The Absolutely Foreseeable Consequences Of MMP

Upton-on-line

Diaspora Edition

The Absolutely Foreseeable Consequences Of MMP

http://www.arcadia.co.nz
7th November 2005

In this issue

A told-you-so commentary on the joyless world of MMP from former FPP supporter, Simon Upton; distinguished diasporan lawyer, Jeremy Waldron, boldly suggests that academics can disagree without being rednecks; upton-on-line apologises to Dr Elizabeth Rata for having been thoughtless enough to have damaged her reputation by commenting on her writing; Bill English paddles his own waka into the academic piranha pond; and Vaclav Smil says told-you-so in the wake of Hurricane Katrina.

Now that New Zealand has a Government once again, it may be the moment to observe one of the absolutely foreseeable consequences of MMP that is being played out. Upton-on-line recalls, in another life, leading the ‘No' vote opposing the change to proportional representation in partnership with the then distinguished opposition MP, Helen Clark. As the parliamentary face of the ‘No' campaign we had about as much chance of turning the tide as good King Canut.

Few people bothered to engage in a substantive argument with us – it was much easier to dismiss us as the self-interested denizens of a cosy two-party cabal. So after a decade's sackcloth and ashes, upton-on-line meekly offers a ‘told you so' sort of observation about a not-so-agreeable consequence of the political fractionation that was the inevitable consequence of MMP.

Many have remarked on the extent to which extraordinary leverage is given to very small parties to make or break governments, and insert their political priorities into the governance of the country. Rather fewer have remarked on the damage this has done to the policy programmes of the major parties. The effect has in some cases been marked. Very simply, the major parties can afford – especially in Opposition – to take quite strident policy positions safe in the knowledge that they will never be in a position to fulfil them. While they make some party activists and MPs feel good, these positions don't necessarily encourage serious thinking – or the sort of pragmatic big picture reasoning that a stable democracy cries out for.

National's policy of abolishing the Maori seats is a case in point. In the first place, it was highly unlikely that National could ever have carried its policy through since there were never going to be a majority of votes for repeal in the House. But even if they had had the numbers, would it have been an appropriate step for a simple parliamentary majority to impose? The fact is that Maori representation is, in a sense, part of the warp and woof of parliamentary democracy in New Zealand. It's not an immutable thing. But given its longevity, good reasons for its removal were required. Upton-on-line had trouble locating them.

Certainly, since changes to the formula for determining the number of Maori seats there has nothing undemocratic about giving Maori voters a choice of where they enrol and adjusting the number of seats accordingly. If as an institution the Maori seats are wanted by Maori voters, they will remain in exact relationship to the number who enrol. If they don't serve a purpose for their electors – and those electors vote with their feet and enrol on the general roll – then they will wither away. So what's the problem – why did a major political party have to decide that that was a choice Maori voters shouldn't have when it had been happy to give them that choice for decades previously?

One suspects it flowed from a political calculation to win support from one section of voters regardless of the views of another group. Nothing new in that – it's what party politics has always been about. Except that there are some issues where a broad church view of politics would weigh in favour of living with something familiar if quirky. That's the sort of view conservative parties as distinct from ideologically liberal parties have traditionally taken. But broad church views don't suit fractionated politics.

In overturning more than half a century's acquiescence in a uniquely New Zealand institution, National followed the predictable logic of MMP. Under the old FPP system, the major political parties were in fact broad coalitions within which compromises were negotiated behind closed doors. It gave remarkable stability to some elements of our political life. Under MMP, the negotiations are all out in the public arena and party policies are more shrilly sectional in the interests of ‘branding'.

Whether it makes for better government is a moot point. If, as seems not unlikely, some sort of smouldering constitutional debate is going to continue over the next decade, one of the issues all parties are going to have to confront is how – beyond mere words – any constitutional settlement is going to take account of the fact that one group of citizens claims a particular status as the descendants of the original inhabitants of these islands. There aren't any federal or secessionist options realistically available. Neither are there any romantic power-sharing mechanisms that would not undermine democratic equality at the ballot box.

