Monday, August 30, 2004


Why the silence? I'm currently in Auckland, and (mostly) AFK. Normal bloggage will resume Wednesdayish.

Saturday, August 28, 2004

A blow for justice

Chile's Supreme Court has stripped former dictator Augusto Pinochet of his immunity - allowing him to finally be put on trial for the torture, murders, and disappearances committed by his regime.

Friday, August 27, 2004

No wonder I feel so tired

In my first year of blogging, I wrote just short of 110,000 words. A quick glance at my blogger profile today shows that I've written that much again in the six months since. Is this what addiction feels like?

Iona has a few thoughts on the sanctity of marriage and Dail Jones' anti-intellectualism...

Dunne on freedom of speech

Peter Dunne stands up for freedom on speech in the Herald today, with explicit reference to David Irving. There's an obvious question of why it has taken him a month to speak up on this - a skim of Scoop's archive of United Future press releases shows nothing but tuneless whistling and foot shuffling on that front. But the real reason quickly becomes apparant: Dunne is trying to tar those who oppose fundamentalist Christian opponents of the Civil Union Bill as intolerant and opposed to freedom of speech. This is simply mistaken - no-one is saying that people like Maxim or Destiny Church have no right to speak. What they are doing is calling bigotry by its name when they see it, and turning out into the streets to oppose it. But this is simply an example of answering speech with more speech - the very freedom that Dunne praises!

What Dunne fails to acknowledge is that tolerance of a view does not mean giving it a free ride. Destiny Church and their bigoted friends have every right to speak - but they have no right to expect the rest of us to remain silent about it.

A rat notices the rising water

Stephen Franks has indicated that he will consider moving to National next year if ACT continues to languish in the polls. This wouldn't involve a straight-out switch, which might invoke the Electoral Integrity Act; rather he would resign from Parliament before the election then stand as a candidate for National.

It's difficult to see this as anything other than a calculated attempt to undermine Rodney Hide, and his reaction will be interesting. But more interesting will be the reaction of National party members and MPs. They've already seen Don Brash cuckoo'ed into the party and then the leadership, and he seems to making it clear that MPs who do not share his extreme free-market views, such as Lynda Scott and Roger Sowry, are no longer welcome in National. If Franks jumps ship and gets a high list placing, things begin to look like a fully-fledged takeover...

Saving the Americans from their own stupidity

Grand Ayatollah al-Sistani returns from London, marches on Najaf with thousands of his followers, and within a few hours has a peace deal. This is an overwhelmingly positive step for Iraq - it allows both sides to back down from the standoff while saving face, and more importantly saves the Americans from their own stupidity.

For all the time the US military spends studying Clausewitz, they seem to have failed to absorb his most basic lesson: that war is ultimately just an expression of politics, whose success and failure must be measured in the political, rather than military realm. And looked at this way, there was simply no way they could win in Najaf. Back off, and lose face. Invade the shrine and martyr al-Sadr, and he becomes more powerful in death than he ever was in life. The last three weeks have been a futile exercise in American stupidity, driven by their desire to play hardarse, which has gained them precisely nothing, and killed a lot of people in the process. No doubt they'll proclaim a victory on the grounds of having killed hundreds of militamen, but those people are replaceable (and are being replaced even now by their brothers and cousins, all hellbent on revenge). The loss of goodwill with the Shi'a population isn't.

Morality, law, and cynicism

Philosophy, et cetera has a good post on the relationship between law and morality. He notes that there is an obvious connection - "why would we outlaw rape and murder if they weren't wrong?" - and tries to analyse it. Unfortunately, he fails to recognise that there are really two questions here: one about the actual relationship between the law and morality, and one about what that relationship should be. The first is entirely a matter of power and practical politics, to be answered by psychologists, sociologists and historians in the context of a particular society (though a quick and cynical answer is that the law will reflect the morality of the lawmakers). The second is itself a question of morality, to be debated endlessly by ethicists and political theorists.

As for domains, there are great chunks of the law that seem to have very little to do with morality. Food regulations, for example, or those governing weights and measures (or road rules, for that matter). These are practical considerations, not moral ones, and so the law cannot simply be a subset of morality . We outlaw things which are perfectly morally permissible, such as selling bananas by the pound rather than by the kilogram (at least in the EU).

The second approach - viewing the issue through the lens of folk-psychology - explains the actual relationship quite well. I've been thinking similar things when trying to build a political theory from cynicism and game theory - law is a tool for influencing behaviour by changing payoff matrices, based on a power-mediated compromise of the moral values of a society's members - but laid out like that, it simply seems trite and uninformative.

Media freedom in Iraq, part III

Having failed to deter the international media from covering the fighting in Najaf by repeatedly threatening to kill them, the Iraqi authorities have upped the ante, dragging them from their rooms at gunpoint to attend an impromptu press conference:

Correspondents in the Najaf Sea hotel said around a dozen policemen, some masked, stormed into the rooms of journalists and forced them into vans and a truck.

The Independent's Donald Macintyre reported that the police, some masked, "shouted threats and abuse at the reporters, along with their Iraqi drivers and translators, and fired about a dozen shots inside and outside the hotel before taking them before the police chief, Major-General Ghaleb al-Jazaari, to hear his emotional complaints about media coverage and the sufferings of police officers during the present crisis".

And the Daily Telegraph said today that its correspondent, a translator and a driver had been forced into a bus and two lorries before being subjected to a "tirade against the press".

The Iraqi Police, it seems, do not like the fact that the world is watching. But more importantly, they do not like the thought that their fellow Iraqis are watching - watching them doing the Americans' dirty work.

Thursday, August 26, 2004

Impeaching Blair

My god! Somebody is actually doing it! After watching discontent simmer on for the last year over the way Tony Blair lied, manipulated, evaded and spun to gain support for the war in Iraq, it has all come to a head. A pair of academics have spent the last six months going over Blair's statements in public and to Parliament, comparing them with what he knew at the time, and concluded that there is a case to answer. Their report (update: - available here) argues that Tony Blair repeatedly lied and breached the responsibilities of his office. And it suggests a solution: impeachment.

Yes, impeachment - the same process that was used against Bill Clinton for rightly regarding his sexual indiscretions as nobody's business but his own. The Americans didn't get it from nowhere, they inherited it from the British Parliament - where it is still on the books despite not having been used for 150 years (having been replaced by the convention of Ministerial responsibility).

The impeachment procedure begins with one MP making an accusation and presenting his or her evidence. If the Commons agrees that there is a case to answer it appoints a committee to draw up articles of impeachment and notifies the House of Lords. If the articles are agreed, prosecutors are then appointed to try the case before the Lords, who are the judges. The Commons decides the sentence if the accused is found guilty.

Eleven MPs have risen to the challenge - sadly none from Labour - and that is more than enough to force a debate. Plaid Cymru MP Adam price makes his case here. I have no illusions about their ability to actually win the vote - but the mere fact that charges are being brought and debated will make it nigh-impossible for Blair to continue as Prime Minister. Hopefully the unctuous little weasel will get the message and resign.

Today is a beautiful day to be alive...

There is power in a union

In response to my post pointing out that lump sum payments to union members are simply the fruits of collective bargaining power, Capital Pundit stupidly asks

why can't teachers seek to secure economic benefits for themselves?

Because there is strength in numbers. Teachers are more powerful together than there are individually, and this allows them to extract greater benefits.

God, I know that we now view the world through the lens of atomised individualism (and as an individualist I think this is generally a good thing), but I didn't think it had gone so far as to blind people to this simple fact.

More good news

Crime is down to its lowest level since 1983. Even National will be hard pressed to find something to complain about in this, given that it is an absolute as well as a per-capita decrease - but I'm sure their spin-doctors will find something with which to contine their tactic of dishonest fearmongering.

We don't need your "civil war"

So, Professor Margaret Mutu makes some stupid remarks about warnings of "civil war" over the foreshore and seabed bill "not being hyperbole", and the far north being wracked by "the sorts of things... that happen in Palestine and Israel", and the right is frothing about it. National's Wayne Mapp immediately brayed "treason!", while ACT has seemingly joined them in calling for Professor Mutu to be fired from her position at the University of Auckland. This is a telling reminder of the ugly authoritarian attitude towards political dissent underlying National and ACT's brand of "freedom" (for wealthy supporters of the status quo only), and frankly paying Mutu far more attention than she deserves. As David Farrar said,

It is rather sad that a so called academic has so little substance in their submission, they have to rely on threats instead of rational persuasion.

