Archive for September, 2016

It’s beginning to look like the name of a Guns N’ Roses album.

The leaders of two opposition parties are being held without charges after participating in a forum critical of the country’s new 2013 constitution law. A trade unionist is also being held.

Sadly, Mr. Bainimarama’s government is not an unpopular one, (and for all I know he does good work on issues other than civil liberties and has done some genuinely good things post-coup, it’s somewhat difficult to get news on anything except the aborted attempt to change their flag. The expat Fijians I know all seem to think he’s done well) but still, it really needs to get its act together. Arresting the leader of the opposition is a serious thing, and while I absolutely do think that MPs are subject to the law like the rest of us, there should be no question of illegality for a peaceful gathering to discuss the constitution. That’s not a security concern in a democratic country, it’s people exercising their rights to freedom of assembly, which no longer exists in Fiji. Now, if there were evidence they were stockpiling arms or planning another military coup, that would be different, but I think it highly unlikely that’s the case, given that one of the opposition party leaders turned himself in.

Biman Prasad‘s house has been searched for documents and a laptop has been seized by police, presumably on the hunt for something appropriately “subversive” to charge him with so he can be arrested as a threat to governmental security. For his political opinions. This is exactly the sort of thing that “freedom of expression” is supposed to prevent, and without that right, Fiji really doesn’t have even the dregs of democracy it could lay claim to before, and its elections are a complete farce, as opposed to merely slanted in Frank Bainimarama’s favour.

Hi again to everyone, I’m not dead, I’ve been working on fiction writing and some other things ahead of political blogging.

I thought I’d step back into blogging, possibly very temporarily, to talk about a recent poll from Curia, noted push-poller and National Party satellite operation. The poll is commissioned by the liberal (and I carefully use the word “liberal,” because some of their members are prominent right-wingers) organisation New Zealand Republic Incorporated, who advocate for Parliament to appoint a New Zealand head of state. (as opposed to the Prime Minister appointing a Governor General) I may have mentioned in the past that I am an enthusiastic Republican, (in the sense of not wanting a Monarchy) but I should also mention I’m not actually involved with NZ Republic Inc in any way because I disagree with their approach.

Curia are not a particularly ethical or reliable polling operation in my opinion, but they do generally put an extra effort into their polls that don’t relate to National Party policies to make them fair, so it’s likely that any errors in this poll are genuine errors rather than biases.

The short version of the results: A plurality1 of New Zealanders support a specific option for becoming a republic for the first time ever, and a majority2 support some method of becoming a republic. That’s about 44% for directly electing a President, and 15% for Parliament appointing one through a vote in the House of Representatives. (that second method being the one NZ Republic favours)

This raises a few issues. The first is: is this a sustainable groundswell for republicanism? It’s a bit too early to tell, but at the risk of revealing myself to be living in a liberal bubble like Red Peak supporters did3, I think it actually could be. (especially with effective campaigns that represent multiple voices) The flag referendum was a fiasco, but I think it really did make some kiwis realise they aren’t as attached to the Monarchy as they thought, they just want a better process to be followed and to be presented with real options that they’re enthusiastic about before they go ahead. It also didn’t help that left-wing voices were largely left out of the debate, and it ended up essentially being between right-wing liberals and conservatives from both wings, with left-wing liberals generally opining that the whole thing was a waste of time. If right-wing liberals want to push for a Republic, they’re going to need left-wing liberals not just theoretically onside, but also with some degree of enthusiasm for change.

Secondly: What sort of republic do we want, and do we need some more complicated safeguards to get it?

Well, I think this poll makes it clear for the first time how New Zealand would like to move forward. They would like Presidential elections if we form a Republic. There’s an argument to be made that that’s because a lot of them don’t know the upsides of Parliament appointing someone, (and there are upsides, most of them being “they’re more likely to use their powers as reserve powers because it could create a constitutional crisis for an appointee to overrule elected representatives”) but I expect that’s not the case. I expect New Zealanders actually want more power for voters, not less. And that’s okay. There are ways to make a directly elected president work, and they would likely not be too expensive on top of current government costs. (Maybe $1.5-3 million extra a year because we’d need to allow for extra ballots and counting, some public funding for the candidates, and maybe some education about how to vote for President, if we chose a system other than FPP, which we should. By comparison, royal visits can cost the taxpayer up to $1million each, which I hope we would stop funding under a Republic, and in both systems we pay the cost of Government House and a salary to the Governor General/President, so we’ll call those a wash)

Nobody is talking, fortunately, about an American-style strong executive President, which would replace Cabinet in our government, and have powers like the ability to declare war, deploy police, and generally mess around with the operation of the civil service to an even larger degree than ministers do. That system has huge problems and it’s better we avoid them, and I think both Republicans and Monarchists are agreed on that fact.

