Democracy, Decay and Constitutions
Sir Geoffrey Palmer QC
Speech to the Wellington Rotary Club
Monday 10 May 2021
James Cook Hotel 1 pm
147 The Terrace.
New Zealand is one of the world’s oldest democracies. We have enjoyed responsible parliamentary government since 1857 and full adult suffrage since 1893.
There are many varieties of democracy on offer around the planet, some more democratic than others.
What are the main features of the modern New Zealand democracy?
The principal decision-makers, Ministers of the Crown, are accountable to the people through fair and free elections.
These are held every three years.
Voting for the Members of Parliament is the most salient indication of democracy.
Every person’s vote is worth the same as every other person. And in New Zealand, since the introduction of MMP, each registered voter gets two votes.
Gerrymandering is impossible in New Zealand, since the boundaries are set by an independent Representation Commission that is not controlled by MPs or the Government.
Elections are regulated to ensure they are fair and the amount of money that can be spent is limited by law. This is an issue that requires current attention and change.
Political parties compete at election time and they offer different policy programs, and they believe in different ideologies.
People are free to criticise the government, there is no law against sedition, as in many countries.
The law is applied and interpreted by the courts and the Judges and not by the Executive Government.
The rule of law is an important safeguard against oppression and unlawful activity by government.
Public finances are closely regulated by law and public money cannot be spent unless appropriated by Parliament.
The government ministers are Members of Parliament, and they are accountable to the Parliament by way of questions, debate, select committee inquiries, votes of confidence and other parliamentary mechanisms.
We must take some satisfaction with the New Zealand system of government.
The nation has succeeded so far in over-coming a serious challenge in the form of Covid-19.
The blessings of liberal democracy mean that we do not live in a “state of nature.” This was much feared by the political philosopher Thomas Hobbes, writing at the time of the English civil war.
He feared life in a state of nature would be “solitary, poor, nasty, brutish, and short.”
We have in New Zealand something approaching what was originally promised by the British colonial authorities who devised the New Zealand Constitution Act 1852 that promised “peace, order and good government.”
So why am I giving this speech?
Things can change.
Democracy is a fragile form of government and can easily be blown of course by a number of factors, many of which have been seen in recent times in countries that we sometimes study for guidance.
The political ghost of President Trump hovers over the United States still.
According to the “Washington Post” more Americans voted in the 2020 election than in any other election in the past 120 years.
Yet the total turnout was only two-thirds of the eligible voters.
Trump received more popular votes than in 2016. He polled more than 74 million votes. Biden beat him by seven million votes.
In political terms Trumpery is not dead.
Things in the other main Anglo-sphere democracy the United Kingdom are not great either.
Brexit and Covid-19 and have created serious problems for the United Kingdom. Its future survival is not assured, given the political situations in both Northern Ireland and Scotland.
What are the challenges to democracy that we have seen in recent years?
A recent and rigorous 2020 report produced by the Centre for the Future of Democracy at the University of Cambridge concluded: “We found that dissatisfaction with democracy has risen over time, and is reaching an all-time global high, in particular in developed democracies. Across the globe democracy is in a state of malaise. Dissatisfaction has risen sharply since 2005.”
The report states there exists an especially acute crisis of democratic faith in the Anglo-Saxon democracies, where dissatisfaction has doubled.
New Zealand, however, has avoided the “trajectory of soaring public discontent.” The report says this may be because it is the only country in the group to have adopted a proportional representation electoral system.
A report by human rights NGO Freedom House, Nations in Transit 2020-Dropping the Democratic Façade and its most recent annual report, found that the decline of democracy was alarming, with more countries moving toward authoritarian rule.
Recently the organisation has said three quarters of people who live on earth live in countries where freedom is declining. The decline has been going on for 15 years at least.
This means the constitutional rot and decay of democracy are well established world-wide and expanding.
What are the factors that have produced this global crisis for democracy, not long ago thought to be the final and inevitable form of government.
Here are ten likely factors:
- Repeated lying and misrepresentation of the facts by people in authority
- Populist appeals to prejudice and ignorance by demagogic efforts to stir up passion and division, including the articulation of false conspiracy theories.
- The sense that democracy has not provided what people want and authoritarian leaders are more likely to do so
- Appeals to racial prejudice and white supremacy
- Serious failures in public policy, neglecting to address important policy issues and chaotic decision-making processes
- Big gaps between the most well off and the least well of in a society, fracturing the sense of community and common purpose
- An absence of transparency
- Cronyism and corruption
- Encouraging despotism and anarchy
- Efforts to suppress the vote in elections by making it hard for people to vote.
Another, the digital revolution, could be the most potent of all. The new social media have changed the way in which politics is conducted, they have changed the nature of political parties, and they have changed the methods of political communication.
They have weakened the traditional media and threatened their business models. On the other hand, it can be seen that media systems have been opened up to a wider range of people .
A revolution has been wrought by the digital media. It is not going too far to suggest that these developments pose for governments more difficult challenges than did the invention of the printing press centuries ago.
Social media provide the opportunity to express extreme views and conspiracy theories with no accountability for the consequences. The gatekeepers have gone. People become locked into their preferred communication bubbles and hear nothing else.
New Zealand learned of these dangers during the terrorist attack by a lone gunman in Christchurch on March 15, 2019. The attack killed 51 Muslim people worshiping in mosques at Christchurch and injured many more.
This led to the Christchurch Call in which Prime Minister Jacinda Ardern combined with other foreign leaders to encourage the social media platforms to remove the images uploaded to Facebook by the terrorist depicting the carnage he had wrought. The tragedy has been carefully analysed by a Royal Commission whose report was released on 8 December 2020.
Other features of the digital revolution unfolded in the saga of the Cambridge Analytical/Facebook data breach and the scandal that ensued with its use in the Brexit referendum in the United Kingdom.
The situations I have set out poses challenges for constitutions.
New Zealand has a constitution, but you cannot easily find it because it is not written down in one place.
We have a political constitution always in a condition of constant evolution.
For some years I have been advancing with Andrew Butler the case for New Zealand to adopt a written constitution.
While a written constitution cannot prevent decay, it can delay it and help prevent the rot setting in.
The United Kingdom, New Zealand and Israel are the only countries on earth without a written constitution.
Two official studies that have been carried out into New Zealand’s constitutional arrangements in recent years, one in 2005 and another published in 2013. They produced no change. But both concluded New Zealanders did not know much about how their system of government works. This should be urgently remedied by changes in the education of civics.
The most significant constitutional measure in front at the Parliament at present is the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill 2020.
We have the New Zealand Bill of Rights Act since 1990. The new measure quite minor one, concerns the capacity of the senior courts to make declarations of inconsistency when a law is challenged that breaches the Bill of Rights.
MPs have nothing to be afraid of.
The courts are trusted by the public.
In a country with only one rather small House of Parliament, where the MPs within the executive branch of government number 28, there is a case for more checks and balances upon executive action.
The Bill of Rights is part of the law of New Zealand.
Surely the courts should be allowed to interpret it.
I believe the courts are the least dangerous of the three branches of government.
In these times of global challenges to democracy we should be shoring up our commitment to democracy and international human rights.
Document can be downloaded here