In March 2011, the New Zealand Listener magazine featured an article on New Zealand wool scientist, Fenella France. Dr France had been recruited to by the National Museum of American History to work on the preservation of the Star Spangled Banner, a 9 metre x 10 metre 200-year old woollen flag. The Banner is an American cultural treasure which was flown at Baltimore’s Fort McHenry during the British-American War of 1812 to 1815. It is the subject of the United States national anthem which was penned by Francis Scott Key after he saw the flag still flying following a bombardment of the Fort by the British.
Dr France was subsequently asked to look at early drafts of the United States constitution which had been penned by the third President, Thomas Jefferson. One draft had handwritten deletions and corrections but underneath the word ‘citizens’ was a smudge. On closer investigation using spectral imaging technology, Dr France discovered that the word ‘subjects’ had been erased and over-written by the word ‘citizens’, most likely by Jefferson. For the Americans this was a huge historical revelation as it is seen to have marked the point at which Americans began to see themselves as citizens of a sovereign nation and not subjects of a colonial monarchy.
New Zealanders have not had such an ‘aha’ moment and perhaps we never will.
Moreover, our relationship as New Zealanders to the State and to the idea of our nationhood is not well defined. This is in part because we do not have a Constitution and, in part, perhaps because we have not yet seen the need for one. This sense of necessity has been pricked somewhat by the efforts of people such as Sir Geoffrey Palmer and others who raised the prospect of New Zealand having a written constitution. Despite such efforts, the Constitutional Advisory Panel – Te Ranga Kaupapa Ture found, after extensive consultation with New Zealanders, that while ‘there is no broad support for a supreme constitution, there is considerable support for entrenching elements of the constitution.’
This as a conclusion is a little vague and contradictory and perhaps illustrates New Zealanders’ ambivalence toward a serious discussion around our nationhood and the status of our various rights. On one hand we don’t want a formal written constitution and on the other we are happy with the current elements of our unwritten constitution. The Advisory Panel concluded:
Reasons for supporting the current unwritten constitution included:
• it is working well, resulting in stable and effective government,
• the current flexibility and ability to adapt to changing circumstances has allowed the country to develop pragmatic solutions to issues as they arise,
• the values of government can stay in line with changing social values.
Although I support such a perspective there is a certain trustworthiness as well as a complacency in this. Our citizenship as New Zealanders / Aotearoans is not really defined in terms of statutes although most of the rights we can expect as citizens are. In this sense we have an unwritten constitution which relies on political convention and, behind this, an enduring social cohesion. These have been underpinned by our political culture and history where governments obey the rule of law and where the various checks and balances around the abuse of powers are respected.
However, in a recent book on constitutional change, former Prime Minister Sir Geoffrey Palmer, and Wellington lawyer, Andrew Butler, claim that the ‘New Zealand style of government. is already authoritarian. In our experience, most New Zealanders are somewhat naïve and complacent in their attitudes to public power’.
They continue. ‘(M)any of the legal powers in New Zealand are the powers of the Queen, although most of them are not substantially exercises by her, or the Governor-General. The whole system is underscored by a series of unwritten constitutional conventions about how power will be exercised so that it can be democratic, recognising that in their origins the powers are anything but democratic…. Essentially the Crown is a mask the Government puts on to disguise itself when it wants. It functions as a barrier to explaining to people how our democracy works and what the limits on power are.’
Palmer and Butler claim that ‘New Zealand needs to refurbish its own democracy and be vigilant to protect its values’ and that to do so, ‘(W)e need a written constitution…which sets out how the major institutions of government are structured, what their powers are, to whom thy are accountable and how peoples’ rights are protected’.
Is it the case that in order to refurbish or renew our democracy we need a written constitution? The answer to this question in part relies on how we see democracy working and, from this, what we see our citizenship being and becoming.
Palmer and Butler’s view of the world defines democracy in constitutional terms and such a perspective can be seen as problematic for several reasons. The first is that this version of democracy relies on the state defining our rights as citizens and, in doing so, codifies them. Secondly, this codification may tend to limit the extension of these rights and lead them to be interpreted in legal terms by courts rather than social convention or custom. We will return to these limitations later in this paper. A third problem is that these rights are to some extent intended and expected to protect citizens from the State. Such an idea is a long way from the citizenship envisaged in contractarian theories where the State is both an idea and institution which represents our collective interests and the collection of our rights and obligations.