The Maori seats are a unique – and broadly acceptable – acknowledgment of a particularity about New Zealand's democracy and history. They detract nothing from the democratic integrity of our system. Their place in the historic development of the country is an honourable one. The problem for National is that it has made a party political issue out of something that formerly transcended party politics. Whereas opposition parties once stood for office on the basis that, if elected, they had implicitly to govern for all New Zealanders, they now run for office on the basis that the national good is whatever a post-election round of deal-making produces. In the process, divisive policy positions adopted for electoral consumption may end up souring the climate for durable policies that can command the broad support of the nation. For that, we can ‘thank' MMP.

A Guest lecture

Upton-on-line's attention was recently drawn to a lecture by diasporan New Zealander Jeremy Waldron , University Professor in the School of Law at Columbia University. Professor Waldron had been invited to deliver the 2005 Guest Memorial Lecture and chose as his topic ‘ The Half-Life of treaties: Waitangi, Rebus Sic Stantibus '.

Readers are advised to follow it up with Otago University which, one assumes, will be publishing the text in due course. Its importance is as much to do with academic debate as it is with its substantial contribution to treaty discourse. The substance side of the lecture is of course worth reading in its own right. Waldron simply asks whether treaties at international law or between states and first peoples have a half life – whether they speak authoritatively and finally only as long as they bear some practical relationship to the world in which they are appealed to: rebus hic stantibus – or whether they are in fact immutable on the basis that agreements must be kept – pacta sunt servanda.

It is a lively and extremely readable exploration of whether (and if so how) the Treaty of Waitangi can continue to cast a determinative, debate-stopping influence on the flux of political and constitutional developments; or whether, on the other hand, events have so changed that to continue to appeal to it would be to stifle rather than facilitate the governance, peace and general welfare of the realm. Or, again, is it an organic and evolving text onto which we can graft our contemporary hopes and fears?

On this last, Cookean formula, Waldron is less than flattering: “…the attitude which treats treaties as living and evolving organisms has its limits. After a while, the treaty can become a rather self-defeating and restrictive matrix on which to project flexibility in the light of modern circumstances; it can become an obstacle for updated relationships rather than a facilitator of that evolution.”

But all of this, readers will want to explore for themselves. With illustrations of treaty-demise from situations as diverse as the dissolution of the Warsaw Pact, the Ottoman Empire and contested Federal jurisdiction over treaties between the United States and indigenous peoples in North America, Waldron places the Treaty of Waitangi in a terrain littered with human attempts to close off the past and provide guarantees for the future rather than some sort of closed treatyological mausoleum in which it is the only exhibit.

Waldron's treaty conclusions, it would be fair to say, doubt the ability of provisions written 165 years ago to speak authoritatively given fundamental changes in governance, demography, territorial and social realities today. As he puts it “anyone who thinks responsibly about a document said to be so important to New Zealand as the treaty of Waitangi is, must think also about the possibility of its obsolescence or its having been overtaken by events or changes in circumstances since 1840.”

An unexceptionable conclusion one might think. But – and this is the remarkable point – Waldron feels the need to justify coming to the debate with such questions. He diagnoses, in New Zealand, a “rather inward-looking world of Treaty-jurisprudence.”

One of the things that strikes me when I visit New Zealand is that although everyone talks about ‘the Treaty debate' there is really very little real adversarial discussion of the fundamental status of the Treaty of Waitangi in academic circles. I'm thinking particularly of academic law. There's next to nothing in the university law reviews: I hope Otago will publish this! Andrew Sharp's sensitive and intelligent discussion in Justice and the Maori is a fine exception; but Andrew is a political scientist, not a lawyer. And Paul McHugh's careful and considered work is important too, but Paul works in Cambridge, mainly in England, not in the New Zealand legal academy.

Maybe every legal academic in New Zealand really does support the Treaty and no one has anything critical to say or publish. That would be a remarkable consensus, if it were true; unprecedented in fact. You can't get most academics to agree that the sun will rise tomorrow, let alone that a Treaty signed in the middle of the nineteenth century should continue to be sacrosanct…

He closes with a message for his peers.

We have a responsibility as tenured academics to explore different frameworks and new and perhaps disconcerting pathways of thought. If we are not prepared to do that, we don't need our tenure and many of us are wasting our salaries. I am not saying that everyone needs to start writing and publishing at variance with their own deeply held beliefs. But perhaps New Zealand academics should be a little more reluctant than they are to use words like ‘redneck' and ‘racist' to stigmatize anyone who wants to think carefully or reflectively, or critically about these matters.

