Save yourself $15

Following on from my comments on People Power, here's the contents page with links to the material available on the internet.

• Introduction
• NZs Urgent Need for Real Democracy - Dr Robert Anderson
• Full Democracy - Brian Beedham (The Economist) (full version)
• David Lange - Interview with Jonathan Eisen
• Geoffrey Palmer Misses The Point on BCIR - Jonathan Eisen
• Direct Democracy: Our Coalition with the People - NZ First Policy Statement
• A Sure Way to Restrict the Power of the State - The Rt Hon Winston Peters
• A Swiss Perspective - Erwin Alber
• The Greens and BCIR
• BCIR: How It Can Work in New Zealand - Steve Baron (a paste-up and slight edit of three pieces: 1 2 3)
• BCIR Q & A - Steve Baron
• Limitless Government? - Roger Kerr
• An Australian Politician Speaks Out - Russell Cooper
• BCIR Controls the Power of Elites - Steven Neitzke
• Christine Fletcher: Beyond MMP
• How I Changed My Mind on BCIR - Simon Upton
• The Referendum party of the UK
• Sleepwalking into the European Superstate - Sir James Goldsmith
• How to Fire Your MP - Wikipaedia (This being Wikipedia, it has been modified since)
• Recalling the Father of Recall - Hiram Johnson (full version)
• So Now What Happens? - Roger Monckton

It's not nearly as bad as the impression I got while reading the book, but its still a hell of a lot of second-hand material they're trying to charge for...

Good on them

A while ago I mentioned that the National Front were coming to Wellington for a demonstration. Now it seems that Wellington residents have risen to the occasion and are organising a march against racism to show them they aren't welcome.

The aim was nicely captured by one organiser, who was quoted in the Herald as saying:

This is a democratic society, they [the NF] have a right to be organised, they have the right to oppose anything. We have to show we are much better than them for society

But it's not just about the National Front - the march will also be opposing humiliating immigration policies and Maori-bashing. I guess Don Brash had better watch out...

Constitutionalising the Treaty, part II

Antipodean Journal has more on the subject of Waitangi and the separation of power, but some of it seems rather confused. For example, when commenting on what JustLeft called "version 2" of our constitutional history (in which "Aboriginal title was, arguably, extinguished by the English common law that arrived with the Crown"), he says:

The problem with this version is contained in the last sentence. Where the British empire expanded into regions inhabited by indigenous peoples, the common law dictated that aboriginal rights of sovereignty pre-existed the right of the Crown. Sovereignty could be transferred by force or by treaty, but it had to be transferred.

This is simply wrong. There are no common law "aboriginal rights of sovereignty". There are common law aboriginal property rights, or aboriginal title, which predate the crown and survive colonisation unless extinguished or abandoned, but property is not sovereignty.

What version 2 rests on is an explicit denial that indigenous peoples are sovereign. You can turn up and sign a treaty with them, but according to the legal doctrines favoured by version 2, it's not a real treaty because "savages" lack the capacity to sign one, and it's also not a real cession because they have no actual sovereignty to cede. This is seen perfectly in Lord Normanby's despatch to Hobson, as quoted by Justice Prendergast:

We acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible to make such acknowledgement in favour of a people composed of numerous, dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate in concert

According to Prendergast, "such a qualification nullifies the proposition to which it is annexed"; New Zealand was "thinly populated by barbarians without any form of law or civil government", and hence sovereignty vested in the "first civilised occupier" to come along and plant their flag. But however morally abhorrent this doctrine may be, it's not actually incoherent; version 2 tells an internally consistent (but repugnant) story.

Further on, Rohan argues that New Zealand's nature as a unitary state has meant that we have been unable to justify the creation of a supreme court to limit state power. This is true insofar as such courts haven't been required by the political structure (by contrast, they are required in non-unitary or federal states, to mediate the distribution of powers between different levels of government). But that doesn't mean we can't have one!

We don't need to view New Zealand as a non-unitary state in order to limit the power of Parliament - all we have to do is decide that that power ought to be limited, that there are some things that the government has no right to do. We saw an effort to do this in the 80's, when Geoffrey Palmer attempted to give us a binding and enforceable bill of Rights. Interestingly, the original version incorporated the Treaty, including the following clause:

4. The Treaty of Waitangi

(1) The rights of the Maori people under the Treaty of Waitangi are hereby recognised and affirmed.