The thing is, in the long term, Mutu is right. If we cannot live together with mutual respect for one another, and if one side continually uses its political advantage to reinforce its own privilege while seeking to reinforce the inequalities produced by disposession, then there is no option but to return to the Hobbesean war of all against all. But even with the current dispute over the foreshore, we're a long, long way from that. It is to the great credit of Maori that despite all that was done to them, they have consistently eschewed such tactics, instead preferring a strategy of tireless, patient advocacy. They have argued their cases before the courts, the Waitangi Tribunal, Parliament, and even the monarch, often over the course of decades and in the face of conscious foot-dragging by successive governments (one case took fourteen years for a single reserved decision to be released - during which many of the original claimants had died). That's far more patience than most societies get, and far more than I think we have any right to expect.

Fortunately, the tide is flowing very much against Mutu and those threatening violence. While it may not look that way, the process of settling historical Treaty claims is well on the way to completion; talk of ten of fifteen years is almost certainly an overestimate, and one informed person I've talked to expects it to all be wrapped up by the end of the decade. Absent that source of historical grievance (which will disappear if the truth is told and the settlements are just), there's not nearly as much to fight over.

Dubber vents his spleen at the anti-immunisation wackos...

Refugee quotas

National and ACT are using yesterday's appalling statistics on the failure of New Zealand society to embrace refugees to call for cuts to the refugee quota. According to Richard Prebble, we shouldn't be admitting "illiterate Afghani camel drivers". Which tells us more about Prebble's prejudices about non-europeans than it does about the people who seek refuge here. I'm surprised he didn't call them "sand niggers"...

But National is right about one thing: we should be doing more to help refugees settle in and ensure that they can participate fully in our society. This means english language lessons, assistance with finding work, having overseas qualifications recognised or gaining new ones, and above all, changing the racist attitudes of New Zealand employers. Something you see time and time again in stories about refugees and immigrants is the difficulty they have with finding work (see this week's Listener for the latest example). A New Zealand accent is an unspoken requirement of many jobs, and this needs to change. Until it does, refugees will continue to be overrepresented in the welfare rolls, and highly-qualified immigrants will continue to drive taxis.

De facto marriages

Submissions on the Relationships (Statutory References) Bill are critcising the way it changes the rights of de facto couples, effectively "marrying" them without their consent. On the one hand, most of this is right and proper - the very purpose of the bill is to grant de factos legal equality with married couples. But on the other hand, some rights probably do require some sign of consent and commitment beyond simply shacking up. The existing Property (Relationships) Amendment Act 2001 resolves this with respect to property rights by imposing a three-year time limit, after which a couple is treated as effectively married for the purposes of disposing of property on a dissolution. Incorporating similar provisions into parts of the omnibus bill would be perfectly acceptable.

And on the third hand, these are exactly the sort of questions the select committee process is designed to resolve. The bill will almost certainly be amended in response to submissions, and the balance of rights will almost certainly shift. Hopefully those amendments will be reasonable, rather than simply an attempt to entrench privilege and deny rights to de factos out of spite.

A suitable first case

Huata v. Prebble seems to be an excellent first case for the Supreme Court. Unlike the other cases that have been put to it, it deals with an issue of vital constitutional significance: the relationship between Parliament and the courts.

ACT's case relies on a clause in one of our most fundamental laws, the Bill of Rights 1688, which demands that

the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament

This clause establishes Parliamentary privilege, but it also makes Parliament master of its own affairs. What the court will have to decide is whether who sits in Parliament is part of Parliament's internal affairs, or is an issue of wider public concern. Like the Herald, I hope it chooses the latter path. Our MPs should be chosen by the electorate, not their fellow politicians.

Wednesday, August 25, 2004


Backdraft: How the war in Iraq has fueled Al Qaeda and ignited its dream of global jihad.

"Freedom to discriminate" is not freedom for all

Yesterday morning on National Radio, Stephen Franks announced that he would be willing to vote for the Civil Union Bill if he can use it to gut the Human Rights Act. In Franks' view, the state should be neutral, but individuals should be allowed to discriminate on the basis of race, gender, sexual preference, religion, or anything else they desire, as a simple matter of freedom.

What's wrong with this view? Simply that it is deeply confused, both about discrimination and freedom. If we take freedom seriously, if we want it to be substantive rather than purely formal, then anti-discrimination legislation is both justified and necessary.

Contrary to Franks, the evil in discrimination does not lie in who is doing it; it is inherant in the act itself. Some discrimination punishes people for characteristics which are no fault of their own (such as race, gender, or sexual orientation). This is grossly unjust. Other discrimination (such as that on the basis of marital status or religious or political belief) seeks to supplant the choice of the victim and replace it with that of the perpetrator. This is coercion, an usurpation of personal autonomy, and deeply destructive of human freedom. Both types of discrimination prevent people from participating fully in society, and therefore constitute a denial of our fundamental moral equality. But if these are reasons to bar discrimination by the government, they are also reasons to bar discrimination by individuals. Injustice does not cease to be injustice, or coercion cease to be coercion, simply because it is done by a private person rather than the state.

But what about freedom? As a pluralist who values personal autonomy, I believe that freedom is both necessary and valuable because it allows people to live lives of their own choosing. "Freedom to discriminate" interferes with this; it allows those with economic or social power to victimise those without, and force them to abide by their arbitrary whims. That is freedom for the pike, and we are entirely justified in limiting it. Like limits on the use of force, limits on discrimination do not diminish freedom, they enhance it. They help ensure that freedom can be enjoyed by all, rather than just by the rich and powerful.

Fraud is better than force

There's an interesting story in this week's New Statesman about the upcoming elections in Afghanistan. It seems that democracy is catching on like wildfire over there - voter registration has been so successful that the number of registered voters is greater than the eligible population. In some areas there are twice as many registered voters as adults, and tales of people with multiple voting cards abound (one taxi driver had five).

It is clear then that the elections are going to suffer from widespread fraud. But OTOH, that seems to be a lot better than the alternative of settling things with guns. They will be far from perfect, but if the results of the elections are accepted by the people, then the Afghan elections will represent a real and positive step towards democracy. In this case at least, fraud is better than force.

Human rights and hurt feelings

There's been a lot of moral outrage over the case of Andrew MacMillan, a convicted murderer who was awarded $1200 in damages by the Human Rights Review Tribunal after he was denied access to a letter of complaint written about him to the prison. The outrage is driven both by the Tribunal's reason for awarding damages - "injury to his feelings, loss of dignity and humiliation" - and the feeling that MacMillan is a scumbag who doesn't deserve the money, but unfortunately it misses the point. This is more than just a matter of "hurt feelings".

The letter of complaint did not just go into a file somewhere to be ignred. It was used against MacMillan. He was told about it by prison officers, with the implication that it would affect his treatment. It was given to the parole board, where it could play a part in their decisions. It was not just a letter, it was evidence.

The letter was used as evidence by the parole board and it was used as evidence within the prison. In both cases, MacMillan was denied the right to view and challenge it. That violates accepted rules of judicial procedure, the Privacy Act, and ordinary standards of fairness and decency - all of which still apply to convicted murderers. Denying MacMillan the right to view and correct information held about him - to put his side of the story - is a very real harm, especially in a context where the information seemed to be known by everybody but him, and where people who had power over his life could act on it.

Those outraged about this are missing a very important point. If we want the right to be able to challenge evidence against us, or to tell our side of the story to government departments, banks and credit agencies, then we must extend this right to everyone. Even Andrew MacMillan.

Kangaroo court

The US has held its first military tribunal for an "enemy combatant" at Guantanamo. Salim Ahmed Hamdan of Yemen is being "tried" on charges of conspiracy to commit murder before a panel of five senior US military officers. He has no right to challenge his "judges" for pre-existing bias, no right to select his own counsel, no right against self-incrimination, and no real right of appeal. The rules of evidence permit hearsay and secret evidence, some of which he will have no right to hear, let alone challenge. This is not a fair process; it is a kangaroo court, dispensing victor's justice.

