No democracy on the honour system

This morning I posited a conspiracy theory that the government would use the temporary deregulation measures undertaken in response to the Canterbury earthquake to progress another tranche of wide-ranging reforms to the resource management regime and building and construction industries after the 2011 election.

Absurdly, if the Canterbury Earthquake Response and Recovery Bill is passed without very extensive amendments of the sort proposed by the Greens and voted down by both major parties (it’s going through all three stages right now), then all that and much, much more could happen this week, no election required, and without any review by the courts. The executive powers granted to the relevant Minister (that’s Gerry Brownlee) in this bill are so sweeping as to permit him to do almost literally anything as long as it has something to do with quake recovery — amend or suspend almost any piece of legislation, overturn any electoral decision — really, Dean Knight, Graeme Edgeler and Andrew Geddis (themselves no wide-eyed conspiracy nuts) are just three of the constitutional law experts who are boggling at the possibilities; Idiot/Savant is also much more than usually incandescent, and Gordon Campbell pulls few punches, either. Geddis says the law gives him “a case of the screaming collywobbles”. How’s that for a technical term. Their argument — contra government speakers such as Nick Smith — is that, because there is no real oversight to test whether actions taken are “reasonably necessary or expedient for the purpose of the Act”, the bill’s scope is not strictly limited in black-letter law to those matters, nor indeed to the region impacted by the quake, and the minister and his commission basically enjoy immunity. These are sweeping powers such as those which might be accorded an executive head of state in a command-government situation such as a major war.

Not would happen, mind. I don’t think anyone genuinely thinks Gerry Brownlee will decriminalise murder, approve mining across all schedule 4 land, enact wartime conscription or overrule the results of the forthcoming Supercity election. I don’t. But the point is (assuming Dean Knight knows what he’s talking about) that Brownlee can. Or will be able to tomorrow, until April 2012, which astute readers will note is a good half-year after the next general election must be held. There are no real checks or balances, much of the actions taken under this legislation are able to be taken in secret, and actions taken will not — at least on paper — be subject to judicial review. This means that we are relying on Gerry Brownlee to not be evil. But democracy doesn’t work on the honour system. It can’t. It doesn’t work on the basis that you give a government power in the hope that they use it legitimately; you give it power on the basis that you have the authority and ability to wrest it back from them if they misuse it, and on the assumption they will misuse it. The honour system is fine for bouquets being sold at the cemetery gates. It’s no basis upon which to run a country.

As I’ve often argued here and elsewhere, what sets liberal democracy, with all its failings, apart from authoritarian systems is the ability for the electorate to transfer power by the exercise of these sorts of checks and balances. Under orthodox authoritarian socialism for examplem — more or less the only form of socialism ever fully implemented on a nationwide scale, in the USSR and China, for instance — the transitional dictatorship is empowered with the sole authority and means to put down any such counter-revolution as might endanger the transition to genuine communism; and because of this, the dictatorship enjoys impunity. It has no reason to work in the interests of the people it purports to serve, inevitably becoming inefficient, corrupt and brutal. (Thus, the problem with socialism is authoritariansm which accompanies it, not so much the economic aspects, but that isn’t my point here).

The Canterbury Earthquake Response and Recovery Bill, of all the ridiculous things, brings into being the potential for just such a regime in New Zealand, and we can only hope it is not used to that effect. It is a colossal, hypervigilant overreach. And if any ill comes from this, Labour — and even the Greens and the māori party — will bear as much responsibility as National; they are all supporting it out of “unity”.

Where now are those who railed against the Electoral Finance Act, who speculated darkly that Helen Clark might not relinquish power after the election, or might suspend the operation of the free press; who shrieked about the Section 59 repeal; against ‘Nanny State’ and the illusory Stalinism of lightbulbs and shower heads, drink-drive limits and alcohol purchase ages and compulsory student union membership? Here the papers are being signed to dismantle robust constitutional democracy right under our very noses, and there’s barely a whimper.

(Updated to add Lyndon Hood’s fantastic image of Brownlee VIII, link to Campbell’s article, and tidy the post up a bit.)


20 thoughts on “No democracy on the honour system

  1. Well Canterbury already has Cabinet rule as well as Cabinet self-interest intertwined. I maintain that we are now back in the late 1800s with a new squattocracy taking what it wants. You wont get a stop to it until you get a new Red Fed. Then we have the problem of avoiding a revival of the Labour Party to keep our noses in the legislative trough.

  2. One of the tried and true methods of “hardening” a democracy on the road to authoritarianism is to exploit a crisis (whatever its nature) to impose rule by executive decree. Urgency is always the justification for rule-by-decree, since it is alleged that normal deliberative channels are too slow and cumbersome to deal with crises.