(2) The Treaty of Waitangi shall be regarded as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit and true intent.

(3) The Treaty of Waitangi means the Treaty as set out in English and Maori in the Schedule to this bill of Rights.

Unfortunately, this foundered on numerous objections, and the binding and entrenched status was watered down by a Parliament jealous of its own sovereignty. But there's no reason why we can't try again, but I suspect we'd all want a little more idea of the balance between Kawanatanga katoa and tino rangitiratanga before doing so.

Indigeneity

What does it mean to say that Pakeha have become indigenous too? Part of it seems to be an appropriation and sharing of the Maori concept of turangawaewae. Sandra Paterson has an excellent piece in the Herald about this, and how this land is her land too...

Maori are New Zealanders too

Those who think I'm being unfair below by suggesting that those opposed to the idea of vesting the foreshore in a "Treaty Council" want a New Zealand run by and for Pakeha might want to consider this: the core of Bill English's campaign on the foreshore and seabed was the cry that "the beaches belong to all of us". He even explicitly said that "we all deserve a say". Well, Maori are a part of "all of us". It follows that they also "deserve a say" on how shared resources - such as the beaches - are managed. Denying them this say is to deny that Maori are New Zealanders too, and (by implication) saying that only Pakeha count.

This is not to say that a "Treaty Council" is the only solution. But it may just be the way out of this whole godawful mess. The symbolism of appealing to the Treaty and its spirit of partnership and cooperation cannot be understated. It's defensible on strictly liberal grounds as well as the Treaty's quasi-contractual ones; it stresses that this is a country where the beaches belong to and can be enjoyed by everyone, while holding out a hand to Maori and promising that their rights will be respected. It avoids creating outright winners and losers, keeps people talking, and (most importantly) gives everyone a say.

The more I think about it, the more I like it. If the government is going to insist on denying due process, then this is the way forward.

Picking fights

David Farrar has managed to turn my opposition to the use of information extracted by torture as evidence in a court of law into opposition to acting on it to prevent stadiums being blown up and such. Hardly. By all means, arrest people and evacuate places - but don't expect to be able to prosecute later unless you have real evidence that can be cross-examined and isn't tainted by physical and mental coercion.

He also disagrees with my position on parole. To which I'd like to point out that, sentences being finite, almost every prisoner will be eventually be released - which means we are going to have to deal with the problem of reintegrating criminals back into society one way or another. How does he suggest we do it? Continue to dump people on the street? Or just stick his fingers in his ears and pretend that there is no problem, and that if you just threaten to throw more people in prison for longer (something with "no significant deterrent effect") then the very real problems faced by former prisoners of finding alternatives to crime will just magically disappear?

As for the Treaty Council, I'm quite aware of what the foreshore decision said, and my position is that Maori should be allowed to take their claims to court just like everybody else, as a simple matter of equality before the law (hey, didn't Don Brash say something about that?) But if the government is going to deny the certainty to be found in due process, it is going to require a political solution which avoids leaving Maori with the feeling that they are being walked all over by the majority - otherwise, this is just going to fester and be relitigated whenever there is a change of government (especially if the Maori Party sticks around). Management by a "Treaty commission" is one possible solution in this vein. It's not saying "Maori own the country and Pakeha are only tenants", it's saying "we all own it, and we will manage it together". I guess someone who believes that New Zealand should be run by and for Pakeha would find that threatening, but I certainly don't.

Thoughts on People Power

What do you get when you turn a couple of loonies from Investigate magazine loose on the topic of direct democracy and binding citizens'-initiated referenda? An overpriced, vanity-published piece of shit like People Power. The book is a compilation of material, almost all of which is available on the internet for free, and most of which proves the point that the biggest problem with the idea of BCIR is the people who support it.

There's material in here from Winston Peters, stuff from the anti-EU UK Referendum Party (who seem to spend most of their time watching out for the Black Eurocopters that will take their precious pound away), and from people who seem to think that the idea of "checks and balances" is for wimps. Much of it is simply frothing about how the government has done unpopular things (varying from removing the GE moratorium to decriminalising prostitution to not sticking prisoners in windowless cells and feeding them only bread and water) and how binding referenda would put a stop to all that. Then there's the piece by Roger Kerr - a man who has consistently viewed the public as stupid proles who must be excluded from policymaking as a "special interest", and who opposed MMP on the basis that the requirement for wider democratic consultation would prevent the government from adopting necessary but unpopular policies. Now that the majority is on the other foot, he's seemingly changed his opinion. I'm sure the near-success of the Campaign for Better Government has nothing to do with it...