This is destroying America in order to save it. It compromises one of America's essential values: the right to a fair trial. The only way to avoid this compromise is to prosecute terrorism suspects in an ordinary court, in front of an ordinary judge, with ordinary rules of evidence. Otherwise, by forcing America to betray the very values that make it great, the terrorists will win.


Oh dear - Russell plugged me during his national radio session this morning.

Guess I'd better write something then.

Tuesday, August 24, 2004

Backlash for tolerance

Check out the results of today's Stuff poll! The question was "does the way Destiny Church is protesting against the Civil Union Bill make you uncomfortable?"; A hefty 75% of respondents agreed.

I'm quite aware of the limits of internet polls. They're self-selected and therefore unrepresentative. That said, it's a good result. My gut feeling on yesterday's hatefest is that it will have driven people to support civil unions, simply because the opposition is so damn ugly. All we need now is for Bill "abomination to all mankind" Gudgeon to open his mouth again, and things should be set.

Dropping out?

Span has an insider's view of the Alliance's announcement that they won't be contesting the list, and she's not very happy:

So I've got back in - started going to meetings again, having my say, raising funds, and through no fault of my own found myself subbing for the youth rep on the Alliance Council this weekend. Of course what happened in that room is not for consumption outside the membership, but suffice to say the media line that was agreed is NOT what has been put out by the Leader in the last two days.

Oh dear. Does this mean a public retraction, or will they be stuck with what has been announced?

While it seems to be good tactics (absent a miracle a vote for the Alliance is a wasted one, and so they might as well direct them somewhere useful), not contesting the list will almost certainly result in the final demise of the party. But maybe they can salvage a decent left-wing think-tank from the ruins...

"Bribing" unions

NZPundit's fill-in denounces the government's lump-sum payments to PPTA members as "bribery". He's wrong. It's simply the fruits of union collective bargaining power.

To put it bluntly, the purpose of a union is to use its collective power to secure economic benefits for its members. Normally, this takes the form of improved wages and conditions - but it doesn't have to. In cases where the employer wishes to maintain a unified pay-scale and not to have to distinguish between union and non-union staff on a day-to-day basis, a lump sum is entirely appropriate. And that is exactly what has happened here - the Ministry of Education simply doesn't want the hassle (administrative and otherwise) of paying PPTA members more per week than non-union staff with identical duties and experience, and so it has opted for a one-off payment instead.

This is obviously annoying to teachers not receiving the payment, but there's a simple solution: join the union.

Constitutional issues IV

Greyshade has weighed in with another hefty post on constitutional reform; The Holden Republic has already responded. I don't have much to add at the moment (having already vented my spleen about the threshhold), but both posts are well worth reading.

Dropping out

The Alliance has decided not to contest the party list next election, for fear of robbing votes from the Greens and the Maori Party and driving them beneath the threshhold:

"Given the Alliance does not have parliamentary representation, the Alliance supports Labour coalition partners to be the Green Party and the Maori Party as opposed to the NZ First and/or United Future," the council resolved.

It's a smart choice for people who want a nominally left-wing government, but at the same time it illustrates the greatest flaw in MMP: the threshhold. This entirely arbitrary, all-or-nothing barrier distorts voter preferences, distorts party behaviour, and makes elections turn on which smaller party doesn't make it (which then encourages large parties to actively try and eliminate smaller ones and ensure that their supporters go unrepresented). It works directly counter to the purpose of a system predicated on greater democracy and enhanced representation.

If we want every vote to count and as many people as possible to be represented in parliament, we must eliminate the threshhold. In practice this means reducing it to 0.83% - the amount required to gain a single MP. This would allow people to vote honestly rather than tactically, and remove the incentive to cut deals over electorate seats (something voters don't seem to like at all, despite it making perfect tactical sense).

As for how it would look, if the 2002 election had been conducted on this basis, there would have been three additional parties in Parliament: the Alliance and Outdoor Recreation with one seat each, and Christian Heritage with two. The 1999 election would have given us a one-seat ALCP and Future NZ, and a three-seat Christian Heritage. Of course, both these elections were distorted by the presence of the threshhold - voters tended to see support for a minor party as a wasted vote if it had no chance of making 5%, and a large number of parties have in consequence ceased to contest the list. But the overall effect is likely to be a handful of smaller groups with one or two MPs each.

No matter how much we may dislike them, the fundamentalist Christians, Libertarians, and ACT are as deserving of representation as you or I, and a system which systematically prevents them from gaining it is fundamentally unjust.


The Israeli government has altered the route of its security barrier so that it encroaches less on Palestinian land. This is certainly better than before, but still not good enough. If the Israelis want to build a wall, they should be building it on the Green Line - any deviation from that must be negotiated with the Palestinian people. Otherwise, they're simply using "security" as an excuse to steal land and perpetuate injustice.

Unfortunately, at the same time they're expanding their settlement program, in violation of the freeze they'd agreed as part of the "road map". Give with one hand, and take away with the other...

Monday, August 23, 2004

The third world

Not Yorkshire, but the Wairarapa. Masterton's sewage system is apparently leaking 890,000 litres of treated sewage into the local water table. It could be worse - it could be untreated, but it's still not exactly good.

Isn't this the sort of thing the government should be doing something about? If local bodies cannot afford basic sewage systems that don't endanger people's lives, then shouldn't central government step in to ensure some minimum standards?


What can progressives do in response to today's fundamentalist hatefest outside Parliament? Lobby, of course! Remind MPs that those blackshirted bigots are not a representative voice, and that most New Zealanders support equality and human rights rather than hatred and bigotry.

As for who to target, I think the Labour, Green and Progressive Coalition votes are probably fairly stable. The people to target are those MPs from National, NZFirst, and ACT who supported the bill. They're the ones who may change their minds or chicken out. It would also be an idea to contact the four Labour MPs who did not vote the first time round and encourage them to vote in favour.

If you don't know what to say, the Campaign for Civil Unions has some sample letters here.


I really should have jumped a train to Wellington to stand up for Civil Unions against Tamaki's blackshirts - but instead I have to read about the knowledge economy.

Update: Reports on how the protest actually went from Justleft, DPF, Chinashop and Scoop.

Update 2: More from Beautiful Monsters, Dorking Labs, and Russell Brown.

The Social Report

The Ministry of Social Development released its annual Social Report over the weekend. It's a grab-bag of statistics aimed at helping to pin down the rather fuzzy concept of "social wellbeing" (defined as "those aspects of life that we as a society agree contribute to our individual happiness, quality of life, and welfare"). There's both good news and bad news in it, and predictably political parties are picking the areas they care about and trumpeting the results accordingly. I've spent the morning skimming it, and here's my interpretation of the results.

Firstly, it's generally positive. As Stuff pointed out,

We rank in the top half of the Organisation for Economic Co-operation and Development for two-thirds of the indicators where data can be compared with other countries

which isn't anything to be ashamed of. More importantly, the satisfaction ratings - with work/life balance and with leisure - were very good. If you think there's more to life than work and money, then these are very positive statistics. Stuff labels it "complacency", but there is nothing wrong with feeling satisfied about your life - and anyone who thinks differently is trying to sell you something.

Most of the criticism from National has focused on the per-capita GDP/GNI data, and our low relative ranking in the OECD "league table". This completely ignores the fact that there has been a very positive trend in that area for the past few years, with growth well above the OECD average. It also ignores the fact, made tellingly by Greyshade, that league tables don't matter.

Their criticism of average wages suffers from the same problem - criticise the level, ignore the very positive trend (average wages have grown by 10% after inflation since 1999, with much of that growth occuring between 2002 and 2003). Their criticism of adult literacy rates suffers from a different problem: old data. The literacy statistics date from the 1996 International Adult Literacy Survey. Which makes Judith Collins' juxtaposition of the two and claim that "[y]ou would expect an improvement in some of these indicators in the current economic environment" more than a little disingenuous - one area has improved significantly and the other hasn't been remeasured for eight years. Either she hasn't read the report herself, or she thinks that nobody else will. Neither is a very good look, especially for someone with ministerial aspirations.