But there are alternative perspectives of democracy to that of constituted citizenship which deserve closer consideration before we simply accept the arguments of constitutional lawyers that a written constitution is the answer to our fragile democracy and poorly-defined citizenship.
Democracy and citizenship are of course not the same concepts although within liberal democracies such as ours we may, somewhat superficially, see them as such. This superficiality might be seen to work in two ways at least. It is easy to see how we can anticipate or conclude that our democracy defines our citizenship and that, perhaps somewhat separately, our citizenship defines our democracy without ever thinking about how or why this should be so. For example, because we are citizens, we have the right (and, perhaps, duty) to vote. Separately our right to vote is automatic to being a citizen. But where did this right to vote come from? From our citizenship or from our democracy, however these are defined?
The connection between voting and citizenship might seem axiomatic but how is it that children don’t get a vote? How was it too that in 2010 the Government passed an amendment to the Electoral Act which prohibits prisoners from voting in elections? Consider also that in 2018 the Supreme Court held that this prohibition was inconsistent with the New Zealand Bill of Rights. Consider too that the present Government has made no move to remove this inconsistency and that the Supreme Court has no power to change anything.
The cases of children’s and prisoners’ voting rights raise the second part of this superficial analysis of our citizenship. While it might be the case that an eight-year old child does not have the agency to exercise an informed vote, does this mean then that her or his rights as a citizen as somehow second rate? Our acceptance of persistently high levels of child poverty alongside our political willingness to support a universal superannuation programme suggests that this is the case.
The willingness of the previous Government to cancel prisoners’ voting right despite reservations of its own Attorney General points to a deeper mire. This mire not only illustrates the fragility of our constitutional arrangements but also points to the impermanence of our citizenship rights. Citizenship rights can be advanced or retracted with or without a written constitution. This impermanence goes to the heart of any debate around democracy and citizenship.
The word democracy is derived from two Greek words: demos meaning people or common people and kratos which means rule or strength. A number of complicating questions emerge immediately from this etymology as has been identified by Philip Pittit.
One complication is around what we mean by people. Are we referring to a people as a collective body, as in ‘we the people of New Zealand’? Or, are we referring to a plurality of people as in ‘we the peoples of New Zealand’? The difference is critical in part because of the political responses which follow from each of these interpretations.
The idea of a collective people, whether organised or loosely defined, will draw on claims about how such a collectively is represented both in terms of ideas or symbols and in terms of the distribution of political power. In particular, the idea of a collective people aligns easily with the argument for representative democracy: that is that we (as a collective people) need only elect or otherwise appoint a group of elites to decide things for us given, of course, that we already share a common set of interests and ideals. Furthermore, it is easy for the elites of representative democracy to call on ideas or symbols as being representative of our collectivity and so reinforcing their so-called representative roles. Appeals to national sports teams on historical events are examples of these.
The idea of a plurality of people begs an opposite set of problems around how we can find common ground on which to act. This problem is something of a paradox for liberal democracy in that liberal thought relies both on the importance of individual rights as well as the broad sharing of ideals, especially those around respect for the rule of law. So, in liberal democracies we can all be individuals just as long as we all—more or less—agree to the same basic ideas.
John Rawls offers something of a solution to this paradox in his book Political Liberalism. He is interested in how the liberal democratic state gains legitimacy where this legitimacy is not necessarily one around ideas but around process. Rawls advances the idea of an overlapping consensus where citizens might have a variety of perspectives on a certain issue, such as marriage equality, but share what he calls a set of ‘reasonable comprehensive doctrines.’ This overlap means that they all firstly accept the liberal justification for a particular law change and secondly that they agree to a shared duty of civility, as in showing others courtesy and perhaps some respect. For example, the idea of marriage equality for homosexuals offends some peoples’ sacred texts but their belief too in, say, tolerance or reciprocating freedoms means that they are prepared to accept that their sacred texts are not universals and that others have different views which do not cause them harm. The legitimacy of liberal democracy to some extent rests on this overlapping consensus.
But what if some people reject an overlapping consensus outright or have somehow been excluded from it? What then is the nature of their citizenship?