The core of the book is the Voters' Voice BCIR proposal. Unfortunately, this suffers from the same problems as New Zealand First's - it has loopholes you can drive a Mumak through, and little thought has been given as to how it would be integrated into the rest of New Zealand's constitutional and legal structure. Checks and balances are of course right out. It's a shallow treatment which does the idea of BCIR a great disservice.

However, it's not all bad. There's several informative articles in there (notably those from the Economist and Simon Upton), and both Christine Fletcher and David Lange have obviously grappled with the deeper issues (though it would be nice if Eisen would shut up and let his interviewee talk, rather than insisting on interviewing himself). But these pieces are a definite minority, and don't justify the cover price. Save yourself $15 and read it on the net instead.

Interesting

Select committee hearings have turned up another interesting possible solution to the foreshore and seabed row: vesting the foreshore in the Treaty.

The idea is from constitutional lawyer and author Alex Frame, and would involve the stablishment of a "Treaty Council" to manage and oversee the foreshore for the benefit of all New Zealanders:

The constitution of the proposed Treaty Council is intended not only to assure Maori real representation in the decision-making process... but to draw on Maori wisdom and concepts so as to produce a better management regime for the foreshore and seabed than could be arrived at by the executive branch of Government through its existing mix of agencies.

I like this idea - it captures the idea that this is not a country where you can own the beach, but a country where they are for everyone, while making significant concessions to Maori. If the government is going to insist on extinguishing customary title, then this would be a far, far better way to do it.

Null and void

The California Supreme Court has annulled all the gay marriages performed in San Francisco earlier this year on technical grounds. However (and this is notable) it has not addressed the wider issue of the clash between the state constitution (which outlaws discrimination) and the proposition which defined marriage in heterosexual terms only. That issue goes before a lower court next month, so there's still hope for a just decision.

And if not, well, I guess California gays can always take their "pink dollar" to a state which respects them, like Massachusetts.

Giving the green light to torture

The British Court of Appeal has ruled that British courts can use evidence extracted by torture, as long as British agents had not "procured" or "connived" at it. Turning a blind eye, or not inquiring too closely as to how the information was gained is perfectly acceptable, however. The British government has of course welcomed this monstrous decision, with David Blunkett (the British version of John Ashcroft) saying that while they (obviously) "unreservedly condemn the use of torture",

"it would be irresponsible not to take appropriate account of any information that could help protect national security and public safety".

Sorry, but no. Torture has no place in any legal system, and the willingness to use information extracted by those means makes a complete mockery of any condemnation. Gareth Peirce, a solicitor in the case, is right: Britain has completely lost its way, legally and morally...

Iraqi death penalty causes problems

Danish troops in Basra are now refusing to hand over captured Iraqis because they may face execution. Meanwhile, the British have caved as usual, and are claiming that the EU ban on their country extraditing peopel to face execution or facilitating the death penalty in any way somehow does not apply to their activities in Iraq.

I guess we can expect the Danes to go home at the end of their stint in Iraq unless they see some progress. Unlike the British, they take the EU's human rights provisions seriously.

As for New Zealand, I've yet to see any indication of a condemnation of Iraq's reimposition of the death penalty from the New Zealand government, or any reaction at all to the regime's use of torture. How much longer will we remain silent?

Inside Al-Qaeda’s Hard Drive

There's an interesting article with the above title in The Atlantic this month, by a journalist who acquired a couple of computers stolen from Al Qaeda's office the night before the fall of Kabul. He's spent over a year translating and decoding the files and interviewing former jihadis to find out what it all means. The result is an unprecedented insight into the operations and office politics of Al Qaeda in the runup to September 11th.

