YOUR [LATE] CONSTITUTIONAL XMAS PRESENT: HOPE FOR CONSTITUTIONAL CHANGE IN 2023?

The universe that is our constitution

It is not surprising that much that is bad about our constitution and constitutional system is held in place by an ambiguous and evasive source of authority which is the sun to the 287 other particles in the universe that is our constitution. That 'sun' is the cabinet manual: a written document most recently compiled by a Pākehā academic which sets the rules for Cabinet, which is itself the sun to the other multiple machinations of law making in our political-legal system.

Few realise the cabinet manual is up for review every three years. As if our constitutional system could get any more bizarre (who agreed to it? when? why? how does it work? why are our rights curtailed or absent [see right to housing, right to be free from discrimination inter alia]), in the first meeting of Cabinet after the formation of a new government, reviewing and endorsing the cabinet manual is agenda item number one. As Cabinet is ruled by the PM, the PM, in that moment, has some extraordinary supra-constitutional powers. But what on earth does it really matter?

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As a Pākehā New Zealander New Zealand's history is naturally confronting, until I repeatedly accept that I am complicit in a raft of historic shames and harms, which I am in turn complicit in holding in place today, in my lifetime. For me our constitution offers a way of understanding that history, and our present, in a useful way that helps us to comprehend our capacity for change beyond self-limiting Government policy and election cycles, and indeed beyond the (racist) vitriol, (racist) violence and contestation which seems to be the life blood of our political environment.

On the word 'Pākehā' I note that I use it with high caution as it carries within it a white core of exclusivity. When that exclusivity is primed to reflect negatively on Pākehā culture in Aotearoa, this exclusivity appropriately attempts to name the people and heritages that brought western rule and law to Aotearoa and caused the fierce tranches of harm now often piled under the title of colonisation (though I have equal caution about using 'colonisation' as a catch all category of action which can appear to have no actor associated with it, and I try instead to name the acts and the actors in every case possible).

When Pākehā flip the script, however, and begin to frame and prime this descriptor as a positive source of culture, that core of white exclusivity becomes problematic, and what is in the negative frame a calling out of white supremacy, can become in the positive frame a claim to an exclusive and unique title in Aotearoa's history; as a 'primary partner' in te Tiriti or with Māori. An entrenched claim that we understand the history and won't do it again; an identity where only white people belong alongside Māori and therefore a claim of belonging; a way to reassert white supremacy.

When I use it I only use it to infer the former category - the frame in which the Pākehā identity is identified as the causal link in colonisation through the acts of colony making, the wilful myth-taken mal-construction of te Tiriti o Waitangi, the unjust launch of a new legal State for Pākehā purposes [inter alia, etcetera].

Against that backdrop, there is a thread of justice I think Pākehā might usefully explore to find new ways of being at home, here, or processing and accepting that sense of confrontation inherent in our history here. But it would involve reading and understanding our constitution - a task most of us simply avoid. Which in the context of understanding our nation and our place in it, seems extraordinary.

But to be clear, nothing here should be understood as a claim that our legal constitution is good, legitimate, fair, or nation-binding, let alone easy to find, to read, or to engage with. My view is quite the opposite. Te Tiriti is self-evidently the constitution of Aotearoa. It had constitutional moment, and has sustained constitutional gravitas endlessly and un-erringly.

What I like though, is that by understanding our legal and therefore western constitution, we can find meaningful ways to un-understand the binds of western law, to re-understand citizenship and our rights, to garner a fleeting sense of empowerment within the legal realm. Because as you read our constitution, instead of nation being built before your eyes, our nation instead crumbles into a solar system of singular legal and often racist acts.

Considering our constitution opens doors

Considering our constitution opens the door to interesting explorations. This is partly because constitutions are inherently historic - but more historic than just the history of Aotearoa and our legal system, partly because they are inherently present in the imaginations of communities and societies - and these explorations must be paired with an engagement of your constitutional imagination, and - while it might seem counter-intuitive - and partly because constitutions are not not inherently western (although ours undoubtedly, for the moment at least, really is).

Constitutions are the place where social ideals meet the very core sources and constructions of order and meaning among humans. In these regards, New Zealand's constitution fails miserably. This is primarily because our constitution is bereft of social life, and formed through the constitutional imaginations of only one part of our society: Pākehā purveyors of public law at the permeable border between our systems of law and of politics.