The other dimension of democracy is about power and how a society is ruled or governed. In the purest sense, the idea here is that ‘the people’ (however this entity is defined) exercise power collectively. The original idea in the ancient Greek versions of democracy was that citizens not only had a right but an obligation to participate in collective decision-making. This right / obligation manifests around the idea of the politeia which might be translated into English as the polity or commonwealth. The politeia had two dimensions which citizens were expected to participate in on an as-required basis. The first was that of political leadership of the governing body and here office holders were rotated on an agreed basis in part to avoid the concentration or monopolisation of power. The other dimension was the ‘organisation of administrative and governmental duties (or “offices”) into a system of legal institutions’; In other words, the administrative arm of the state or the bureaucracy. Here too citizens were expected to serve although separately from those with political power.
This form of democracy appears to have worked acceptably well at the level of the city state and as long as citizenship excluded women and slaves. It became more problematic as an idea as the scale of the operation increased and, with this, as the notion of citizenship became more complex.
One of these complexities was that citizenship became associated with belonging or being part of a community. This idea eventually necessitated the matching idea that some people were not part of this political community and so were not citizens. This was especially the case as citizenship brought with it not just rights and duties but also privileges. Such privileges date back to ancient Roman with forms of poverty relief to the poor as a means of subduing social unrest but extended eventually into ideas of social citizenship and the welfare state which we enjoy today.
The need for a bureaucracy as well as the scale and complexity of political decision-making led inevitably to the invention and imposition of so-called representative democracy. Representative democracy was seen as a godsend by its early advocates such as James Mill and Thomas Paine who proclaimed it as ‘the grand discovery of modern times’ and ‘the solution of all difficulties’. In the context of defeating the tyranny of monarchies and the doctrine of the divine right of kings, the idea of parliamentary democracies based on a limited franchise of wealthy men must have seemed infinitely better.
In this limited view of democracy and rights, governance became equated with government and the right of representatives to rule became deeply engrained in our expectations. New Zealand historian Michael Belgrave makes this point in his discussion of early Pakeha government in New Zealand, suggesting that, in the 1850s, at the time New Zealand’s constitutional framework was established, both Maori and British societies were hierarchical but that the ruling gentry of British society—and to some extent the rangatira of Maori society—‘saw themselves inheritors of the common good’. This was a wonderful confluence of benevolence and self-interest which may not have had the air of ‘born to rule’ but certainly had a whiff of ‘entitled to rule’. To what extent does this attitude still prevail amongst the political, administrative and judicial arms of New Zealand’s government today?
The idea of constitutions grew out of representative democracy as a means of safeguarding citizens from the excesses of the state and perhaps too of defining the basis of the community which citizenship represents. But these rights have been handed down. As Cicero lamented ‘each commonwealth corresponds to the nature and will of him who governs it…. for they give their suffrages, they elect officers, they are canvassed and solicited for magistracies: but yet they only grant those things which they are obliged to grant’.
Emily Beausoleil observes that ‘the West came to downplay popular engagement and direct influence and instead (such as in elitist and realist theories of democracy) equated democracy with the presence of competitive elections. Participation equated—was reduced –to voting alone…. Over time, politics came to be understood as an exceptional activity that rarely involves everyday citizens. This minimal definition of democracy limits participation beyond the vote to either being passive respondents to opinion polls, or following political events and issues as observers’.
Étienne Balibar suggests that there is nothing new about this and that some of these ‘symptoms are as old as its constitution [of parliamentary democracies]—particularly the corruption of the “peoples representatives” who wind up becoming intermediaries between their constituents, economic interest groups, administrators and state power-holders’.
It is small wonder then that there is talk about a crisis of democracy or, perhaps more precisely, representative democracy. This crisis might be seen to have a least two dimensions. The first and most obvious is around engagement and participation. Fewer and fewer people are enrolling as voters and/or voting or belonging to political parties. Appendix 1 illustrates this with falling voter participation in New Zealand’s parliamentary elections. An Electoral Commission 2017 survey of New Zealanders’ attitude to Parliament found that just 39% of respondents had much trust in Parliament and only 29% felt that they had much influence over it. For Maori, 44% had no trust in Parliament compared with 29% of the population overall.