Here's the money quote:

Perhaps one of the most important insights to emerge from the computer is that 9/11 sprang not so much from al-Qaeda's strengths as from its weaknesses. The computer did not reveal any links to Iraq or any other deep-pocketed government; amid the group's penury the members fell to bitter infighting. The blow against the United States was meant to put an end to the internal rivalries, which are manifest in vitriolic memos between Kabul and cells abroad. Al-Qaeda's leaders worried about a military response from the United States, but in such a response they spied opportunity: they had fought the Soviet Union in Afghanistan, and they fondly remembered that war as a galvanizing experience, an event that roused the indifferent of the Arab world to fight and win against a technologically superior Western infidel. The jihadis expected the United States, like the Soviet Union, to be a clumsy opponent. Afghanistan would again become a slowly filling graveyard for the imperial ambitions of a superpower.

Like the early Russian anarchists who wrote some of the most persuasive tracts on the uses of terror, al-Qaeda understood that its attacks would not lead to a quick collapse of the great powers. Rather, its aim was to tempt the powers to strike back in a way that would create sympathy for the terrorists. Al-Qaeda has so far gained little from the ground war in Afghanistan; the conflict in Iraq, closer to the center of the Arab world, is potentially more fruitful. As Arab resentment against the United States spreads, al-Qaeda may look less like a tightly knit terror group and more like a mass movement. And as the group develops synergy in working with other groups branded by the United States as enemies (in Iraq, the Israeli-occupied territories, Kashmir, the Mindanao Peninsula, and Chechnya, to name a few places), one wonders if the United States is indeed playing the role written for it on the computer.

Only an American would even wonder. From down here, it looks absolutely clear that that is exactly what is happening. The United States has been played; their desire for revenge and not to look "weak" in the face of terrorism has led them to be Al Qaeda's best recruiters, and their pursuit of military rather than political "solutions" is doing more than anything else to bring about Osama bin Laden's dream of a fundamentalist "war of civilizations" between Islam and the west.

The "gay agenda"

Leading an "ordinary domestic life", just like anybody else. How can anybody find that threatening? How can anybody find it objectionable?

Parole

The killer of David McNee was on parole, and there's already the usual howling about why we let people out of prison on parole. I think a better question is why the hell was someone on parole living under a bridge and having to work as a prostitute? Don't we ensure that these people have somewhere to go and something to do?

The problem is not with parole, but the criminal underfunding of those who supervise it. People cannot be successfully reintegrated into society if they are just dumped on the street with the clothes they stand up in and a few dollars and told to get on with their lives. If we want this to work, we need the probation service to be actively assisting those on parole (and those at final release), ensuring that they have homes and jobs - and this means funding them to do it. Otherwise, passive neglect is simply going to lead to more problems.

Every prisoner will theoretically be released from prison at some stage, and so the problem of reintegration has to be addressed. Parole is a good way of doing it if we do it properly. And if we are not going to do it properly, and we allow prisoners to drift back into criminal activity through neglect, then we have no-one to blame but ourselves.

Supersize Me

I'd like to think that this movie will help me kick my McDonald's addiction, but if Fast Food Nation didn't do it, then I doubt this will. Still, it was a scary movie - if only for showing how much larger American portions really are. 1.2 L of Coke with your burger? Would you like a catheter with that?

Constitutionalising the Treaty

Antipodean Journal has an interesting post about the Treaty and the separation of powers, in which he argues that the Treaty's status as "the legal basis of Crown sovereignty in New Zealand" requires "an independent authority capable of judging Parliament's fulfillment of its responsibilities" - in other words, for judicial review of laws to ensure consistency with the Treaty. JustLeft follows up with a post on our two versions of constitutional history.

I don't have much to add (yet), but here's a couple of thoughts: firstly, the Treaty is obviously not the legal basis of the crown's sovereignty, for the simple reason that there can be no such basis. Sovereignty does not flow from law; it flows from popular consent. And that means the consent not just of Maori, but of Pakeha as well. Ths doesn't mean that the Treaty is irrelevant - it is a potent symbol of consent, and the legitimacy of the government will inevitably be judged by how well it lives up to its end of the bargain - but those parts of it dealing with cession and sovereignty are essentially only of historical interest.

Secondly, having the crown be "the sole arbiter of its own justice" has led to gross injustices in the past, is leading to injustice now over the foreshore, and will lead to further injustices in the future if Don Brash gets elected. But we do not need to make the Treaty fully justicable in order to put a stop to that. "Treaty clauses" in legislation go a long way towards preventing future breaches, and provide Iwi with a course of action if their rights are threatened. The problem is that the government can always set out to consciously violate the Treaty, as it has done over the foreshore and seabed issue, under cover of "Parliamentary sovereignty". Entrenching the Treaty would (almost certainly) prevent this, but I can't see that happening in isolation; it would be as part of a general shift to a justicable, written constitution with general human rights provisions. Unfortunately, the people in favour of this sort of a move seem to also be the ones who want to write out the Treaty and pretend that it never happened (or that only Article One happened)...