As such our constitution excludes the constitutional imaginations of most of our society, and excludes the imaginations of all parts of our society who are not guilty or implicated in historic colonial racisms. It is a colonial constitution which both elides over much conflict and historic malcontent, and fails to bind us in a common future dream.

Systemically, the Pākehā operating system has in fact deployed a range of tricks to retain our constitution in an exclusive and esoteric place where it is inaccessible and unapproachable. It is a dry and dusty legal text book of epic proportions, and one that is not written in full and cannot be purchased or found in a library. It is a plethora of sources that even government agencies will not define and at times differ over. It is racist [inter alia], and heartless and bland in its exclusion of Māori and its treatment of te Tiriti.

The only way to really confront all of this is to accept that our constitution is a failure, and that we need to support and enable a fundamental revision. But the failure of our constitution as it is does not mean that our sense of constitutionalism as a nation has failed, or that there is no chance to change direction, or that we are powerless.

We do need to engage in the revision and as is often the case, being open to learning is a good place to start.

The pre-history of a western and English legal constitutional system

Considering our constitution invites us to consider or reconsider the legal history of England leading up to and beyond the 19th century and the constitutional transitions it brought for this land and country. England is one of only a few other countries in the world with an unwritten constitution, and this is sometimes used to offer us comfort with our own arrangements. But England's legal history is deeply different to ours, and this parallel should give us cause for interrogation, honesty, and reflection, not comfort. But there is much to learn.

There is a basic set of questions that can lead us on this journey: why is te Tiriti not considered our constitution? When was it decided New Zealand would have an unwritten constitution? Why? Who decided New Zealand would have an unwritten constitution, and how was that decision reached? Who decided the Constitution Act 1852 wasn't our constitution? And of course, what do we need from our constitution?

Recent binding case law in New Zealand and Australia has opened the door to Indigenous law in each country being part of the common law and being able to be considered by judges and used in the formulation of judgements. It follows that Indigenous law arguments can now be more firmly referred to by counsel. But between an incentivised lawyer willing to try every trick in the book and Judges whose expertise does not extend to Indigenous law there are cracks in the western legal system's capacity to responds to this change with cultural humility, open hearts and minds, and most importantly, respect for those sources of law and their contemporary expression.

This was recently described by Australian Indigenous scholar Professor Megan Davis as opening the door to the question of where Indigenous law comes from and how that truly deep and cultural 'context' can really be understood much less decided upon by western courts.

Amongst a million other issues and questions, for non-Indigenous observers there is an invitation to us to learn more deeply about the history of English law as, and as expressing, common law - a form of law sourced through custom, community, discourse, testing, and justice, not just a constructed legal supremacy. It's not that this makes our current context more just, or that it changes the great injustices plied in Aotearoa by the colonist and the multiplicit decisions and actions of colonists in conjuring and deploying acts of colonisation. But there is history, justice, testing, and resolution in English legal history, not just the milestones and surveying pegs of colonisation. There is even honour and integrity, obscured in dark corners.

This is not an argument that western law, colonisation, or Pākehā hegemony have been good, or fair, or just, here. And it is even less a suggestion that Pākehā now take up another understanding of our law and legal power and ride some wave of justice. It is just a way to understand that within our law and the culture it underpins, justice can be unearthed.

Somewhere reaching deep into a discoverable history, English law is, in a way, similar to Indigenous law: connected to and derived from land, and sourced from core human interactions with the world around them, and from intrinsic and maybe universal social interactions, mono-a-mono and in between one and another. There was even a recognition from the law at some distant point, that different people in different places, did things differently, and different legal modes needed to be deployed.

But as a community Pākehā have largely turned our backs on it, invited as we have been into our own worlds of colonial unknowing (among that range of tricks deployed), and invited also into a imagining of re-taking a moral high ground, or at least just comforting ourselves, by recognising the injustice of a system which is inherently ours.

This is especially relevant as we have reached a time on our nation where the Crown's historic actions have been fully revealed as dishonourable, and the question is posed as to whether the Crown can transform itself in that regard and be judged differently in 2035, 2040, or 2100 - to be simply put, a Crown that acts with honour.

