'Considering' the constitution with the Maori party

As John Key, Bill English and a swag of ministers head to two days of Treaty of Waitangi commemorations on Thursday they take with them heavy baggage: the constitution.

In the heady post-election days of mid-November they agreed with the Maori party to establish “no later than early 2010” “a group to consider constitutional issues, including Maori representation”. The Maori party is to be consulted on the group’s membership and the choice of chair and is to be represented on the group.

The trigger for this section in the agreement was National’s express policy to abolish the Maori electorate seats in Parliament when the historical Treaty grievances are wrapped up, which ministers want done by 2014.

The Maori party, which is in Parliament only because it holds Maori electorate seats, made non-abolition a bottom line. Its agreement with National binds National not to “seek to remove those seats without the consent of the Maori people”.

In fact, National and ACT have enough votes in Parliament to remove the Maori electorates right now.

It happens to be convenient not to. National sees in its association with the Maori party an opening to brown its image — as it needs to if it is to command parliamentary majorities over the longer term.

But there is another dimension. The Maori party does not just want non-abolition of the electorate seats. It wants them entrenched.

Entrenchment sounds impressive: fixing the seats so firmly in the constitutional ground that raiders cannot remove them. Actually, entrenchment is more a moral than a constitutional rampart. Entrenching a provision of the Electoral Act is by a simple parliamentary majority. Another simple parliamentary majority can remove the entrenchment.

Nevertheless, moral force can sometimes develop into political force. To avert that, National wrote explicitly into the agreement that entrenchment is off the agenda this term.

But that says nothing about post-2011. A Labour-Green-Maori deal could put entrenchment on the agenda then. Also note that, because the Maori electorate seats can produce overhangs (there are two now), the Maori party can deliver a bonus in seats to the major party it supports. Then note that far more Maori party electorate voters in 2005 and 2008 gave their party vote to Labour than to National, which is a message of sorts to the Maori party MPs.

So National had an incentive to offer an alternative to entrenchment. Hence the constitutional group.

The wording is carefully vague: “consider” commits National to nothing and especially not to abolishing the monarchy — nor even to “consider” abolition. While the mood in the National party at large is changing as the generations roll over, there remain many traditionalists who would be scandalised by republicanism in party ranks.

Until recently many Maori were also wary of republicanism. In their eyes, the fact that iwi and hapu signed the Treaty with the “Crown” lent a mystical importance to an impotent monarch.

Now an emerging realism among Maori recognises that, like entrenchment, the Treaty has moral force, not immutable legal force. The only reason the Treaty has legal force is that Parliament has put it into some legislation and the courts have issued rulings based on that legislation and on the greater respect for Maori and indigenous rights implicit in those legislative initiatives.

But a simple majority in Parliament could undo that. One isn’t likely in the near future but both ACT and the now departed New Zealand First have written bills this decade to expunge the Treaty from legislation.

So Maori thinkers want the Treaty better protected. One way would be to incorporate it in some way in a written constitution which would be superior law, not amendable by a simple parliamentary majority.

The Maori party’s election policy sought “a constitutional commission to begin a constitutional review aimed at, among other things, drafting arrangements that give effect to the Treaty of Waitangi”.

The National-Maori party agreement’s “group” is not a “commission” and “consider” is not a “review”. Giving effect to the Treaty is not part of the “group’s” specified agenda. That is not surprising since there is no simple formula for embedding the Treaty in the constitution. Constitutional experts and Maori differ widely on options and on do-ability.

Still, the terms of reference have yet to be written. And National will have to weigh up the discomfort many of its members feel with the Treaty against the prospect of Labour pitching for the Maori party next election with a promise of a more far-reaching constitutional agenda. Labour grows more republican with its transit of generations and younger Labourites are more comfortable with Treaty rights than Nationalists.

A Labour-Maori party deal in 2011 would spell defeat for National’s browning strategy.

So watch what Key and Co make of Waitangi Day this week and next year and the year after that. The constitution is up for debate.