Ideological conformity

The Waldron lecture happened to arrive on upton-on-line's desk almost simultaneously with the still smoking embers of a minor academic skirmish in the pages of Sites , New Zealand's academic anthropology journal. It was both a comforting and disturbing issue – comforting because it disclosed the existence of real debate between red-blooded academics; disturbing because it illuminated exactly the sort of name-calling hothouse that too often passes for debate.

Upton-on-line doubts that many readers will want to explore Sites, Volume 3, No 1 (2005) in which Auckland University's Christopher Tremewan decided to broach the vexed topic of Ideological Conformity: a Fundamental Challenge to the Social Sciences in NZ . Written explicitly in the wake of Don Brash 's Orewa speech, Tremewan reviewed some recent writing on the Treaty and cultural debates in New Zealand and in particular a phenomenon described as cultural fundamentalism. The subject matter was self-evidently controversial but expressed in the sort of careful, reflective way urged by Waldron. Not so all of the commentary published in the same issue by Tremewan's academic peers. With Waldron's admonition echoing in his mind, upton-on-line was particularly struck by a judgment of Tom Ryan from Waikato University who had this breezy throw-away verdict for Elizabeth Rata, referred to approvingly by Tremewan and whose writing has also surfaced in previous editions of this publication:

At times I am mollified by her affirmations of a continuing commitment to social justice and the political left – but then my doubts return when I hear gurus of the right like Simon Upton and Frank Hayden singing her praises.

Mr. Hayden, with whom upton-on-line is unacquainted, will have to speak for himself. But upton-on-line apologises unreservedly to Dr Rata for having so damaged her reputation by being thoughtless enough to have read, let alone commented on her writing. Careful and reflective commentary by academics of Dr Ryan's stature are of course beyond question. But if the debate were to end up in the hands of mere lay people, where might things end? Dr Rata should take more care about who ends up reading her work. Taint by association with someone outside the priesthood is a terrible stigma to bear.

Worse to come

Former politicians are bad enough. But there was worse to come when, only a few short weeks after the Waldron lecture, a current senior politician echoed Waldron's call for debate and insistence that academia should be a place where accepted wisdom in cultural and treaty matters is properly challenged. Poor Professor Waldron's reputation is probably now at risk!

An English Treaty

More than three years ago, Bill English (then Leader of the Opposition) delivered rather a good speech entitled The Treaty of Waitangi and New Zealand Citizenship (see upton-on-line archives, 23 rd May 2002). In fact it was more than rather good – the best political speech on the subject upton-on-line has read. Some of us wondered whether this was a case of “most politicians can only muster one really great speech in a career” and lost hope of a sequel. But just two weeks after the last election, Mr English (now an opposition education spokesperson and eminence grise of conservative politics) took up the theme again. If may not have been quite so intellectually audacious. But it demonstrated the same determination to say iconoclastic things in Mr English's legendary low intensity, non-flammable prose.

Treatyology defined

Mr English's cool assertion is that when it comes to the Treaty, just about everything is open to debate. While that's blindingly obvious to most New Zealanders, Mr English harbours the suspicion that it may be a less robustly defended notion in academic circles where fashionable formulae count for rather more than they do at the local panel beater's. Asked to deliver the 2005 Robert Chapman lecture at Auckland University, Mr English defined his target in the following terms:

Let me start, then, with a proposition that should not have to be made to educators: that the terms of cultural diversity are open to debate. The status of the Treaty and the relationship of Maori and non-Maori citizens is open to debate – and should be welcomed by people of goodwill. It is neither racist nor narrow minded to question conventional wisdom or to suggest that this is a legitimate subject for genuinely public debate as distinct from specialist debate.

Let's call conventional wisdom on the Treaty, “Treatyology”.

Treatyology is public doctrine and public policy that refers to the Treaty of Waitangi as an expression of indigenous rights and indigenous law, and purports to be based on and derived from those rights and law. It asserts that the Treaty of Waitangi underpins a contemporary constitutional partnership between Maori and the Crown (or its agents such as this University), and that this partnership will continue to evolve in the direction of a bifurcated state.