But the second and perhaps larger crisis is that we have allowed this happen to us through our indifference. This indifference may in part be due to the way in which liberalism divided politics into the political or public sphere and the private sphere. With this division it became easy for us to defer political questions to professional politicians in distant forms of representative democracy and to indulge in what Benjamin Constant has called the ‘private pleasures of modern liberty’, that is, materialism and privacy.
This crisis of indifference may not solely be due to our greater interest in private pleasures than civic duties but may have also been nurtured by what Wendy Brown identifies as the de-democratisation of neoliberalism. This attack on democracy has been both institutional and ideological. At an institutional level, it has dismantled some parts of the State which delivered some of the goods associated with social citizenship and has supported the extension of the market into more aspects of private life. At an ideological level it has emphasised not only individual rights and responsibilities but individual agency. This agency is expressed as the entrepreneurial individual who is in effect a business unit responsible for functioning successfully in the market as the seller of skills and the trader of opportunities. Questions of the common good, collective responsibilities and social solidarity are lost in this new moral framework. We have few rights outside of the right to be successful in the market. This framing ties in well with Foucault’s idea of governmentality which is about the way governments are able to produce citizens who best suit the purposes of government. Balibar suggests that this happens in part in the imposition of certain disciplines and ‘through the dissemination of models of ethical and therefore cultural, behavior.’
Perhaps liberal democracy has a lot to answer for in its complacency around conflict. Chantal Mouffe has observed that there is a ‘paradoxical nature to modern democracy’, with a ‘fundamental tension between the logic of democracy and the logic of liberalism’. This tension revolves around liberalism’s focus on individual freedoms and rights on one hand and on the need for the rule of law on the other. It is really only possible to have stable government where the rule of law is habitually respected if individual rights and freedoms also remain stable: that is, only if Rawl’s overlapping consensus remains static.
The problem here is in part due to liberals’ love of pluralism and diversity. In particular, there is the difficulty you would have in subduing a diverse range of values and aspirations and still maintain the primacy of individual rights and freedoms. Given this, you can expect there to be an active debate around the extent of individual and collective rights and how these are reflected in law and political practice.
Constitutions and forms of representative democracy may tend to subdue extensions to citizenship rights. This is in part because while constitutions have a certain gravitas, they are somewhat clumsy and designed to be slow moving in order to prevent frequent changes which might just be based on recent political thinking. Representative democracy can have a tendency to popularism and will normally be majoritarian, so less mindful of minority interests and concerns.
The answer to such limitations lies in conflict and to accepting that ‘the essence of democracy is the maximization of the capacity of its citizens for political action’.
Seeing democracy as essentially conflictual means that our citizenship rights are not static but dynamic and even malleable. They are dynamic in that our rights, or those of some of our fellow citizens, can be expanded on momentous occasions following sustained periods of activism. The recent enactment of marriage equality for homosexual people is such an example. But they may be malleable in that they can be diminished subtly through the public discourse so that once-agreed ideas are no longer seen as important. Attitudes to male sexist behaviour and language is an example of this. A further example is that of moral panics such as that conducted against state housing tenants who were alleged to have been contaminating state houses with their use and manufacture of methamphetamine. Moral panics are often a cynical form of moral regulation practiced by those with power against the powerless and marginalised.
The recent emergence of the struggle at Ihumatao on to the national stage provides a very useful contemporary example of the conflictual nature of liberal democracy and of how citizenship might be re-defined by this conflict. Conflict here is woven through the whole history of the Ihumaatao people’s struggle and offers a neat and ironic lesson of how the State attempts to de-legitimise conflict as a means of control and asserting its sovereignty.
This conflict dates back to 1860s where the indigenous people living around the Mangere area in south Auckland were given an ultimatum by the Colonial Government to pledge allegiance to the Crown or move into exile in the Waikato. At dispute was the growing influence of Kingitanga and Maori attempts to construct a political structure separate from that of the Crown and the Colonial Government. Those involved were held to be in rebellion in a classic attempt by the Crown to de-legitimise dissent. Most of the Mangere people sided with their kin in the Waikato, refused to pledge allegiance and left their lands with the few possessions they could move. The Waikato invasion by the Colonial Government backed by the British Army followed. When the surviving Mangere people returned to their lands 20 or so years later they found that these had been confiscated and sold or given to Pākehā farming families.