There is however another way to view the Treaty: not as our constitution, but as our Declaration of Independence. A mission statement, a goal to strive for, something that should guide our laws "so that effect may be given to its spirit and intent". This suggests an approach similar to that suggested by David Slack in Bullshit, Backlash, and Bleeding Hearts: looking at every piece of legislation to see what Treaty issues come up and how they are best addressed, and using specific clauses to do so rather than a catchall appeal to "Treaty principles". This keeps power in Parliament, not in the courts. On the other hand, it doesn't solve that central problem of enforcability.

The real problem though, as JustLeft points out, is reconciling the two stories of our constitutional history. I don't have any answers to this, except to encourage people to study the subject, in the naive belief that the facts speak for themselves. Failing that, we may just have to wait for nature to take its course. There's a cynical story about scientific progress, that the balance shifted from the corpuscular to the wave theory of light chiefly because the advocates of the former theory had died. Sadly, social progress often works in the same way, through attrition rather than argument.

More on Iraq torture

While it hasn't yet been picked up by the major media, the Oregonian is continuing to push this, with an editorial entitled Iraq incident requires answers:

the United States government should make it clear to those in the Iraqi government that our massive support has some conditions regarding their human rights record.

Indeed, the only means that the United States has of promoting the future good conduct of the Iraqi regime is to apply real diplomatic and political pressure now.

That applies to us just as much as the Americans - yet we are staying silent. Why isn't Phil Goff issuing statements demanding that the Iraqi government respect human rights and prosecute those responsible for torture? Why are our troops still there? Will we be sending a reconstruction team to help out Mugabe in Zimbabwe as well?

The one good thing to come out of the whole Iraq debacle, the one thing that allows anyone to argue that the war was justified, is that Saddam is gone and his regime of torture ended. Now it turns out that the US killed 13,000 Iraqi civilians simply to replace one bunch of despotic torturing bastards with another - and is killing more every day to keep them in power. We should not be a part of this. Supporting torturers goes against everything our country is supposed to stand for. The only assistance we should be giving in Iraq now is to human rights NGOs and war crimes investigators.

Not good enough

Ethnic Affairs Minister Chris Carter is seeking to amend the Identity Bill to ensure that current New Zealand residents are not disadvantaged by the extension of waiting times. It's a good step, but not good enough. The extended waiting times for citizenship are fundamentally at odds with our values as an open, welcoming, and generous country. They should be scrapped rather than mitigated.

Protests and counter-protests

Progressives in Wellington have stepped up to the plate to oppose Destiny Church's "enough is enough" hate-rally against gays, by organising a couple of counter protests. The first, on the theme of "hate is not a family value", starts at Te Aro Park. The second is a rally for human rights at Parliament at 11:30. Both are on Monday, August 23rd - the same day as the Destiny Church event.

If you're in Wellington and support civil unions, then please go to one of these events.

Getting the story straight

The government can't seem to get its story straight over Amokura Panoho. In Question Time today, John Tamihere claimed (or rather, agreed with the claim) that the meeting which sparked the complaint against Ms Panoho had been held on government time:

Rt Hon Winston Peters: Could the Minister tell the House and the country whether his concern about this person’s attendance was that the person in question was attending business in respect of the Tariana Turia party, at the time she should have been, and was employed to be, doing work on behalf of the New Zealand taxpayer?

Hon JOHN TAMIHERE: Yes.

Yet later, Steve Maharey seems to be denying it:

Rt Hon Winston Peters: Is it a fact that a substantial number of the people who attended that hui were there whilst being paid by the taxpayer to be somewhere else - namely, at their job - and if it was wrong for Ms Panoho to be in that situation, which I think most people would accept, then what is being done about the remainder of those who left their job that day to attend that hui at the taxpayers’ expense?

Hon STEVE MAHAREY: I advise the member that the meeting was in the evening...

Who's right? Well, Ms Panoho's former employer seems to back Maharey. Does this mean that Tamihere's vindictiveness has led him to lie to Parliament?