Treatyology makes some bold assertions that many New Zealanders do not accept. Firstly, that Maori and the Crown are as distinct now as they were in 1840 when local rules were negotiated with a British official representing the UK Crown in New Zealand. Secondly that non-Maori and the Crown can be conflated together as if they are one and the same thing. Thirdly, that Article Two rights are indigenous rights and that these indigenous rights are quite different from the rights of citizenship referred to in Article Three. Fourthly, that there is an unbroken continuity between the governing entities represented at the Treaty's signing and today's iwi and hapu as governing entities. Fifthly, there is an assumption that those entities can effectively act today as they did in 1840, to secure separate rights for Maori under the Treaty. Finally this argument assumes that the Crown in 1840 and today are the same thing and that it behaves now as it did then.

All of these propositions are debatable.

Most debatable of all, in Mr English's book, is the suggestion that the Treaty provides a quasi-constitutional foundation for every aspect of political life and, specifically, distinguishes special qualities of citizenship that flow from Maori descent. Mr English explains why this runs so deeply against the grain with many Pakeha New Zealanders:

An implication of Treatyology is that citizenship can and should be divided to express a special status for Maori. This notion runs sharply counter to broad public support for the idea of “one law for all”. Is this attitude the product of ignorance or racism, or is it rooted in something altogether more substantial? History might tell us why many New Zealanders do not like the concept of differentiated citizenship. Pakeha history did not begin in 1840 or even 1770 when Captain Cook first anchored off the South Island. To focus New Zealand history purely on the events since 1840 is to mistake the ship for the sea on which it sails.

Many New Zealanders react badly to the idea of a differentiated citizenship because their political history is a history of overcoming religious and tribal divisions and the struggle to form a democratic citizenship. As a Member of Parliament I experience every day deeply held assumptions about the relationship between the monarch, Parliament, and the people and how these change over time. The rituals that will surround the start of the next Parliamentary session are odd, but they hark back over hundreds of years to a time when people fought – and killed - for what we now take for granted: one citizenship under a constrained constitutional monarch.

Our collective memory and traditions go back even further. Magna Carta, still mentioned regularly on talkback, stands removed from us by 790 years. It is as remote from us and our society as the arrival of the first canoes. But it represents a cultural continuity – a living reflex about political arrangements that were already ancient by 1840.

And we still live with the echoes of past battles over matters no longer controversial at all.

When I was a new candidate in 1990 in the seat of Wallace, I was asked more than once the JFK question about my allegiance to the Crown or the Pope. Ours is a political tradition which, through bitter experience, has learnt not to make a window into men's' souls. We hold at once a fear and a respect for the essence of each other's beliefs. Our traditions have evolved to contain the power of those beliefs. I won't tell you that you are wrong, just don't bring it up. Let's talk about something else, we say.

The arguments of the Reformation and Counter Reformation were at the front line of European settlement. Devastated by the Musket Wars, many Maori looked to the Bible and the Crown as sources of Law to replace a broken social order, and this was expressed eloquently in the Treaty.

I can trace my own New Zealand Catholic lineage through the Marist fathers, to James K Baxter to Jerusalem to Mother Aubert to Pompallier, who on the day, told the Maori chiefs not to sign the Treaty. Just last year Pompallier's bones were returned from France to the Hokianga, a symbol of a deep continuity reaching well beyond the Year Zero version of New Zealand history.

This particular story is one of thousands we all carry that link us through a collective memory. And like the Maori collective memory, the Pakeha collective memory consists of unspoken instincts underpinning a respect for a civil society built up over time. Respect for the dead, the team work ethic, careful neighbourliness, the bond of marriage, protection of minorities, egalitarianism. We do not often self-consciously express these because they are so deeply embedded.

Part of that collective memory is also the ability to merge cultures, and this accounts for the relative success of New Zealand in doing so. Pakeha roots in Great Britain are a tangle of Picts, Danes, Norse, Vikings, Celts and Normans plus all the escapees from continental intolerance over subsequent centuries. Our language is a fusion of Germanic and Latin influences. This is a story that does not lend itself to notions of racial purity. It is a history of wrestling religious and tribal differences to the ground and struggling towards a universal citizenship.