This is a truly compelling question. It sits or should sit at the heart of Pākehā identity in Aotearoa and offers a lens of challenge and transformation across the fields of constitutionality, our constitutional imaginations, law, public life, culture, histories collectively engaged with, a new earthing of the relationship with Māori, and a new standard in the Pākehā contribution to New Zealand's identity.

He Whakaputanga o te Rangatiratanga o Niu Tireni and te Tiriti o Waitangi as the heart of our constitution

Considering our constitutionalism invites us to consider He Whakaputanga o te Rangatiratanga o Niu Tireni and te Tiriti o Waitangi and their constitutional place.

For many of us, it's abundantly clear that these sources of law and direction setting are constitutional in nature and form the very foundation structure of our constitution. Western law and Parliament over the years have not shared this view. We need to deploy our constitutional imaginations to grapple with that racist hegemonic problem, which is nonetheless of our own Pākehā making, and held in place on a daily basis by Pākehā forces and by people working every day within our constitutional environments like the public sector, the police, agencies, and courts.

An honourable Crown

Reflecting on He Whakaputanga o te Rangatiratanga o Niu Tireni and te Tiriti o Waitangi also introduces another critical element of constitutionalism that we can only reach at this time through our constitutional imaginations because it is not evidenced in our day-to-day lives. It is vital to a constitution and its integrity and function that the authority it musters (in our case something we call 'The Crown') acts with honesty, is trustworthy, and acts with honour.

Doing so is in some ways defined by what the constitution requires of it - i.e. it might be argued that a 'Crown' act which is legal and constitutional but causes harm and is unjust, is nonetheless honourable because it is not illegal. But mostly these principles are self-explanatory in truth and it only needs to be noted that our law, too, is made by the same hands and therefore law is no more a marker of justice than it is the very tools of oppression.

Our constitutional arrangements exemplify this principle in many ways, two of which appeal as both simple and meaningful.

Firstly, within our constitutional arrangements and practices, Parliament is supreme in its power to make law (although cabinet rules the law making process). Many of our constitutional touchstones are simply law passed by Parliament, and as such they are inherently vulnerable to any interrogation which reveals their racism and protection of white privilege.

All Acts which refer to te Tiriti display this on their sleeve: the tidy careful legal wording about how te Tiriti will be 'dealt with' in the area of the law in question. There is even a well traversed sliding scale of implementation for the drafters to choose from.

The backdrop of this is the capture of te Tiriti through the Treaty of Waitangi Act which prescribes an approach to te Tiriti based wholeheartedly on both the te Reo and English text - a proposition Māori and many other generally find absurd and false, and which is contrary to international law principles. By Parliament's constitutional supremacy such concerns are rendered silent, but I would it is not so in our constitutional imaginations - where we can discuss whatever we choose.

Similarly, within the mechanisms designed to protect human rights in New Zealand we find weaknesses that reveal a constitutional failure to protect rights. These failures are born of and derive from Acts of Parliament overseen by Pākehā politicians of largely Pākehā political parties. Protections against racism are all but useless legally, and it is almost impossible to gain any remedy from any authority other than an apology in print. What's more, parties found 'guilty' generally proceed to publish their apologies in places hard to find, and in words that more often than not seem intended to simply taunt both the complainant and the process.

The human right to adequate housing offers one final example. The New Zealand Government signed an agreement in 1979 to respect, fulfil, and promote the human right to adequate housing. All Parliament needed to do was pass an Act declaring the right to housing among the positive and real rights of New Zealanders, and the housing crisis we have faced over the last 15 years simply would not have occurred. The Government stopped building or maintaining social housing in 1993, and from that time until 2019 (after 2 years of recreating a government housing system) the proportion of social housing per population and as part of our overall housing stock dropped consistently and fatally.

Social housing - like most rights - have been rendered political footballs and it must not be so. Some constitutional arm must require more honour. Social housing plays an important role in a great housing system. It houses struggling families and creates access to affordable housing for a wide range of New Zealanders. It creates a place to go when you are stuck, lost, homeless. In all cases the home should be of adequate quality, but just as importantly, it should be available to meet immediate incoming need.

Since 1979 the New Zealand Government has acted dishonourably in regard to housing, preferring party political housing policy to human rights policy at every turn, and turning a blind eye to the agreement it signed in 1979.

Our legal system, underpinned in every possible way by our constitution, allows this to happen. Both therefore fail us.