Old data is also the cause of the Greens' criticisms on income inequality. The data there is based on the 2001 Household Economic Survey, which is conducted every three years. Again, the reason we haven't seen progress recently is because we haven't bothered to look. IIRC, the next HES will be conducted in September 2003, so next year's Social Report may finally have something new to say.

(In fact, looking at the explanatory notes, 17 of the 43 indicators could not be updated this year. Surely MSD can do better than that?)

What the Social Report is good for is compiling a variety of data from numerous areas to give a broad overall picture - and that picture is generally good. The real black mark is in the area of child abuse, and the government needs to do a lot more to fix that, but overall things are moving in the right direction.

Friday, August 20, 2004

More "no-fly" madness

Via CalPundit: More evidence that the Department of Homeland Security's "no-fly" list targets Greens and Democrats:

The Senate Judiciary Committee heard this morning from one of its own about some of the problems with airline "no fly" watch lists. Sen. Edward Kennedy, D-Mass., says he had a close encounter with the lists when trying to take the U.S. Airways shuttle out of Washington to Boston. The ticket agent wouldn't let him on the plane. His name was on the list in error.

After a flurry of phone calls, Kennedy was able to fly home, but then the same thing happened coming back to Washington.

Kennedy says it took three calls to Homeland Security Secretary Tom Ridge to get his name stricken from the list. The process took several weeks, in all.

Unfortunately, it's a bit of a problem if you're not a Senator and don't have that sort of access to those in power.

It will be very interesting to find out how his name got on the list - but I expect the answer will be classified.

Is this the sort of society we want?

The right are constantly pointing to the United States as a model, telling us that we should cut taxes, slash services, and introduce "workfare" schemes for the unemployed. In other words, we should be more like America. But is a widening gap between rich and poor, a rising poverty rate, and reduced access to basic healthcare really the sort of society most New Zealanders want to live in?

I think not.

The opportunity in the "labour shortage"

Catriona MacLennan points out the great contradiction in New Zealand society at the moment: we have 80,000 unemployed ekeing out their lives on inadequete benefits. Worse, we have an "underclass" of people who don't have jobs - who have never had jobs - and who are forced into petty crime to sustain themselves. At the same time, we have a "labour shortage", and employers are beginning to import workers from overseas. The solution is obvious:

Let's think hard before we consider doing that. Now is the perfect time, instead, to make a concerted, nationwide effort to get all the unemployed and underemployed people already living in New Zealand into work.

I agree fully with this sentiment - it is ridiculous to talk of a "labour shortage" when 4% of the workforce is unemployed and actively seeking a job. In the 80's we thought that that level of unemployment was an atrocity. Nowdays, though, the business community is willing to write off those 80,000 people as the "crud at the bottom of the barrel".

What policies can we pursue to ensure that the "labour shortage" turns into tangible benefits for the worst-off in our society? The obvious one is to make it easier for people to move from the benefit into work. This means reducing the harsh clawback regime which prevents the unemployed from building their CVs through part-time work, providing grants and assistance to those wishing to relocate to areas where there are jobs, and eliminating the standdown period which makes taking a job an unacceptable economic risk. Labour has made some progress in this direction, but not enough, and they have focused on punitive measures (such as their infamous "no-go" zones) rather than positive assistance. As for the people MacLennan writes about - people pursuing a life of petty crime because they have no other alternative - the answer is to give them those alternatives. At the moment the probation service simply ignores its charges; they should be actively working to find them meaningful employment, and to ensure they stay in it, not abandoning them to live on the streets.

And of course the Immigration Service should take a dim view of companies trying to import workers wholesale or gain exemptions to allow them to hire backpacker labour in areas where there is high unemployment. We supposedly live in a free-market system. Well, the solution of the free-market to a labour shortage is for employers to either offer higher wages, or to lower their standards and commit to training. If they are unwilling to do that, and in consequence cannot find the workers they need, then they have no-one to blame but themselves.

LiveJournal syndication

The LiveJournal syndication feed has been updated to use Atom rather than Blogstreet - meaning that you can get full articles rather than truncated headlines.

"Homosexual panic" claims another victim

I've avoided talking about the McNee case because a) I don't post about crime, and b) Jordan said everything I wanted to say far more eleoquently than I ever could. The "defence" of "homosexual panic" is based on bigotry and hate, and effectively licenses the murder of gays. And unfortunately, David McNee isn't its only victim. Again, the circumstances are dubious (to say the least), and the victim no angel, but there is no question that his killer went far beyond self-defence. The message sent by both judge and jury is that killing gays is acceptable, and that the standards we would apply on questions of provocation and appropriate force are lowered if the victim is homosexual. Dan White would be proud.

Voltaire's tagline was ecrasez l'infame. Well, this is an infamy that needs to be erased. If we do not treat every New Zealander as being of equal moral worth and their lives as being of equal value, then we have no right to call ourselves a civilised nation.

Tied polls

Political Animal has a good post on interpreting the margin of error in polls, specifically targetted at lazy announcers who claim that a poll is "tied" because the difference between two parties is less than the MOE.

Our regular entrail readers would probably do well to read it.

Thursday, August 19, 2004

Constitutional issues III

The Holden Republic has more in our exchange on constitutional issues. He's right; we don't differ greatly in our opinions. One difference is that he seems to have read my coment that things could simply be left to evolve as a "should". That's not really what I intended. It's not that we should simply leave constitutional structures beyond human rights protections to evolve as that we can, because there's less need for limits and the flexibility may be advantageous.

There's also a strong measure of pluralism about government structure here. To my mind the form of a government isn't nearly as important as what it does. What seperates good governments from bad and acceptable forms from unacceptable ones is the extent to which they support human rights, individual freedom (for everyone, not just the rich), and true equality of opportunity; are responsive to their people; and have proper checks and balances to prevent abuses. There is no one best way to do this - modern liberal democracy does it well, constitutional monarchy seems to do OK, and concievably even a benevolent dictatorship might be able to manage. Generally, our current structure is within the bounds of acceptability. It has its flaws - too much executive power, too few protections for human rights - but they require tweaks rather than fundamental change. We don't need to move to a republic to address those concerns, hence the slow drift and republicanism-by-a-thousand cuts rather than a clean break.

(That said, I also think that monarchy is incompatible with human dignity. We are citizens, not subjects; we rule ourselves, rather than needing to be ruled by another. While constitutional monarchy (backed by the memory of what happened to Charles I and James II) has removed the arbitrary excesses of kingship, it can't erase this. But it's hardly worth building a guillotine over.)

As for ultimate republican forms, others have talked about codifying the reserve powers, twinking out the governor-general and splicing in a ceremonial president in their place. This would be the easiest path to a republic, but poses some danger of the president exercising their powers for political reasons (think of Australia's constitutional crisis here). At present we have strong conventions against such abuses, but these could easily break down in the changeover.

A more interesting option is mentioned by Brian Easton in the final pages of The Whimpering of the State. He proposes a "Swedish-style" republic, where

  • the constitutional law would state the lawful successor of Queen Victoria would be the head of state of New Zealand (thus respecting the Tiriti o Waitangi as the foundation of the New Zealand constitution). There would be no other reference to the Head of State (as there is none in the Swedish constitution);
  • the duties of the Governor-General or Queen's representative, appointing the Prime Minister and related activities, would be taken over by the Speaker of the House acting in partnership with two deputy speakers. This Swedish solution emphasizes that the power of governance comes out of parliament.
  • a bill of parliament would become law when the relevant minister signs it and the Chief Justice is advised.

(The Speaker and deputies would be elected by a supermajority, and a dissolution would require the agreement of all three, thus providing balance and reducing abuses.)

This would require greater change than the first option, but I think the result would be better. It fits well with the tone set by MMP and moves us more towards consensus politics. It builds on and amplifies existing conventions regarding the Speaker and their neutrality, and the requirement for a supermajority would enhance this further. And it saves us from having to debate the role of a president (which has been problematic in Australia). Unlike Easton, however, I don't really see the need for a "figurehead clause". Napoleon's advice applies: if we're going to do away with the monarchy, then let's do away with the monarchy, and not leave it lying around where people might still continue to believe in it.