So all of this has to be unpacked in this land at the end of the world. Not for us the crowded resonance of Europe and the UK where the past stares back at every turn. Instead we have been working it out in the flat bright silences of the empty paddock or the raw new subdivision, against a horizon of bush and tussock ranges rather than cathedral spires.

Suspicion of defining people's rights by ethnic, gender or religious orientation is deep in our cultural DNA. So it should be no surprise that Kiwis hold strong views about the nature of citizenship, and it is a mistake to label those views as racist or thoughtless. It is this tradition and these codes of civil behaviour that lead me to the conclusion that Hone Harawira is wrong when he says the Treaty is the basis of good relations between people in New Zealand. The Treaty is one source of cohesion, but by no means the only one or the most important.

These are sentiments that many New Zealanders feel intuitively but struggle to express. The ‘flat bright silences' (a staggering image) are matched by inarticulate desperation on the part of many New Zealanders faced with gleaming tablets of constitutional lore. As Mr English says:

Both Maori and Pakeha have a turbulent and sometimes violent history. Each society has learned lessons about what constitutes a civil existence. The Treaty is an acknowledgment of these, not an embodiment of them. To rest the good relations between future generations on that document is to rest an office block on a pinhead. Our respective traditions and our growing shared traditions represent a far broader, stronger foundation.

The Treaty did not replace or overwrite what had gone before, and the traditions it represents are more powerful than the Treaty itself. A genuine, mutual respect for Maori and Pakeha civil society will be a far better basis for any relationship than ever more complex theories about the constitutional relationship between Maori and the Crown.

Treatyology as state-sponsored nation building has, in Mr English's view, failed. But just about everything remains possible. As he shrewdly observes, New Zealanders have from very early days hankered after an authoritative democratic State – one that will act in response to broadly held sentiments and one that guards jealously the right to revisit and revise. That has led to a governmental activism that has had its own disturbing momentum from time to time; but it is also a tradition that enables us to talk very directly to one another.

The problem with the Treaty debate of the last 20 years is that it has often lacked the sort of frankness that is the hallmark of New Zealand's political culture. A complicated vocabulary developed by an elite has often been used to give the impression of agreement where often much remains either unsaid or in dispute. Buying time with verbal formulae has its place. There are difficult issues that cannot be unilaterally ‘solved' by political declarations. Ambiguity can leave room for thinking to evolve.

That was no doubt what the framers of the newly minted treaty principles intended in the early 1990s. But beyond a certain point, ambiguity generates its own disquiet. Let us hope that the advent of a Maori Party in Parliament for the first time will be the catalyst for a much more frank exchange – and perhaps an acceptance of different perspectives – rather than an alleged consensus rooted in verbal formulae designed to sooth but not necessarily to illuminate.

Professor Smil on Katrina

Upton-on-line readers may recall references to Professor Vaclav Smil on the question of future energy technologies. Professor Smil is a man of many parts and many interests. Included amongst them is the question of risk – how we quantify and scale the threats that form so much sensational fodder for the daily papers. In the wake of Hurricane Katrina, he wrote this characteristically thought-provoking piece which upton-on-line reproduces with his kind permission:

By last Tuesday afternoon I suspected that much. By Thursday evening -- after I saw a distraught black woman pleading into a TV camera: 'Help us, they are raping children out there!' and after I watched other cameras repeatedly scanning that massive crowd of helpless people that waited for days to be given, or even just told, anything to ease their pain --- I was sure.

I knew that Ayman al-Zawahiri must be immensely pleased as he watches these scenes (his English is good, but no English is needed to interpret that unraveling) on his Pakistani (maybe Iranian) TV. This predictable -- almost totally avoidable and hence overwhelmingly self-inflicted -- disaster will cost the US more than did the attack on the World Trade Center that he helped to mastermind. But the money cost may be a lesser part of it. More importantly, Katrina's aftermath proved in a most graphic fashion that the only remaining superpower is increasingly helpless to respond to any threats in any coherent way. And perhaps the deepest message of Katrina's aftermath is how it exposed the frightening fragility of urban America and the increasingly Third-World nature of much of its urban environment and population: the world's only remaining superpower is rotting from the inside.

