, they will be the disfavored group rather than the part of the benefited national majority ... There may be good reason to precommit to a perpetual Union, just as it may be advantageous to enter into a binding legal contract, even though such contracts do not always turn out to be beneficial in the end. Thus, from the point of view of democratic theory, "secession on demand" is not a particularly attractive concept..."

In the end, Lincoln and the North denied the right to secede - by force. Europe, possibly sensing the fragility of the bonds that bind it, has opted to provide for the possibility. And what of New Zealand? Did the Treaty of Waitangi create a 'perpetual union'? This is an issue that can almost certainly not be avoided if there is any wholesale alteration to the foundations of the constitutional 'settlement' that for better or worse has emerged out of the wreckage of the land wars, the Statute of Westminster, the various changes to the electoral system, the revivification of the Treaty of Waitangi and (most recently) the abolition of the Privy Council.

Most obviously there was a Treaty signed between Crown and certain iwi. Whilst the reality may be that the Crown and the Parliamentary majority have become one, that happy coincidence of untrammelled executive power in Parliament would not go unchallenged in an attempt to rid us of the monarchy. If the Crown were not there, some would argue that all bets are off. How would the Parliamentary majority (whatever its colour) respond to a distinct, secessionist movement? If it was a geographically distinct majority, would Parliament simply deny it?

This is all uncomfortable stuff. But it's there beneath the surface of many debates in New Zealand - just as it is in Europe whether we are talking about Corsican or Basque nationalists today, or the possibility of small minorities finding the yoke of Brussels intolerable tomorrow and seeking to trigger clause 59. None of this is easy to think about in an apathetic vacuum. But as Lincoln found, it is an excruciating and searing experience in the heat of civil war. In which case, perhaps the Europeans are right to provide for it in advance.

The really interesting question to which any New Zealand politician should address herself is this: if you were contemplating a constitutional upheaval, how would you open your preamble? Would it begin "We the People..." or would it search for abstract pieties? And if it couldn't begin "We the People..." then what does it say about the usefulness - or durability - of trying to impose anything by Parliamentary majority or even by majority in a referendum? Europe, scarred by a half century of incredible bloodshed and brutality knows what it doesn't want, but can't get beyond the abstract in saying what it does want. New Zealand, scarred by the breakdown of one constitutional order in the 1860s and living amidst the slow decay of its successor 140 years on seems equally rudderless. Constitution-building in a sea of apathy is a soul-destroying business.

Fiscal tales of a cautionary nature

Upton-on-line has been fascinated to watch the levels of fiscal alarm that have been successively raised as the French economy has coasted to a halt over the last two years. It is a textbook case of how a deepening crisis causes unthinkable ideas to become only unmentionable, then by degrees, mentionable (on the basis that they will be dismissed), mentionable (in the hope someone will take them seriously) and finally mentioned as "the heart of the issue".

With state indebtedness now set to break the 60% of GDP barrier (€15,000 per citizen) and the budget deficit oozing out towards 4% of GDP, all sorts of sacred cows are in danger of being offered up on the altar of fiscal rectitude. And it is all happening in a climate of plummeting national confidence. Unemployment is nudging 10% when in the UK a figure of 3.1% is getting pretty close to full employment. Not only is the European Commission threatening sanctions for breach of the euro-zone stability pact; books are starting to pour off the printing presses with titles like Adieu à la France qui s'en va by Jean-Marie Rouart (which one might loosely translate as Farewell to France on the Skids) and La France qui tombe (France in Decline) by Nicolas Bavarez.

Needless to say, these counsels of doom are fiercely contested by those with a stake in the status quo - of whom there are rather a lot. Depending on how you define it, the public sector employs anything between 3 million and 6 million people. They're not exactly volunteering for the funeral pyre as a way of making ends meet. Even ministries in which you would expect a fiscally anorexic mindset are beyond hope: there are roughly 50,000 people employed in the Ministry of Finance alone and 12,000 in the Bank of France (yes: 12,000 and that's in a central bank that no longer runs a national currency!). With legions of functionaries like this what hope has a reforming politician? As Maurice Druon, a distinguished Academicien remarked recently, France enjoys the questionable distinction of being the sole remaining semi-communist country in Europe.

But none of this has stopped brave souls proposing all sorts of solutions. Some are quaint - set up a committee to investigate simplifying things was one suggestion. (Sir Humphrey apparently has a French cousin) Others are splendidly whimsical. France still has a television licence fee whose collection apparently occupies some 1500 functionaries. An academic economist, Jacques Marseille, has proposed adding it on to the habitation tax to save €40 million in one hit. For the twenty five and a half French citizens who don't have a television he proposes a simple declaration on the tax return which would enable people to state: I swear on my honour that I don't possess a television. (Why has no-one thought of this before for all sorts of taxes?)

Alain Minc proposes asking every citizen to pick up the first €100 euros of the health costs (including hospital charges) paid for by the State (with of course an exemption for those with meagre resources). Upton-on-line seems to recall that this approach is an absolute winner until implemented. (M Minc, in fairness, describes it as 'revolutionary' and unlikely to happen). Perhaps the biggest sacred cow to be put on the table is the 35 hour week. It was immediately taken off again by the Prime Minister who still has it in the 'unmentionable' category. But it won't go away.

France's fiscal problems are not unique. They have, in various shapes and forms been faced by politicians in every western democracy who have viewed economic growth as a given available for redistribution. When the redistributive process becomes so inflexible and creaky that growth grinds to a halt, the crisis that follows is painful. But nowhere has it been terminal. Countries like France were rich enough to delay taking action for longer than most. No doubt she will undertake the appropriate Atkins plan. The expressions of national woe and musings on 'unthinkable' solutions are a healthy sign.

It's countries like Australia, New Zealand and Britain that should be worried. As with all sorts of degenerative diseases, the damage is done during the good times. All sorts of problems get bought off and new layers of bureaucratic fat get laid down. Labour market 'protections' are happily embraced. And each, looked at singly, can be stoutly defended if not always on grounds of principle, then on grounds of broking a deal. But combined they add to a slowly gathering sclerosis. As France goes under the knife, on-lookers would do well to note that, there but for the grace of God or a dour finance minister, go they.


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