What powers could we give an elected President, and what limits should we place on them? I think the powers could be very similar to the current powers of the governor general, but we could actually define situations in which we want them to be used. They could be obliged to attend ceremonial events, to sign bills into law, to determine who is appointed Prime Minister, when Parliament dissolves, and generally required to resolve constitutional crises, ideally by using one of the previous two powers. We could maybe throw them an extra power or two if needs are identified before this debate seriously becomes a thing.

What limits would we need to place on an elected president to ensure they didn’t act as a dictator? Well, firstly, I would submit that any candidate for President should not have been a member of a political party for the past five years at the time they apply to become a candidate. We don’t want an active politician in this role, and we don’t want it to be a retirement package for Prime Ministers, or a reward for party faithful. As someone who has been a member of a political party, I think this is absolutely fair. Some people will retire their memberships before running for President, and that’s well and good, as it should also to some extent cut their ties to their former parties by requiring them to quit more than a single term in advance, even if they still have political views aligned with a party. If we really wanted to enforce a seperation, we could also ban parties from endorsing presidential candidates or donating to them to campaign, but I think on the whole it’s better that we preserve freedom of speech there, as there are several ways to get around a ban, so it would just separate the pragmatists from the principled rather than prevent collusion.

Secondly, the President should be obliged to sign any bill into law that gains a 75% supermajority in the House of Representatives. This is to protect New Zealanders against a president dictating a veto despite broad political support for a bill. The President should, however, be able to exercise their own discretion on bills passed with a normal majority but less than 75% support. In practice, the governor general never exercises their reserve powers to refuse assent to bills, precisely because they’re not elected. It would have been excellent to have had an independent political voice to strike down say, that abomination against natural justice that is the Three Strikes Law, which stops judges from exercising their discretion to sentence people leniently where it’s appropriate, and outright contravenes BORA.

Thirdly, I would suggest that if an elected President dissolves Parliament, they also become a lame duck and are required to immediately (or within a very short timeframe) set a date for both a Parliamentary and Presidential election, and that Presidents may only be re-elected once. This means that Presidents that abuse their power to dissolve Parliament face an immediate referendum of the people on whether they should stay in office, and that first-term Presidents would also be potentially shortening their own term even if they do get re-elected.

Fourthly, I would consider whether the President, rather than the Prime Minister or an arbitrary legal cutoff, should have the ability to remove Ministerial responsibilities from MPs, and to eject MPs from Parliament. Right now, corrupt or scandalous ministers can only be removed by the Prime Minister. I would suggest that the President should also be able to remove Ministers in cases of corruption, unethical behaviour, or threat to democracy only, as this prevents situations like Judith Collins being a Minister because she’s too powerful in the National Party to keep her out of cabinet, despite her being provably corrupt. We should then generally expect a Prime Minister not to re-appoint ministers a President sacks, but leave the discretion with the PM to do so, and with the President to just sack them again if necessary. (It also gives the Prime Minister an incentive to quickly sack misbehaving ministers or to privately encourage their resignation, so that the PM is seen as more effective than the President in that regard, so over time Presidents should need to resort to that power less and less. It also has a nice side-effect of giving the President a legitimate reason to dissolve Parliament if the Prime Minister can’t find enough qualified and uncorrupted MPs to act as Ministers) I would also suggest that although we should keep the current threshold that allows MPs convicted to crimes with significant sentences to be automatically ejected, and that the President also be able to eject MPs from Parliament for similar reasons to removing their ministerial warrants, subject to an override by a supermajority of 75% of MPs to make sure this power isn’t abused. 75% supermajorities generally require a large amount of the opposition to cross the aisle, so the only vulnerability that would leave us with is that an opposition-aligned President decides to sack unpopular government MPs for reasons that aren’t really corruption, hampering the government’s ability to function. There could be additional safeguards placed here that allow the government to dissolve Parliament and necessitate a Presidential election if we need to prevent against that.