Unwinding dominant and subversive political and economic philosophies

The rights and human rights examples above are themselves part of a conflict which helps reveal and make problematic the nature of our constitution. That conflict arises between the rights of people and capitalism, and in more recent times between people on the one hand, and capitalism and neo-liberalism on the other.

Capitalism is the force and promotion of the growth of capital and finance and ultimately wealth. It is classically blind to the environment, and generically disinterested in the rights of people or communities which are often seen to resist it, or framed as resisting it illegally.

Neo-liberalism is the call for small government and big free markets in all its guises. Less regulation and freer markets are the nexis where neo-liberalism meets capitalism.

Regulation can be used to protect the rights of the State, the rights of the State as a proxy for the rights of people, and the rights of people independently of the State. This is a formative purpose of the use of power through democratic government. Regulation is obsessively decried by neo-liberal voices as contrary to free markets, and as adding costs to operating in markets. Regulation does not always do these things, and is certainly not always successful in doing them, and regulation does not always cost the State a great deal or require a lot of administration. For these reasons, a simplified neo-liberal voice simply becomes a voice for market ahead of people and rights.

Human rights and other rights require Government to regulate markets and to undertake other legal and regulatory activity to protect rights within environments and contexts which are ever more dominated by market forces. For example, on television, regulation is required to protect viewers from content considered inappropriate or marginal but which would otherwise be widely used in advertising and in TV shows.

On the other hand, New Zealanders expect free health care of a high quality. In that context to have alcohol and smoking so widely advertised on television that it is impossible to miss and equally impossible to believe it is not increasing the 'audience' for both vices, literally creates an ever-increasing direct cost burden on the State. To mitigate the negative impact of that cost, regulation operates to control advertising not because of a right to be free from such advertising but as an act of the State as a responsible entity using the tools at its disposal.

The conflict between rights, capitalism and neo-liberalism is in every paper, every day. Our constitution is capitalised and largely driven by neo-liberal values because both major parties share a broad acceptance of neo-liberal values. For this reason, the human right to adequate housing (for example) is highly unlikely to be utilised in the battle against our housing crisis. The capital gains tax which offers a tested tool to create a more equal and fair market while also creating a revenue stream for State housing initiatives, is always a dead duck because politicians hear the voice of market freedom and profit above all else.

Introducing values - in the form of rights, and constitutional rights - to the housing discussion is simply not valued and only market-based responses are really understood.

Is this the constitution we want?

For me the answer is a simple 'no'.

In my constitutional imagination there are a range of values based constitutional principles we could strive for:

• He Whakaputanga and Te Tiriti properly realised and upheld
• An honourable trustworthy Crown
• A constitution that resists neo-liberal or capitalist values being placed above and ahead of people, dignity, culture, society, human rights
• A constitution which breaks the power of political parties and political policy making over law making
• A constitution that lives and breathes a social contract between the State and citizens

YOUR CONSTITUTIONAL XMAS PRESENT: HOPE FOR CHANGE IN 2023

There's hope for change.

Here's an important place to start: the cabinet manual. To understand the cabinet manual and its role, imagine the user manual of you car. It contains all the operating specifications for your vehicle, as well as a few safety notes about driving it. It's detailed and specific, and there's not really anything it doesn't cover. It also sits around in your glove box and is rarely used or even seen. For the most part, the people using the car know the basics of how to make it work.

So that's a starting point for the cabinet manual. But we need to expand on it. Obviously the cabinet manual is more a set of rules and instructions, than just descriptions. It's a 'how to' manual, rather a 'what and where' manual.

Also, the car manual is for a car, and the cabinet manual is for cabinet. But if you want to keep the analogy that simple it's important to ensure we develop a reasonable understanding cabinet and its role within our constitution. In short, and you should investigate this yourself, cabinet is the crux of our political legal system, and the place where it meets our constitution. Cabinet represents the senior leadership of the Government and therefore the senior leadership of the party commanding a majority in Parliament. As such nothing happens in Parliament without cabinet approval, except really the random drawing of private members Bills which is beyond cabinet but over which cabinet will ultimately excerpt the greatest influence.