Brash statements

Justleft has an excellent post on Don Brash's claim that New Zealand is on the path to becoming a failed state and the strange correlation between our decline relative to Australia and the pursuit of the very policies Brash advocates...

Looking at the Stuff story, Brash's behaviour is actually quite disturbing:

When it was put to him that it might put potential investors off New Zealand, Dr Brash said he was just presenting a factual argument. "This government is damaging our prospects and it's important everybody knows that."

Asked if he thought it likely that his remarks would make someone who was thinking of expanding into New Zealand think again, Dr Brash responded: "I don't know."

It's clear that Brash is doing everything he can to undermine the economy so that he can then turn around and blame the government for it. In the process he is damaging the interests of every New Zealander for his own political gain. But then, this isn't really any change - he's already shown that he's willing to inflame racial tensions with lies in order to grub votes. And he wants to be Prime Minister?

"Political correctness"

The Herald has published another opinion piece tilting at the windmill of "political correctness", this one from evolutionary psychologist Valerie Grant. In it she treads the well-worn path of pointing out that people are not possessed of equal capacities, and that gender differences in employment are not prima facie evidence of discrimination. She could have saved herself the effort. "Political correctness", as used by right-wing politicians and Herald columnists, simply means "bad" or "I don't like it", and is overwhelmingly applied to policies designed to encourage the very moral equality and equality of opportunity which Grant praises. It is the cry of every bigot upset by the fact that bigotry is no longer socially acceptable, and of every beneficiary of an unequal status quo who fears the erosion of their privilege.

When Peter Dunne and the Maxim Institute cry "political correctness" over the civil union bill, they are complaining about a policy which treats people as being of equal moral worth regardless of sexual orientation. When Don Brash cries "political correctness" over unequal funding for Maori education and health, he is complaining about policies which attempt to guarantee Maori the very basics of equality of opportunity. And when David Farrar cries "political correctness" over the idea of a "Treaty Council" managing the foreshore, he is complaining about the idea that Maori are New Zealanders too, and are therefore entitled to a say in the management of common resources.

Look at who complains about "political correctness". Look at what they are complaining about. If we take those complaints at face value, then "political correctness" stands for the expansion of equality and opportunity and the erosion of entrenched privilege. And that is something we need more of, not less.

ACT to voters: you're stupid

Stephen Franks explains why ACT is polling so badly in its former stronghold of Auckland:

"I know this sounds patronising to Aucklanders but I don't think they are deep thinkers about politics, on average"

Which is obviously why they'd want to vote for a party which calls them stupid to their face, right?

Constitutional issues II

The Holden Republic comments on my post on constitutional issues, rightly pointing out that my claim that "in a democracy, it is the people who are sovereign", doesn't match the legal reality. We're a constitutional monarchy, and legally at least the government's sovereignty derives from the monarch, not the people. Mea culpa, mea culpa; like most New Zealanders, I regard the government as a republic in all but name, and the fact that they claim to exercise power in the name of the queen rather than the name of the people as being about as relevant as whose face is on the money. Ultimately, our politicians answer to us, not to someone in England, and that shows us where the real power lies.

(At the same time, I should also point out that according to practically any post-Enlightenment political theory, even the monarch's sovereignty must be ultimately derived from the people, because we are its only possible source...)

As for my comments on the relative merits of enforceable human rights standards versus the identity of the head of state, it's simply a matter of relative importance and where we want constitutional freedom and where we want limits. Human rights are one area of our constitutional structure in which we don't want flexibility and where we absolutely do want hard enforceable limits on parliamentary action. Other areas aren't nearly as important, and could simply be left to evolve.

Wednesday, August 18, 2004

Rolling in our own excrement

That's my gut reaction to Mighty River Power's plans to refurbish and convert the Marsden-B plant to burn coal. It's a quick and dirty fix, and while there's no doubt that it will add to our energy security, it is also likely to have significant environmental costs. Worse, it will "Maui" the energy generation market again, by providing a source of artificially cheap electricity which will significantly constrain further construction.

The thing is, it doesn't have to be this way. Coal can be burned relatively cleanly and efficiently using gasification technology. It's still worse than natural gas, but it's a hell of a lot better than using quarter-century old boilers originally designed for oil. Which is of course what Mighty River is planning to do. They've chosen the filthiest possible option so as to externalise their costs, and the local community will pay for it in lung cancer.

This is a project that deserves to fail, and the quicker it does so the better. Unless Mighty River commits to using the cleanest available technology, their consent applications should be fought at every turn.

Constitutional issues

Another pair of excellent posts on the Treaty and constitution from Justleft and Grey Shade. There's more in these two posts than I can really hope to do justice to, but here's a few random thoughts.

Firstly, Justleft is right; we need more debate and understanding of these issues if we are to reach any sort of consensus on where we're going. And it has to involve everybody, not just the elite. The Greens suggested a system of "study circles" as a way of promoting grassroots discussion, and I certainly think it's worth a try.

Secondly, I should point out that our constitution isn't entirely unwritten; we actually have a Constitution Act 1986 which collects various pieces of legislation and convention all in one place (it contains elements of the original New Zealand Constitution Act 1852 (UK), the Letters Patent covering the executive council, and conventions regarding judicial independence). The problems are that:

  • it's not entrenched;
  • it's not really enforceable; and
  • it's incomplete (or rather, more incomplete than usual).

    There are advantages to this - it gives flexibility and our constitution can grow and change as we do, but there's the obvious disadvantage of not providing firm enforceable limits on political action. We can further codify it, and make it enforceable, but this will require disabusing our politicians of their cultlike worship of "Parliamentary sovereignty". In a democracy, it is the people who are sovereign; our politicians are going to have to learn to respect this. Unfortunately, too many of them are still mired in FPP culture, and it will probably require generational change before the meme is expunged.

    But overall the real necessity is not a written constitution, but an entrenched and enforceable Bill of Rights. That matters far more than who our head of state is or the exact process for making laws in Wellington.

  • Snow

    I can see snow falling out my window.

    None of it is reaching the ground, but it is very definitely snow.

    Media freedom in Iraq, part II

    Last night I blogged about the Iraqi regime's attempts to intimidate journalists into leaving Najaf. Well, they're getting a little more forceful:

    A police lieutenant arrived at the hotel at 6.30pm in a convoy of two Toyota Land Cruisers from the local police station. He demanded to know the whereabouts of correspondents from al-Arabiya and the Reuters and AP news agencies.

    As journalists protested, the lieutenant said above the hubbub: "We are going to open fire on this hotel. We are going to smash it up. I will kill you all. You did this all to yourselves." In a threat that did not immediately appear to have been carried out, he said four snipers would be positioned on the roof of the police station to fire at any journalists who left the hotel.

    So, what is it they don't want on TV? The eventual US attack on the Imam Ali Mosque? Or the thousands of ordinary Iraqis who have shown up to serve as "human shields" for the shrine?

    Tuesday, August 17, 2004

    More on BCIR

    The Holden Republic has some comments of his own on People Power and binding referenda. He favours a system of negative or abrogative referenda, where citizens can overturn a law passed by Parliament on a straight up/down vote. I've blogged about this form of referedum here; it avoids the problems associated with positive referenda and would be particularly easy to graft onto our existing constitutional structure. If the primary goal is to restrain executive power, then this is the easiest way to do it.

    Meanwhile, Span has had her own run-in with the advocates of BCIR, and wasn't impressed. One of her concerns is that "the loudest voice (whether it be loudest by virtue of numbers or money) can shout down others", but this is really a problem with any form of democratic government. The squeaky wheel will always get the grease, and so the answer is to do some squeaking of your own. If you don't, and your interests are ignored in consequence, then you have no-one to blame but yourself.

    But her prime concern is the danger posed to minorities or disadvantaged groups by a majoritarian system without proper checks and balances. And I agree. No government should be able to (for example) outlaw homosexuality or deny some of its citizens the vote, whether by representative action or referendum. But the answer to that is to impose such limits. I've talked about some of the ways we can cruft this here; probably the easiest is to allow Parliament to overturn a referendum on a simple majority vote (Voters' Voice's proposed 75% is simply too high). This has the effect of making referenda "binding" only if the government wants them to be, but OTOH the informal limit of politicians having to go on the record to vote the people down should not be underestimated. Alternatively, if we eventually move to a written constitution with an enforcable Bill of Rights, then it ceases to be a problem; referenda which seek to deprive people of their rights could simply be struck down.