    What has happened here is an interesting variation on this theme, in which parliament authorises the imposition of extraordinary executive powers as well as approve the relaxation of the regulatory environment (as per your previous post) in which these executive (cabinet) powers are employed.

    That there was no significant parliamentary opposition to this variant of rule-by-decree is evidence of the ingrained elitism and authoritarian mindset of the NZ political elite, to include the Left.

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  5. In response to your last paragraph – we’re just starting to notice what’s been passed. The rhetoric sounded good – getting regs out of the way to facilitate rebuilding – and the actual bill wasn’t disclosed ’till yesterday afternoon.

    I still think of Jar Jar passing Emergency Powers in the Galactic Senate….

  6. It’s to your credit, Eric. But it was never you and not-really-partisan folks like you to whom I was referring — it was the Farrars and Whale Oils and the Perigos and the denizens of No Minister and other such authoritarian/liberthoritarian types. From whom I have, so far, seen but one very lukewarm concern raised.


  7. Toad, go away with your distasteful Nazi comparisons. They leave a bitter taste when the nutty right are using them, and they’re no better when coming from your mouth.

    And what’s more, your party voted this into law, despite all but one of your amendments being struck down. What a shameful decision.

  8. Lew. I am very definitely one of those you are referring to. I would have been screaming blue murder if labour had tried this.
    You are right. This is several steps too far. My first thought was. It is not as if they are suspending democracy. Oh wait they already have. As it happens I am attending a meeting lead by Wayne Mapp this evening. I will let him know my feelings.

  9. I was against Labour’s electoral reform and I am against this. As I posted on Kiwiblog this is a reversal of the historical trend established by Magna Carta.
    Although I must say that some where the ghost of Charles 1 will be wishing he had thought of this instead of that damned stupid ship money tax.

  10. Brownlee can’t do anything after the General Election, unless National remain in government. It’s the Governor General acting on advice who has the power, and after the General Election the advisor might change. In fact, that National are willing to possibly give, say, Brendon Burns, or Lianne Dalziel, or Ruth Dyson this kind of power is one of the few reassuring things about this Act.

  11. Phil and Stuart, it’s heartening to know that some things are still beyond partisanship. PC has also been obliquely critical of the move, Richard McGrath rather less obliquely so, and Peter McCaffrey was apparently tuned into the debate and freaking out with the rest of us on Twitter last night. It’s to all those peoples’ credit.

    Keir, in my more cynical moments all that says to me is that if Brownlee feels an urge to stretch his legs, he’ll wait until after the election to do so.


  12. But democracy doesn’t work on the honour system. It can’t. It doesn’t work on the basis that you give a government power in the hope that they use it legitimately; you give it power on the basis that you have the authority and ability to wrest it back from them if they misuse it, and on the assumption they will misuse it.

    The problem I have is this.

    We’ve been paying politicians to enact laws for over a century, and we have had several natural disasters, wars, depressions, etc along the way. We assume that each iteration of legislation improves specificity and efficiency – but apparently not.

    Why are those expensive laws now apparently so bad that we have to completely circumvent them?. Can’t we just throw a few more resources at the processes – surely other councils/agencies could transfer skilled people for a few months – or even use the Internet more without transferring staff..

    Either the laws fulfill an essential need, or they don’t. If the latter, the laws should be tossed out permanently.

  13. The only reason Not PC is ambivalent, and I share this feeling, is that it represents a genuine bonfire of the regulations. Where I differ is the extension of that thought process.

    If the only way to get Canterbury growing rapidly is to repeal all the stultifying regulations then why stop at Canterbury. Why not apply that to the whole country and why only let the bureaucracy off the hook rather than the private citizen?

    But those regulations are what stopped the Christchurch quake from being as damaging as the Haiti quake and that is generally accepted.

    The conclusion I draw is that this is knee jerk or there is an ulterior motive as you suggest in your original post.

    One of the lessons of the war on terror worth learning is that we need to be very careful about government manipulation of a crisis to extend their powers out of proportion to the crisis itself.

  14. Pingback: Canterbury Earthquake Response and Recovery Act | [ meme - hazard ]

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  16. the title is very true. that’s why a constitution is necessary, and it should start: “we, the citizens of kiwiland declare to the world that in assembly we are masters of our nation, all action and policy can take effect only with our express consent.”

    you can take it from there, i hope…

  17. Representative democracy is not a democracy, I hope that much is clear. Democracy can only be implemented via referendum, where citizens make decisions themselves. Problem is wider than discussed in this post, since representative democracy itself is based on a honour system, in which it is expeced that politicians will be honorable enough to hold the promises as much as possible – but they never are. Hence, representative democracy is a form of dictatorship.

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