Cabinet is chaired by the Prime Minister and the basic understanding is that while cabinet will debate matters the Prime Minister will have influence and ultimately lead a decision the Prime Minister supports. A huge amount of operational government policy is decided in cabinet based on interpreting and giving direction to agencies about specific positions within the over-arching legal framework. It's not law making (that's in Parliament), it's law implementing.

Agencies within the scope of those decisions are not permitted to act outside those decisions. A vast constellation of cabinet papers shape and set in motion the operations of Government agencies and are therefore a useful reference point for those who find themselves asking 'here is the law, but how will it play out in real life?' (or as the case may be: 'a cabinet paper says 'A' so why is the agency doing 'B'?').

In this way, cabinet controls Parliament and the public sector, excerpts influence over the political party it is aligned with, and represents the hurdle a Minister must navigate if they are to transform a status quo into something else without going all in and seeking legislative change. It can be powerful, and transformational, but it is also tightly held, unresponsive, dominated by party positioning.

It is also secret: cabinet meetings are confidential and cabinet members are required to follow, abide by, and not undermine decisions of cabinet. As such it is also an easy out for Ministers under pressure: 'I really like what you are proposing, but I'm not sure whether I can get it through Cabinet.'

So in short the cabinet manual is recognised as a written part of our constitution. It is more broadly and deeply recognised as part of our constitution than te Tiriti. And in keeping with that, you might ask 'what does it say about te Tiriti?'. Unfortunately it is pretty ambivalent about te Tiriti, and I know that doesn't feel much like a Christmas present, but that's coming a little later.

In good western law tradition, it can't bring itself to call te Tiriti 'constitutional' and uses the word 'foundational' instead - foundational has lesser possible legal implications, according to the drafters. It also says stuff like te Tiriti 'may' have influence over the drafting or interpretation of law. It could could just say 'does' or 'has' but instead it stands as a further statement of ambivalence and caution by western legal minds.

But here's the Xmas present:

Western law and our constitutional arrangements are made up of fine points of simple words like 'may' versus 'does', or 'can' versus 'must', and even 'could' versus 'will'.

In 2023 the cabinet manual will be taken from the glove box, dusted off, and opened up for full thorough-going revision.

Given the description of cabinet above, it won't surprise you to hear that cabinet is the party to whom this opportunity for a thorough-going review of the cabinet manual will be afforded.

As such, sometime around October, the Prime Minister elected and appointed through our 2023 election will have the other-worldly, supra political and supra legal power, to single-handedly change our constitution.

The question is, what will that person do with that opportunity?

Historically, to date, this opportunity is disposed of as procedural - as you would expect within a western legal ethic satisfied with a maintenance of what order and good looks like from that position. But it doesn't have to be so.

The first point of business in fact for the new cabinet in 2023 will be a 'signing-off' on the cabinet manual as the set of rules they will collectively adhere to. While this is framed and maybe even understood as simply a procedural 'signing-off', the act of revision has transformational power. Like reviewing a friend's public law essay, a word here or a phrase there, and a pinpoint reference added can make all the difference (without compromising the integrity of the essay of course).

While by constitutional convention the cabinet manual is written by some western legal expert or experts, there is hardly any expertise required to change a word or two to properly and adequately reflect the constitutional meaning of te Tiriti, for example. And at any rate, within this constitutional milieu or miasma, where nothing is set in stone and rather writhes around in slowly drying mud, the power and moment of real change exists in forms and places unique to New Zealand and our context.

This is but one example, and a powerful one, and one that arises in 2023.

So as you tidy your desks, go to malls, and maybe even reconnect with the real world at some point, engage your constitutional imagination. Picture a Prime Minister taking office after the election, and opening up the cabinet manual for some after dinner reading. Imagine that human person really reading the cabinet manual in October 2023, thinking about the ways the cabinet manual depicts New Zealand as racist, historically dishonest, and in eternal cultural conflict, and how it places the Crown in a position of on-going dishonour in regard to te Tiriti and to Māori more broadly.

Consider the ways these small words enable big actions - like a Pakeha dominated Parliament continuing to lord over the law making process and choose for itself the ways in which Māori will be treated, their rights will be shaped and limited, and how references to and incorporations of te Tiriti will be crafted to define rather than to celebrate and expend its place in our legal order and at the heart of our western legal hegemony.

And then imagine that person recognising the simple power of those few simple words, and transforming our constitution from the inside out.

Merry Christle-mistles.