At dispute now is a remnant piece of land at Ihumaatao which is a historical site of occupation and which has cultural and spiritual significance to the local hapu and iwi. This land is earmarked for housing development as a consequence of re-zoning which, itself, was based on special legislation which limited due legal process.
The disputed land has been occupied by a small group of protestors since 2017 and in July 2019 the land owners sought intervention by the Police to have these people evicted from the land. Immediately following these evictions, a mass protest of people opposing the development took place. This in turn lead to a heavy Police presence to protect the landowner’s interests and the intervention by the Prime Minister in an attempt to broker a solution.
In effect the issue has become ungovernable. The scale of the protests against the development and the surrounding social media has popularised the issue and made it very difficult for the land owners to develop the land without continuing police protection. Such protection not only risks violence but also threatens the legitimacy of the Government in its further use of force to secure private property rights against historical injustices and a widely-held sense of public good. This stand-off also threatens the legitimacy of the Crown as the defender of private property rights, a role which it has willingly taken for the past 160 years.
The de-legitimising of dissent both in the original evictions and confiscations and in the recent evictions now risk de-legitimising the government at least in the eyes of many Maori people and wide groups of non-Maori people as well. Social media in its representation and popularisation of the dispute has played a significant role in this
But where is our citizenship in all of this?
In many respects this dispute and conflict can be seen as an example of citizenship rights being extended. For the past forty years or so, since the Maori land march of 1981 and the passage of the first Treaty of Waitangi Act in 1984 the special and additional rights of the indigenous people have been the subject of ongoing and often bitter rancorous debate. Conservative opinion holds that special and additional rights for Maori on the basis both of the Treaty and perhaps their prior claim to much of resources of New Zealand is racist and divisive and that we are all one people under a common law and set of rights.
Perhaps for the first time at Ihumaatao the idea of special and additional rights for the indigenous people have toppled the private property rights associated with land ownership, development rights and corporate power. This will have been achieved because of widespread popular support and the ‘ungovernability’ of the status quo.
The creation in the 1930s of social citizenship and various versions of the welfare state can be interpreted in two ways. Social democrats and, perhaps, socialists would have us believe that this major break with laissez faire capital was a triumph of working class struggles which can perhaps be traced back as far as Oliver Cromwell’s Levellers in the 1640s, The Chartists of the 1840s and the Syndicalists of the early 20th Century. An alternative interpretation is that the success of Bolshevism in the Russian Revolution and the spread of radicalism and communism post World War I threatened the survival of capitalism. This caused the political elites and their national governments to make concessions to the working class in exchange for political legitimacy and social stability. Both explanations have some weight but an important feature here is that the nation state was the unit of organisation. Political and economic organisation was undertaken at the level of the nation state and national citizenship had significant dominance as an organising idea for society. It was therefore relatively easy to gain a broad consensus of the changes required in terms of the balance of rights between competing interests within any particular national society. This consensus allowed the liberal capitalist nation state to survive a further century or so and the idea of citizenship was central to this.
Such potential for consensus is missing from our current ecological crisis, especially that of climate change. Eckersley suggests that this absence might be seen to be due to three systemic factors.
The anarchic character of the system of sovereign states where countries engage in selfish and rivalrous behaviours creating the all-to-familiar tragedy of the commons.
Eckersley argues for a shift from a liberal democracy to ecological democracy suggesting that we
‘begin with a very simple, but ultimately politically challenging, ambit claim for ecological democracy based on a familiar principle: all those potentially affected by a risk should have some meaningful opportunity to participate or otherwise be represented in the making of the policies or decisions that generate the risk. This formulation is centrally informed by the moral argument that persons and communities should not be subjected to avoidable risk without their free and informed prior consent’.
It should be clear by now that current ideas around nation states and national citizenship are insufficient to meet the global challenges we are facing around climate change, resource depletion and inequality. Meeting these challenges requires us to act individually and collectively. Individually we have a duty to become critical and active citizens who are engaged in civil society and informed about our politics and society. Such activism should hopefully cause us to abandon ideas of national citizenship in exchange for those of global citizenship. This global citizenship needs to not just ignore the increasing arbitrary idea of national borders but to understand that citizenship extends from the past and into the future and involves a central responsibility of stewardship.