    A losing slogan

    With the US election fast approaching, the Elder Party has nominated its usual candidate and kicked off its campaign for the presidency. This year, as usual, they're using a variation on the same old slogan:

    Cthulhu for President 2004: Don't settle for the lesser evil!

    Unfortunately, I'm not sure that that's really going to cut it this time round. I mean, Great Cthulhu may wait dead but dreaming for the time when the stars are right to wake and draw humanity into his many-tentacled maw, but is he really worse than George W. Bush? Are his policies really worse than those of the Republican Party of Texas?

    Sadly, it's no longer clear that Great Cthulhu is in fact "the greater evil"; this essential point of difference has been lost. So instead he'll just have to follow the path of every other presidential candidate, and campaign on the following slogan:

    Cthulhu for President 2004: The lesser evil for once.

    We now return you to your regularly-scheduled broadcast.

    Police and domestic violence

    New Zealand First is calling on the government to review the Domestic Violence Act in the wake of a report saying that it was ineffective. However, the reason it is ineffective is that it is not being properly enforced by Police; they just didn't take it seriously. The answer then seems to be obvious: review the Police, and find out why they are refusing to enforce the law. If it's resourcing, then find out what they need to be able to do it properly, and provide it. But if it's bad attitudes and a belief that domestic violence isn't really a crime and isn't worth their effort, then that needs to be rooted out.

    Media freedom in Iraq

    For a long time now I've been pointing out that the "freedom" the Americans have bought to Iraq doesn't seem to include freedom of the press. First the Americans, and now the Iraqi interim government have imposed controls on the press aimed at preventing "unwarranted criticism" of the actions of US troops or Iraqi politicians. But now with a full-scale war raging in Najaf, the regime is trying even harsher tactics to ensure that the "wrong" message doesn't get out:

    The move against reporters in Najaf, designed to intimidate journalists other than those embedded with US forces into leaving the city, began when Najaf's police chief, Ghalab Jazaree, summoned reporters to announce that they had two hours to start the return journey to Baghdad.


    As a group of Arab and Western journalists were attempting to meet the Governor, Adnan Zurufi, to protest against the order, a second police contingent arrived bearing a written order to all journalists in the city to leave. The journalists at the Governor's office were turned back by a plain-clothes security officer who told them: "You have been warned. You have your two hours. If you don't leave you will be shot."

    I've said it before and I expect I'll be saying it again: the "new" Iraq is looking more and more like the old Iraq with every passing day.

    Monday, August 16, 2004

    More on a "Treaty Council"

    Dr Alex Frame has been kind enough to provide me with a copy of his submission on the foreshore and seabed settlement, in which he proposes the idea of management by a "Treaty Council". It's a short but interesting read. Those worried that this sort of co-management will erode our customary right to go to the beach shouldn't be; the proposal is quite explicit that

    the Council's management of the estate shall be such as to accord to all New Zealand citizens the greatest degree of public access, enjoyment and use, without discrimination on grounds of race, origin, belief or status, compatible with the Three Articles of the Treaty of Waitangi, the general laws of New Zealand, and the efficient management of the estate.

    [Emphasis added]

    The Council would be forbidden from selling the beaches, or from granting any lease with a period of longer than 20 years. While its not stated (this is a skeleton proposal, after all), ports and other long-term developments could easily be permitted by Act of Parliament. Current law requires this if the crown wants to sell any part of the foreshore; that bar could easily be lowered to the granting of longer-term leases.

    The overall approach is one of co-operation and localism. The council would co-opt members where local issues were at stake, and not just from the Maori community. The aim would be to apply the broad principles stated above to produce a local solution for local circumstances, rather than trying to insist that "one size fits all".

    As I said earlier, I like this proposal. It's co-operative rather than adverserial, has great symbolism, and allows all parties to save face. I just hope that the government has the courage to change its mind and adopt it, rather than trying to plough on with its current plans.

    Save yourself $15

    Following on from my comments on People Power, here's the contents page with links to the material available on the internet.

    It's not nearly as bad as the impression I got while reading the book, but its still a hell of a lot of second-hand material they're trying to charge for...

    Good on them

    A while ago I mentioned that the National Front were coming to Wellington for a demonstration. Now it seems that Wellington residents have risen to the occasion and are organising a march against racism to show them they aren't welcome.

    The aim was nicely captured by one organiser, who was quoted in the Herald as saying:

    This is a democratic society, they [the NF] have a right to be organised, they have the right to oppose anything. We have to show we are much better than them for society

    But it's not just about the National Front - the march will also be opposing humiliating immigration policies and Maori-bashing. I guess Don Brash had better watch out...

    Sunday, August 15, 2004

    Constitutionalising the Treaty, part II

    Antipodean Journal has more on the subject of Waitangi and the separation of power, but some of it seems rather confused. For example, when commenting on what JustLeft called "version 2" of our constitutional history (in which "Aboriginal title was, arguably, extinguished by the English common law that arrived with the Crown"), he says:

    The problem with this version is contained in the last sentence. Where the British empire expanded into regions inhabited by indigenous peoples, the common law dictated that aboriginal rights of sovereignty pre-existed the right of the Crown. Sovereignty could be transferred by force or by treaty, but it had to be transferred.

    This is simply wrong. There are no common law "aboriginal rights of sovereignty". There are common law aboriginal property rights, or aboriginal title, which predate the crown and survive colonisation unless extinguished or abandoned, but property is not sovereignty.

    What version 2 rests on is an explicit denial that indigenous peoples are sovereign. You can turn up and sign a treaty with them, but according to the legal doctrines favoured by version 2, it's not a real treaty because "savages" lack the capacity to sign one, and it's also not a real cession because they have no actual sovereignty to cede. This is seen perfectly in Lord Normanby's despatch to Hobson, as quoted by Justice Prendergast:

    We acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible to make such acknowledgement in favour of a people composed of numerous, dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate in concert

    According to Prendergast, "such a qualification nullifies the proposition to which it is annexed"; New Zealand was "thinly populated by barbarians without any form of law or civil government", and hence sovereignty vested in the "first civilised occupier" to come along and plant their flag. But however morally abhorrent this doctrine may be, it's not actually incoherent; version 2 tells an internally consistent (but repugnant) story.

    Further on, Rohan argues that New Zealand's nature as a unitary state has meant that we have been unable to justify the creation of a supreme court to limit state power. This is true insofar as such courts haven't been required by the political structure (by contrast, they are required in non-unitary or federal states, to mediate the distribution of powers between different levels of government). But that doesn't mean we can't have one!

    We don't need to view New Zealand as a non-unitary state in order to limit the power of Parliament - all we have to do is decide that that power ought to be limited, that there are some things that the government has no right to do. We saw an effort to do this in the 80's, when Geoffrey Palmer attempted to give us a binding and enforceable bill of Rights. Interestingly, the original version incorporated the Treaty, including the following clause:

    4. The Treaty of Waitangi

    (1) The rights of the Maori people under the Treaty of Waitangi are hereby recognised and affirmed.

    (2) The Treaty of Waitangi shall be regarded as always speaking and shall be applied to circumstances as they arise so that effect may be given to its spirit and true intent.

    (3) The Treaty of Waitangi means the Treaty as set out in English and Maori in the Schedule to this bill of Rights.

    Unfortunately, this foundered on numerous objections, and the binding and entrenched status was watered down by a Parliament jealous of its own sovereignty. But there's no reason why we can't try again, but I suspect we'd all want a little more idea of the balance between Kawanatanga katoa and tino rangitiratanga before doing so.

    Saturday, August 14, 2004


    What does it mean to say that Pakeha have become indigenous too? Part of it seems to be an appropriation and sharing of the Maori concept of turangawaewae. Sandra Paterson has an excellent piece in the Herald about this, and how this land is her land too...

