The Canterbury Earthquake Response and Recovery Act

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17 September 2010

On the evening of Tuesday September 14 the New Zealand Parliament voted unanimously in favour of a bill (The Canterbury Earthquake Response and Recovery Bill) which gave the executive the right to suspend all New Zealand law with the exception of the Bill of Rights and the Electoral Act.   The purported justification was to provide the means to promote reconstruction in the province of Canterbury which had been struck by a major earthquake on the morning of Saturday September 4, causing much damage to property and infrastructure, but no loss of life and few injuries.   During this experience order has been maintained, and the immediate needs of the public have been met through a variety of institutions.    So why did the government feel it necessary to acquire the power to suspend the rule of law in this situation, and why did the parliament comply?

The first question remains a puzzle.  It could be that the situation is more serious than we have been led to believe.   There is no doubt that the longterm consequences may be quite serious.   There may be major demographic changes,  failure of regional agricultural systems and loss of industrial production over many years.  But these are long term effects.   They do not require suspension of the rule of law.   In fact they can only be properly dealt with within a legal framework.   New Zealand society is robust enough to handle these challenges, although the New Zealand economy may not be.   The failure of South Canterbury Finance Company just a few weeks previously will have unsettled the financial system.   The Canterbury earthquake is a second hammer blow.  It is not impossible that the New Zealand financial system could collapse under the strain.   But if government suspects this may be the case, the proper action would be to candidly inform the public of the gravity of the situation, relying on the good sense and good will of the populace to find solutions, rather than to suspend the rule of law.

It is hard to say why the parliament voted to abdicate its constitutional rights and responsibilities.   It was an extraordinary action, unprecedented in democratic societies in times of peace or war, economic boom or depression, famine or pestilence.   The British parliament went through the blitz without giving extraordinary powers to Prime Minister Winston Churchill.   Yet in the aftermath of the Canterbury earthquake the New Zealand parliament has given Prime Minister John Key and Governor-General Anand Satyanand the power to abrogate virtually every law on the New Zealand statute books.    A legislature which surrenders its constitutional rights and responsibilities at the whim of the executive cannot be trusted to defend the rights of the people.   The New Zealand parliament has failed as a democratic institution..

Some people are surprised that the parliamentary vote in favour of the Canterbury Earthquake Response and Recovery Act was unanimous. Yet we have seen already every New Zealand parliamentarian compelled to pledge allegiance to the hereditary monarch of a foreign power, and we have seen every one single one submit, albeit reluctantly in many cases.    Parliamentarians themselves have brought into question their loyalty to the nation and to democratic principle.

The Green Party is the one party in the New Zealand parliament which might have been expected to stand up to the totalitarian ambitions of the executive.   Yet the Green Party also voted in favour of the Act.   In an attempt to justify his decision, the Green Party leader, Russel Norman, kicked off an on-line debate early Wednesday morning on the party website,  ("frogblog").   Green Party supporters who responded were overwhelming critical of Norman's apology.    It is normal practice for Green parliamentarians to issue statements through frogblog, and then to hold aloof from any ensuing on-line squabbles.   But on this occasion MPs Russel Norman and Kevin Hague felt compelled to respond to the barrage of criticism.   Essentially they argued that if they had not voted for the Act, then their action would have been misrepresented in ways which would have been politically damaging to them.  But that is the nature of politics.  Rival parties and hostile media organisations are always going to attack your decisions. You donít run away. You stand your ground.  Or you get out of politics.  You don't simply surrender to your opponents demands that you provide them with an instrument for totalitarian rule.

Norman, Hague and the party officials also tried to argue that their vote in favour of the bill did not matter, because the bill would have passed in any case.   "It would have happened anyway" is not a moral argument.   The Jewish holocaust and the Rwandan genocide might have "happened anyway" even if certain individuals in positions of influence had not encouraged or supported them.   That is not the point.   The point is that every individual has a duty to do the right thing, to make a moral judgement and to act upon it - not to do the wrong thing just because everyone else has.   One came up with the argument that they could not be expected to "die in a ditch" for the rights of parliament.   Quite so.   Because self-sacrifice in a noble cause is venerated, it is not to be expected.   But were any members of the New Zealand House of Representatives really at risk of being left to "die in a ditch"?   Were they threatened with any grievous consequences if they did not vote in support of this egregrious coup from above?   If threats were made, or inducements offered,  the happenings of Tuesday night are even more shameful to contemplate.

