What do Facebook and yesterday’s official Queen’s Birthday have in common? They are windows into our constitution.
Start with the Queen, dignified cornerstone of the constitution, anchor for tradition and symbol of the limits of politicians’ proper exercise of power.
Australia will likely remove that cornerstone if the Rudd government lasts a while. That will trigger debate here. Mike Moore, who sat in on Australia’s 1998 constitutional convention (as I did), wants that debate under way now.
The debate here is different from in Australia because the Treaty of Waitangi, to which the Crown was one signatory, complicates and maybe precludes a “minimalist” change, just substituting a president for the Governor-General. Where and how to locate the Treaty in a revised constitution (if at all) suffused proceedings at a constitutional conference in 2000.
Maori at that conference were wary of change, some fearing a downgrade of the Treaty. More recently, some Maori, notably Tainui, have been looking proactively at how and where it could be placed.
That is high constitutionalism. At the smaller end, John Key has reaffirmed National’s wish to hold a referendum on MMP.
Most small parties would likely vote against legislation for a referendum, fearing a change that would make it harder for them to win seats. The two big parties, which would gain from less proportionality, could collude but that is not a given: one might demur to curry favour with small parties.
In any case there is no public groundswell for a voting change. There might be if (as is just conceivable) Helen Clark just stays on in office after the election even if she gets fewer votes than Key because Key can’t muster the votes in Parliament to throw her out. The royal commission which recommended MMP came after National stayed in government after the 1978 and 1981 elections even though Labour won more votes.
And MMP was voted in after Labour and National one-party governments after 1984 and after 1990 trashed popular expectations, in part based on pre-election promises. There was popular groundswell for reform.
That groundswell was democratic constitution-making. The constitution ideally belongs not to politicians, lawyers and academics (and journalists) but to the people. It is the people’s ultimate power the constitution regulates.
Politicians are deputed to operate the constitution and lawyers to monitor it. But without wide public ownership, it is reduced to a game for elites.
Those elites have modified many bits of it over the past 30 years, including, for example, the Official Information Act and the replacement of the Privy Council with the Supreme Court as the highest court. Only the voting system went to referendum.
Citizen’s-initiated referendums, one attempt to widen public influence on policy, have been routinely ignored. There is no sign yet of the “expert panel to review outstanding electoral issues”, a watered-down Green proposal to which the government agreed late last year at the passing of the Electoral Finance Act, a change at the edge of the constitution now the subject of bizarre advice from the Crown Law Office.
The government handpicked a “leadership forum” of business and lobby group chiefs to advise on aspects of the emissions trading legislation. But the forum’s short lifespan limited its value. It was a pale shadow of Scandinavian mechanisms to develop durable national consensus on big, hard issues.
So far there is no move to follow Canada and try citizens’ assemblies and citizens’ juries as ways of bringing popular wisdom, untrammelled by party lines, to bear on major issues.
Instead of this popular involvement, we have “consultation”. It has reached wider and deeper under Labour. But it is top-down not bottom-up.
Which brings us to Facebook. Or, rather, the phenomenon of internet-based networks.
This month’s Atlantic Monthly describes Barack Obama’s astonishing success at raising money. The Clintons had the regular big backers locked up. Obama’s money, huge quantities of it, came from mobilising vast numbers of small contributors.
It is about more than money. The model was the network-based way business is done in Silicon Valley. It links people through a social network hub into affinity groups with listservs for friends, news widgets, text messages, lists of phone numbers to ring and involve people, ideas for action.
It gives new meaning to “meeting” and “action” — modern and young. The Clintons had the household cavalry. Obama has a people’s army: by May 750,000 volunteers, 8000 affinity groups, 30,000 events.
There are visible beginnings here. Imagine if it catches on, if large numbers became linked into candidates, parties and political movements through social networks and became politically active in many and customised ways. That could remake the way our politics is done in unpredictable ways.
That would de facto change our constitution bottom-up, make it more one of people power and less a politician’s poodle.