Let me explain, just briefly. Predictability of Katrinas must be clear to any school child: they are a matter of recurrent when and not if, and any rational, risk-minimizing society (let alone the world's richest one) should be taking constant systematic steps to minimize their impact. Hoping that a hurricane path will miss you, building levees to meet no more than the hurricane category 3 threats and permitting unlimited construction along the entire Gulf of Mexico coast are all state- and federally-sanctioned acts that are just asking for disasters to happen, a form of high-level gambling. Most gamblers, of course, lose.

Perfect defenses are impossible, near-perfect ones are exceedingly costly. A rational society with limited wealth to spare on any particular challenge would favor passive prevention and limited push-back. An easiest step to take, it would not allow any new permanent construction along any shoreline that could be swept by a massive storm surge. That is, after all, a matter of kindergarten physics: a cubic meter of water weighs 1000 kg, a cubic meter of air weighs 1.2 kg, a thousand fold difference; and the vertical impact power on structures goes up with the cube of speed on top of that. Under such a regime, all old structures would be gradually wiped out by hurricanes, and new structures -- built beyond the storm surge reach (this may be, depending on the terrain, just 50 m or 2 km inland) to high wind-resistance standards -- would be able to survive all but the strongest conceivable cyclones. Fortunately, America, unlike Bangladesh, has plenty of land to leave the land that belongs (recurrently but most violently) to the sea to the sea. Those libertarians who might object to an outright building ban (but we zone everywhere as it is, so why not?) might like the idea of having the incorrigible beach-builders paying the real price for their insurance, not one subsidized by millions of people in safer locations. Few would find that affordable.

A rational decision-maker inheriting a city sunken below the sea level faces a tougher challenge than gradually reducing and eventually eliminating the sprawl along a coast, but the same strategy applies. Discourage the city's further growth, build a second, less formidable, line of defenses behind the existing (reinforced) dykes (that is what the Dutch have been doing recently, setting aside areas that will be deliberately flooded, not defending every bit of land) and manage its decline. After all, regardless of what you do, the current rate of deltaic erosion will turn the city into an utterly indefensible island in a matter of five to six generations.

But the safest of all bets is to conclude that the sanctimoniously defiant "we shall rebuild" cry will, yet again, prevail and that billions will be spent to set up more infrastructure for future destruction. There is no will, at any governing level, to behave rationally. But this multibillion dollar waste is in the future. What we see already is the multibillion dollar waste called the Department of Homeland Security whose mega-machinery of dozens of agencies has been shown to base their decision on information that was vastly inferior to broadcasts freely available on radio and TV to the rest of the world.

Much has been said about the immensely catastrophic nature of Katrina. Yes, of course, in terms of the area affected and the misery it brought to hundreds of thousands of people -- but, no, if we are thinking about what the DHS should be thinking, countless worse and worst scenarios. How about having hundreds of thousands of dead bodies, as was the case with the Sumatran tsunami, in a radioactive environment, not just (fortunately) a limited number of casualties in shallow dirty water? If Zawahiri thinks as a cost-benefit maximizer, Katrina taught him a crucial lesson: why bother with any such arcane (and costly and unpredictable) stuff as dirty bombs when an equivalent of a couple feet of dirty water will do.

The one lesson that would be easiest to act on is to remember that large segments of all major US cities are inhabited by populations whose standard of living is more African than American. In any massive catastrophe, all young, sick, helpless and decent people of this population will became instant victims, while the predatory, violent segment of this population will take control of the chaotic place. Everybody found something incredible about Katrina's aftermath; few details can compete with the fact that, as a CNN reporter repeated breathlessly, a group of policemen (those who did not desert!) in a major US city was, four days after a hurricane, banding together to defend -- their own police station!!! Is this a glimpse of America's future? Are similar scenes, on a much larger scale, amidst much more impassable chaos and thousands of dead bodies possible? If Katrina will teach at least one limited lesson it should be this: do not let Los Angeles or San Francisco, after a 9.0 magnitude quake, pass into the hands of gangs. But I am afraid that is exactly what is coming, especially when you take into account the number of gang members in California.

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