With the tide of opinion running strongly against the party caucus, the Green parliamentarians withdrew from the fray on frogblog, leaving a former US Marine, known as "BJ Chip", to champion their cause.   Chip is the leading apologist for the pragmatic camp within the Green Party.   But his arguments, however strongly pressed, are fundamentally flawed.    Chip argues in favour of the oath of allegiance to the British monarchy on the grounds that it is merely symbolic, and that the political consequences of not giving the oath (expulsion form parliament) outweigh the principled arguments against the oath.  He runs the same argument in favour of the vote for totalitarian government.   First, that voting against the Act would result in the Green Party being thrown out of parliament.   Second, that the vote in favour is merely "symbolic" and will have no practical consequences.   On the matter of the oath of allegiance to the crown, it is arguable that most Green Party supporters would have agreed with Chip.   But when he employs the same arguments to defend a parliamentary vote for totalitarian government, the rank and file of the Green Party  clearly feel that he is going too far.   In both controversies, Chip is effectively arguing against the need for personal integrity.  Integrity means that beliefs, statements, and actions should all be consistent with each other.   Chip argues that a politician can believe in democracy, while making a formal statement of allegiance to a hereditary monarch, and casting a formal vote in favour of totalitarian rule.   He believes that a democratic politician may usefully engage in "symbolic" actions such as swearing allegiance to a hereditary monarch or voting for totalitarian rule, while still remaining true to his or her democratic ideals.   It seems improbable, but that is not the point.   The point is that a nation should be ruled by men and women of integrity.   Men and women whose beliefs, statements, and actions are wholy consistent.    The Green MPs argue that their vote in favour of the bill made no difference to the outcome, and that the way they voted in this instance was of no great moment..  Yet in the final analysis voting is the whole purpose of parliamentarians' existence.   It is the way they make law.  It is the unique means by which they can "make a difference".    They need to do so with integrity.

The practical consequences of the CERRA cannot be known in advance.   We will just have to watch as events unfold.   Much depends on the personalities involved - principally Prime Minister John Key, Minister Gerry Brownlee, and Governor-General Anand Satyanand.    Their supporters argue that these are decent people who will not abuse those powers,  and that in any case the traditional ethos of New Zealand politics is not conducive to totalitarian rule.   However the danger remains present.   All politicians covet power.   New Zealand politicians are no exception to the rule.   They also know that the robust exercise of power can be helpful to their political reputations, not least at times of perceived crisis.   Like a kid behind the wheel of a V8, the New Zealand government will be tempted to demonstrate that it can employ great power to great effect.   Governor-General Anand Satyanand would be helpless to resist even if he felt the urge.   He has no public following, and he is bound by convention to accede to the will of the government.  He has not resisted to this point, and presumably will not in any circumstances.   But any practical consequences of the Act should not form the basis of our judgement.   This is an Act that cries out to be judged on principle, and on principle must be found seriously wanting.

An editorial in the "New Zealand Herald" put the constitutional case against Canterbury Earthquake Reponse and Recovery Act.   Putting the case is all the media needs to do if it is to come out of this shameful episode smelling of roses.     The parliamentarians on the other hand, will forever struggle to live down the vote in which they abdicated their right to legislate in favour of executive autocracy.  It is sometimes supposed that parliamentarians are the "voice of the people" or that they "speak for the people".  In actuality the people speak for themselves.  They do say every day, in their places of work, in their homes, on the marae, at hui and social gatherings of all kinds.   What the people cannot do is vote in the House of Representatives.  They rely on parliamentarians to do that for them.  So one cannot say in any circumstances at all that "it does not matter" how the representative votes.  Representatives are sent to parliament to vote.  How they vote is the one thing above all else that does matter to their constituents.  They go to parliament carrying an expectation that they will vote in certain ways which reflect the interests and beliefs of their constituents.  It follows that when a representative casts a vote against the interests and beliefs of his constituency on the express grounds that it will improve the representative's own chances of re-election, then the constituents have not only been betrayed: they have been insulted.   That is why Green voters have reacted with fury and dismay to the decision of the parliamentary Green Party.

At the same time, the Green parliamentarians are not entirely wrong.  It matters for them how they vote.   It matters for their integrity.   It matters for the standing and reputation of the parliamentary system.   But it doesn't much matter for the destiny of the nation.  If the elected members of parliament abdicate the rights and responsibilities of governance, parliament will become irrelevant, and people will find more direct ways to protect their rights and their quality of life.   Eventually they will take  back into their own hands the powers which parliament has surrendered to a power-hungry autocracy.

 The case against pragmatism - click here to read