Thursday, August 12, 2004

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.