    Friday, August 13, 2004

    Maori are New Zealanders too

    Those who think I'm being unfair below by suggesting that those opposed to the idea of vesting the foreshore in a "Treaty Council" want a New Zealand run by and for Pakeha might want to consider this: the core of Bill English's campaign on the foreshore and seabed was the cry that "the beaches belong to all of us". He even explicitly said that "we all deserve a say". Well, Maori are a part of "all of us". It follows that they also "deserve a say" on how shared resources - such as the beaches - are managed. Denying them this say is to deny that Maori are New Zealanders too, and (by implication) saying that only Pakeha count.

    This is not to say that a "Treaty Council" is the only solution. But it may just be the way out of this whole godawful mess. The symbolism of appealing to the Treaty and its spirit of partnership and cooperation cannot be understated. It's defensible on strictly liberal grounds as well as the Treaty's quasi-contractual ones; it stresses that this is a country where the beaches belong to and can be enjoyed by everyone, while holding out a hand to Maori and promising that their rights will be respected. It avoids creating outright winners and losers, keeps people talking, and (most importantly) gives everyone a say.

    The more I think about it, the more I like it. If the government is going to insist on denying due process, then this is the way forward.

    Picking fights

    David Farrar has managed to turn my opposition to the use of information extracted by torture as evidence in a court of law into opposition to acting on it to prevent stadiums being blown up and such. Hardly. By all means, arrest people and evacuate places - but don't expect to be able to prosecute later unless you have real evidence that can be cross-examined and isn't tainted by physical and mental coercion.

    He also disagrees with my position on parole. To which I'd like to point out that, sentences being finite, almost every prisoner will be eventually be released - which means we are going to have to deal with the problem of reintegrating criminals back into society one way or another. How does he suggest we do it? Continue to dump people on the street? Or just stick his fingers in his ears and pretend that there is no problem, and that if you just threaten to throw more people in prison for longer (something with "no significant deterrent effect") then the very real problems faced by former prisoners of finding alternatives to crime will just magically disappear?

    As for the Treaty Council, I'm quite aware of what the foreshore decision said, and my position is that Maori should be allowed to take their claims to court just like everybody else, as a simple matter of equality before the law (hey, didn't Don Brash say something about that?) But if the government is going to deny the certainty to be found in due process, it is going to require a political solution which avoids leaving Maori with the feeling that they are being walked all over by the majority - otherwise, this is just going to fester and be relitigated whenever there is a change of government (especially if the Maori Party sticks around). Management by a "Treaty commission" is one possible solution in this vein. It's not saying "Maori own the country and Pakeha are only tenants", it's saying "we all own it, and we will manage it together". I guess someone who believes that New Zealand should be run by and for Pakeha would find that threatening, but I certainly don't.

    Thoughts on People Power

    What do you get when you turn a couple of loonies from Investigate magazine loose on the topic of direct democracy and binding citizens'-initiated referenda? An overpriced, vanity-published piece of shit like People Power. The book is a compilation of material, almost all of which is available on the internet for free, and most of which proves the point that the biggest problem with the idea of BCIR is the people who support it.

    There's material in here from Winston Peters, stuff from the anti-EU UK Referendum Party (who seem to spend most of their time watching out for the Black Eurocopters that will take their precious pound away), and from people who seem to think that the idea of "checks and balances" is for wimps. Much of it is simply frothing about how the government has done unpopular things (varying from removing the GE moratorium to decriminalising prostitution to not sticking prisoners in windowless cells and feeding them only bread and water) and how binding referenda would put a stop to all that. Then there's the piece by Roger Kerr - a man who has consistently viewed the public as stupid proles who must be excluded from policymaking as a "special interest", and who opposed MMP on the basis that the requirement for wider democratic consultation would prevent the government from adopting necessary but unpopular policies. Now that the majority is on the other foot, he's seemingly changed his opinion. I'm sure the near-success of the Campaign for Better Government has nothing to do with it...

    The core of the book is the Voters' Voice BCIR proposal. Unfortunately, this suffers from the same problems as New Zealand First's - it has loopholes you can drive a Mumak through, and little thought has been given as to how it would be integrated into the rest of New Zealand's constitutional and legal structure. Checks and balances are of course right out. It's a shallow treatment which does the idea of BCIR a great disservice.

    However, it's not all bad. There's several informative articles in there (notably those from the Economist and Simon Upton), and both Christine Fletcher and David Lange have obviously grappled with the deeper issues (though it would be nice if Eisen would shut up and let his interviewee talk, rather than insisting on interviewing himself). But these pieces are a definite minority, and don't justify the cover price. Save yourself $15 and read it on the net instead.


    Select committee hearings have turned up another interesting possible solution to the foreshore and seabed row: vesting the foreshore in the Treaty.

    The idea is from constitutional lawyer and author Alex Frame, and would involve the stablishment of a "Treaty Council" to manage and oversee the foreshore for the benefit of all New Zealanders:

    The constitution of the proposed Treaty Council is intended not only to assure Maori real representation in the decision-making process... but to draw on Maori wisdom and concepts so as to produce a better management regime for the foreshore and seabed than could be arrived at by the executive branch of Government through its existing mix of agencies.

    I like this idea - it captures the idea that this is not a country where you can own the beach, but a country where they are for everyone, while making significant concessions to Maori. If the government is going to insist on extinguishing customary title, then this would be a far, far better way to do it.

    Null and void

    The California Supreme Court has annulled all the gay marriages performed in San Francisco earlier this year on technical grounds. However (and this is notable) it has not addressed the wider issue of the clash between the state constitution (which outlaws discrimination) and the proposition which defined marriage in heterosexual terms only. That issue goes before a lower court next month, so there's still hope for a just decision.

    And if not, well, I guess California gays can always take their "pink dollar" to a state which respects them, like Massachusetts.

    Giving the green light to torture

    The British Court of Appeal has ruled that British courts can use evidence extracted by torture, as long as British agents had not "procured" or "connived" at it. Turning a blind eye, or not inquiring too closely as to how the information was gained is perfectly acceptable, however. The British government has of course welcomed this monstrous decision, with David Blunkett (the British version of John Ashcroft) saying that while they (obviously) "unreservedly condemn the use of torture",

    "it would be irresponsible not to take appropriate account of any information that could help protect national security and public safety".

    Sorry, but no. Torture has no place in any legal system, and the willingness to use information extracted by those means makes a complete mockery of any condemnation. Gareth Peirce, a solicitor in the case, is right: Britain has completely lost its way, legally and morally...

    Thursday, August 12, 2004

    Iraqi death penalty causes problems

    Danish troops in Basra are now refusing to hand over captured Iraqis because they may face execution. Meanwhile, the British have caved as usual, and are claiming that the EU ban on their country extraditing peopel to face execution or facilitating the death penalty in any way somehow does not apply to their activities in Iraq.

    I guess we can expect the Danes to go home at the end of their stint in Iraq unless they see some progress. Unlike the British, they take the EU's human rights provisions seriously.

    As for New Zealand, I've yet to see any indication of a condemnation of Iraq's reimposition of the death penalty from the New Zealand government, or any reaction at all to the regime's use of torture. How much longer will we remain silent?

    Inside Al-Qaeda’s Hard Drive

    There's an interesting article with the above title in The Atlantic this month, by a journalist who acquired a couple of computers stolen from Al Qaeda's office the night before the fall of Kabul. He's spent over a year translating and decoding the files and interviewing former jihadis to find out what it all means. The result is an unprecedented insight into the operations and office politics of Al Qaeda in the runup to September 11th.

    Here's the money quote:

    Perhaps one of the most important insights to emerge from the computer is that 9/11 sprang not so much from al-Qaeda's strengths as from its weaknesses. The computer did not reveal any links to Iraq or any other deep-pocketed government; amid the group's penury the members fell to bitter infighting. The blow against the United States was meant to put an end to the internal rivalries, which are manifest in vitriolic memos between Kabul and cells abroad. Al-Qaeda's leaders worried about a military response from the United States, but in such a response they spied opportunity: they had fought the Soviet Union in Afghanistan, and they fondly remembered that war as a galvanizing experience, an event that roused the indifferent of the Arab world to fight and win against a technologically superior Western infidel. The jihadis expected the United States, like the Soviet Union, to be a clumsy opponent. Afghanistan would again become a slowly filling graveyard for the imperial ambitions of a superpower.

