Do Kiwis Care About Democracy?
29 July 1999
Release - Magna Carta Society
The amendments to our liquor laws is not the issue - what concerns the Magna Carta Society is that in exercising a personal conscience vote politicians, not for the first time, have voted against the will of the people.
Society researcher John Howard said, representative democracy has, as a first principle, the informed consent vote or, at the very least, consultation. In other words, the democratic will of the people as expressed in Parliament.
If we allow the energetic men and women among us to believe we are a people tired of liberty, the temptation to take it from us will be irresistible.
There were over 2,000 submissions to the select committee hearing on the liquor law amendments with the majority of them against. Moreover, TVNZ conducted a public opinion poll where 62% dis-approved of lowering the drinking age.
A nationwide referenda would have settled the matter more clearly, but then, politicians do not have to take notice of them either.
So where does that leave representative democracy? Lon Fuller, writing in the 1958 Harvard Law Review had this to say;
"The German lawyer was peculiarily prepared to accept as "law" anything that called itself by that name, was printed at Government expense and seemed to come "von oben herab." Hitler did not come to power by violent revolution, he was chancellor before he became leader. The exploitation of legal forms started cautiously and became bolder as power was consolidated. The first attacks on the established order were on the ramparts which, if they were manned by anyone, were manned by lawyers and judges. These ramparts fell almost without a struggle."
Our Parliament claims it has supremacy from the English Bill of Rights Act 1689. Article 9 states; "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court of place out of Parliament."
"ought not to be" - not cannot, will not, or shall not. Elsewhere in the Bill of Rights the intention is very clear in the words "is unlawful - "is illegal" is "against law."
So the intention in the 1689 Bill of Rights Act is quite clear - there was never meant to be an absolute parliamentary supremacy which our politicians claim today.
Furthermore, the politicians of 1688 were vindicating and asserting their ancient rights and liberties against a despotic King James.
They were not busy making a sort of Trojan Horse, from the belly of which could never emerge a means of safeguarding those ancient rights and liberties which they held so vital and fundamental . It is clear the intent of the measures in the Bill of Rights Act were to prohibit a Monarch (or others hostile) from using any means of harassment to block or interfere with the processes by which Parliament makes laws.
The Act was preserving the supremacy of Parliament over any future Monarch who might feel disposed to assert the opposite. Parliament is sovereign in that sense, not in the sense that it is incapable of doing wrong or that no one may question an Act of Parliament which removes or overrides the guaranteed ancient rights, liberties and freedoms of the people in Magna Carta and other of our ancient and noble constitutional documents.
Of course Parliament can make laws. But when the actions of politicians override the ancient and hard-won principles of constitutional fundamental rights of the people, and does not carry out their will, we are in dangerous and unwanted territory.