Fifthly, I would suggest we require all elections to be both Presidential and Parliamentary at the same time to reduce voter fatigue, and recommend setting a date towards the end of the year (perhaps a set day in September) as a fixed election date, and making that date a public holiday every year with a trading ban in place. (It could be called “Republic Day” 😉 ) A public holiday for elections is superior to the current law, as it removes the need of employees to ask for time off to vote if they work weekends, and it also gives us both the reminder and time off to think about our government and how it should work. (or just some well-deserved family time, which is equally as precious) If the President does not dissolve Parliament using their special powers, Parliament would automatically dissolve a set time before that date, (say, the second August after the last election, so that there is a disincentive to calling early elections) and the next election day would have both a Parliamentary and Presidential election. Early elections would be held under the provisions of the current law, ie. on a Saturday and employers must grant reasonable time off to vote.

The non-trading provision could also increase the number of locations that could function as polling places, as businesses could offer their premises too, allowing churches that prefer to hold Saturday services an option not to participate as a polling place without leaving communities stranded without a nearby polling place.

Those should be adequate safeguards to allow an elected President to both effectively use the current reserve powers if they need to, while still protecting New Zealand from an elected dictator vetoing everything the House passes and dissolving it if they don’t do the President’s will. (which seems to be nightmare that Monarchists warn a Republic would turn into)

There are other relevant issues as well. I’ll delve shallowly into some of the most important.

Firstly, Te Tiriti o Waitangi. (Yeah, that’s the Treaty for those of you with even less Māori than me) Now, any way that we reasonably would become a Republic should preserve the treaty. We are in fact obligated to preserve treaties that guarantee human rights under international law, so there would be a lot of pressure on New Zealand if we tried to ditch the Treaty as part of becoming a Republic. Our independence should make it relatively clear that it’s absolutely possible for what’s called a “successor state4” (in my example, the successor state is the current Realm of New Zealand) to take on the obligations of an existing treaty. But is it enough that the Treaty remain as it is?

I think any law making us into a republic needs to explicitly acknowledge the Treaty as a constitutional document, explicitly identify and protect its known principles, (some of which are defined, but like the Bill of Rights Act, some of which may not even have been identified yet, because it is living law) require participation in the Māori electoral roll to drop below 0.83% of the national population before any legislation can remove the Māori seats, (ie. make the Māori roll into a regular referendum on whether Māori wish to retain their separate seats) and guarantee Māori their traditional rights. These provisions need to be sovereign over Parliament, so that courts can if necessary strike down laws that attempt to cause new Treaty violations. This wouldn’t create any new powers or entitlements for Māori, but it would protect those rights that already exist. My understanding is that Māori as a whole are already more supportive than average of the idea of a Republic, so it’s only right that this process strengthen their rights.

Secondly, I think any law making us into a republic also needs to make the Bill of Rights Act (or BORA) sovereign over Parliament, and to outline any reasonable exceptions to BORA in law. Right now, Parliament effectively decides when it is reasonable to violate BORA, and just gets a report on where each piece of legislation is inconsistent, but can then vote away even if they’re trampling on our civil liberties by doing so. This would allow New Zealanders the option to go to the courts to obtain their rights if legislation, through either action or inaction, has become inconsistent with the Bill of Rights Act. If this had been an option, we would likely have had gay marriage a lot earlier, for instance, and it would be another safeguard against unconstitutional legislation like the Three Strikes law.

Thirdly, I think regular independent reviews of our electoral system and constitutional issues should be set up, with the power to refer issues to a binding referendum. We’ve seen from the MMP review that when changes are recommended that are inconvenient for the government, that they often aren’t passed into law. We need an option that skips Parliament to make changes in the future, so that they can’t slow things up and hope they get forgotten, or turn them into political footballs like happened with flag change. (actually the flag change is the best example yet, because it started out as a football for pop patriotism from the government, and its poor process turned it into a football for anti-government resentment for two of the opposition parties)

I intend to come back for at least a second post later on less important issues like why a republic, (that case has effectively already been made if a majority want one, but I will justify why they should later) should we codify the constitution5, how we should elect a President if we did have a public vote, what we should replace Queen’s birthday with (Matariki, oh wait now I don’t need to post that 😉 ) and anything else you or I can think of.