    Like the early Russian anarchists who wrote some of the most persuasive tracts on the uses of terror, al-Qaeda understood that its attacks would not lead to a quick collapse of the great powers. Rather, its aim was to tempt the powers to strike back in a way that would create sympathy for the terrorists. Al-Qaeda has so far gained little from the ground war in Afghanistan; the conflict in Iraq, closer to the center of the Arab world, is potentially more fruitful. As Arab resentment against the United States spreads, al-Qaeda may look less like a tightly knit terror group and more like a mass movement. And as the group develops synergy in working with other groups branded by the United States as enemies (in Iraq, the Israeli-occupied territories, Kashmir, the Mindanao Peninsula, and Chechnya, to name a few places), one wonders if the United States is indeed playing the role written for it on the computer.

    Only an American would even wonder. From down here, it looks absolutely clear that that is exactly what is happening. The United States has been played; their desire for revenge and not to look "weak" in the face of terrorism has led them to be Al Qaeda's best recruiters, and their pursuit of military rather than political "solutions" is doing more than anything else to bring about Osama bin Laden's dream of a fundamentalist "war of civilizations" between Islam and the west.

    The "gay agenda"

    Leading an "ordinary domestic life", just like anybody else. How can anybody find that threatening? How can anybody find it objectionable?


    The killer of David McNee was on parole, and there's already the usual howling about why we let people out of prison on parole. I think a better question is why the hell was someone on parole living under a bridge and having to work as a prostitute? Don't we ensure that these people have somewhere to go and something to do?

    The problem is not with parole, but the criminal underfunding of those who supervise it. People cannot be successfully reintegrated into society if they are just dumped on the street with the clothes they stand up in and a few dollars and told to get on with their lives. If we want this to work, we need the probation service to be actively assisting those on parole (and those at final release), ensuring that they have homes and jobs - and this means funding them to do it. Otherwise, passive neglect is simply going to lead to more problems.

    Every prisoner will theoretically be released from prison at some stage, and so the problem of reintegration has to be addressed. Parole is a good way of doing it if we do it properly. And if we are not going to do it properly, and we allow prisoners to drift back into criminal activity through neglect, then we have no-one to blame but ourselves.

    Supersize Me

    I'd like to think that this movie will help me kick my McDonald's addiction, but if Fast Food Nation didn't do it, then I doubt this will. Still, it was a scary movie - if only for showing how much larger American portions really are. 1.2 L of Coke with your burger? Would you like a catheter with that?

    Constitutionalising the Treaty

    Antipodean Journal has an interesting post about the Treaty and the separation of powers, in which he argues that the Treaty's status as "the legal basis of Crown sovereignty in New Zealand" requires "an independent authority capable of judging Parliament's fulfillment of its responsibilities" - in other words, for judicial review of laws to ensure consistency with the Treaty. JustLeft follows up with a post on our two versions of constitutional history.

    I don't have much to add (yet), but here's a couple of thoughts: firstly, the Treaty is obviously not the legal basis of the crown's sovereignty, for the simple reason that there can be no such basis. Sovereignty does not flow from law; it flows from popular consent. And that means the consent not just of Maori, but of Pakeha as well. Ths doesn't mean that the Treaty is irrelevant - it is a potent symbol of consent, and the legitimacy of the government will inevitably be judged by how well it lives up to its end of the bargain - but those parts of it dealing with cession and sovereignty are essentially only of historical interest.

    Secondly, having the crown be "the sole arbiter of its own justice" has led to gross injustices in the past, is leading to injustice now over the foreshore, and will lead to further injustices in the future if Don Brash gets elected. But we do not need to make the Treaty fully justicable in order to put a stop to that. "Treaty clauses" in legislation go a long way towards preventing future breaches, and provide Iwi with a course of action if their rights are threatened. The problem is that the government can always set out to consciously violate the Treaty, as it has done over the foreshore and seabed issue, under cover of "Parliamentary sovereignty". Entrenching the Treaty would (almost certainly) prevent this, but I can't see that happening in isolation; it would be as part of a general shift to a justicable, written constitution with general human rights provisions. Unfortunately, the people in favour of this sort of a move seem to also be the ones who want to write out the Treaty and pretend that it never happened (or that only Article One happened)...

    There is however another way to view the Treaty: not as our constitution, but as our Declaration of Independence. A mission statement, a goal to strive for, something that should guide our laws "so that effect may be given to its spirit and intent". This suggests an approach similar to that suggested by David Slack in Bullshit, Backlash, and Bleeding Hearts: looking at every piece of legislation to see what Treaty issues come up and how they are best addressed, and using specific clauses to do so rather than a catchall appeal to "Treaty principles". This keeps power in Parliament, not in the courts. On the other hand, it doesn't solve that central problem of enforcability.

    The real problem though, as JustLeft points out, is reconciling the two stories of our constitutional history. I don't have any answers to this, except to encourage people to study the subject, in the naive belief that the facts speak for themselves. Failing that, we may just have to wait for nature to take its course. There's a cynical story about scientific progress, that the balance shifted from the corpuscular to the wave theory of light chiefly because the advocates of the former theory had died. Sadly, social progress often works in the same way, through attrition rather than argument.

    Wednesday, August 11, 2004

    More on Iraq torture

    While it hasn't yet been picked up by the major media, the Oregonian is continuing to push this, with an editorial entitled Iraq incident requires answers:

    the United States government should make it clear to those in the Iraqi government that our massive support has some conditions regarding their human rights record.

    Indeed, the only means that the United States has of promoting the future good conduct of the Iraqi regime is to apply real diplomatic and political pressure now.

    That applies to us just as much as the Americans - yet we are staying silent. Why isn't Phil Goff issuing statements demanding that the Iraqi government respect human rights and prosecute those responsible for torture? Why are our troops still there? Will we be sending a reconstruction team to help out Mugabe in Zimbabwe as well?

    The one good thing to come out of the whole Iraq debacle, the one thing that allows anyone to argue that the war was justified, is that Saddam is gone and his regime of torture ended. Now it turns out that the US killed 13,000 Iraqi civilians simply to replace one bunch of despotic torturing bastards with another - and is killing more every day to keep them in power. We should not be a part of this. Supporting torturers goes against everything our country is supposed to stand for. The only assistance we should be giving in Iraq now is to human rights NGOs and war crimes investigators.

    Not good enough

    Ethnic Affairs Minister Chris Carter is seeking to amend the Identity Bill to ensure that current New Zealand residents are not disadvantaged by the extension of waiting times. It's a good step, but not good enough. The extended waiting times for citizenship are fundamentally at odds with our values as an open, welcoming, and generous country. They should be scrapped rather than mitigated.

    Protests and counter-protests

    Progressives in Wellington have stepped up to the plate to oppose Destiny Church's "enough is enough" hate-rally against gays, by organising a couple of counter protests. The first, on the theme of "hate is not a family value", starts at Te Aro Park. The second is a rally for human rights at Parliament at 11:30. Both are on Monday, August 23rd - the same day as the Destiny Church event.

    If you're in Wellington and support civil unions, then please go to one of these events.

    Getting the story straight

    The government can't seem to get its story straight over Amokura Panoho. In Question Time today, John Tamihere claimed (or rather, agreed with the claim) that the meeting which sparked the complaint against Ms Panoho had been held on government time:

    Rt Hon Winston Peters: Could the Minister tell the House and the country whether his concern about this person’s attendance was that the person in question was attending business in respect of the Tariana Turia party, at the time she should have been, and was employed to be, doing work on behalf of the New Zealand taxpayer?


    Yet later, Steve Maharey seems to be denying it:

    Rt Hon Winston Peters: Is it a fact that a substantial number of the people who attended that hui were there whilst being paid by the taxpayer to be somewhere else - namely, at their job - and if it was wrong for Ms Panoho to be in that situation, which I think most people would accept, then what is being done about the remainder of those who left their job that day to attend that hui at the taxpayers’ expense?

    Hon STEVE MAHAREY: I advise the member that the meeting was in the evening...

    Who's right? Well, Ms Panoho's former employer seems to back Maharey. Does this mean that Tamihere's vindictiveness has led him to lie to Parliament?