CONSTITUTIONAL RACISM IN NEW ZEALAND

Constitutional racism

Constitutional racism offers an analysis of racism which sits beyond structural or institutional racism, and which sheets racism home to a much more specific legal location against which some forms of action are available.

Constitutional racism is characterised by racism that has a constitutional form, foundation or basis, or where there is causal or factual link between expressions of racism and the constitution, as there is in New Zealand. New Zealand's constitutional arrangements provide an excellent example of constitutional racism revealed through a series of key observations and facts.

A series of massive and deep insights into our constitution to set the scene

The dominant western legal view of New Zealand's constitution is that it is an unwritten constitution, with many parts. Among those parts there are certain core elements. Some are Acts of Parliament like the Constitution Act (1986), the Bill of Rights Act (1990), and the Public Finance Act (1989). The dates of these acts are important: they set the ground work for a neo-liberal future in which government expects itself to constantly reduce in size, and in which social rights and outcomes are a distant last on the investment priority list. That these are today considered part of our constitution shows a degree of success achieved by the dominant western hegemony which goes generally unnoticed.

Other elements of our constitution include conventions and the cabinet manual. Conventions are made up rules of operation for government and cabinet which appear at first blanch to have contributed massively to the marginalisation of Māori during the entire existence of white government in Aotearoa, and to the contemporary protection of cabinet's control over Parliament (the corruption of cabinet's authority through capture by political parties is turned to later).

The cabinet manual is the rule book for cabinet and the teaching resource for Prime Ministers:

"The Cabinet Manual is an authoritative guide to central government decision making for Ministers, their offices, and those working within government. It is also a primary source of information on New Zealand's constitutional arrangements..."

The cabinet manual goes on to equivocate repeatedly on the position of te Tiriti o Waitangi in the constitution. It says the constitution 'increasingly reflects the fact that the Treaty of Waitangi?is regarded as a founding document of government in New Zealand'. Firstly, there is an absolute failure of culture and imagination in the authors not being able to refer to this constitutional document and moment as te Tiriti o Waitangi. This problem is real, as are the authors' reasons for not naming this document te Tiriti o Waitangi. Te Tiriti o Waitangi has come to refer exclusively to the te Reo Māori text. In that text there is no equivocation, nor is there a ceding of sovereignty, and nor is there a contest of meaning. White authority in Aotearoa relies heavily on the contested meaning and the contested nature of te Tiriti, and contest as to the intentions and aspirations of the signatories. These contested spaces are the tools that hold the power of te Tiriti at bay.

Secondly, the cabinet manual defines a level of significance on a sliding scale, and recognises te Tiriti as a 'founding' document, not as a 'constitutional' document. Beware the western legal care taken in this drafting. Note also that other sources of the constitution are not dressed in terms of equivocation.

In terms of analysing the cabinet manual from a constitutional racism perspective, it is enough to note the word 'Māori' only appears within a virtually buried section about te Tiriti as one of the 'other sources of the constitution'. Again, don't be fooled. Whereas as other 'other' sources are described as being a source of the constitution with certainty, this section only implies that te Tiriti is among them through language and phrasing otherwise littered with equivocation on the point. One could take-off on an interpretive adventure on this point to argue that because this section on te Tiriti is included beneath a heading which is itself clear, te Tiriti's position in the constitution must therefore itself be clear. But this constructive interpretation is quickly and fully dismantled by a proper reading of the text itself.

In short the cabinet manual itself presents the voice of constitutional racism. It carefully skirts the edges of the line between saying te Tiriti is part of the constitution, and holding it at arms' length. The tools used to both march up to and to skirt this line are careful drafting and inference, as well as a bold and yet fully accepted reliance on how the public imagination will consume and interpret the text - the goal being that New Zealanders will feel te Tiriti is included in the text, without adding any additional legal force to te Tiriti's already magnificent longevity and power in opposition to assumed sovereignty.

And yet, read objectively the cabinet manual definitively leans toward holding te Tiriti at arms' length. In doing so, the cabinet manual expresses entirely the discomfort of the dominant legal paradigm with any real, true, meaningful recognition of te Tiriti as something more than a subject of contest, or settlement, and of political manoeuvring.

Our constitution underpins modern expressions of racism in public sphere

The formative observation for this paper is that equivocation about te Tiriti o Waitangi expressed in our constitutional arrangements is causally linked to common public forms of racism seen and experienced through politicians and other public figures expressing the same equivocation in regard to te Tiriti and its modern forms and functions. As they do so, they rely on a second tier of constitutional racism: its failure to adequately or effectively protect New Zealanders from discrimination, including racism in the public sphere.

The constitutional equivocation on the place and significance of te Tiriti enables modern racism which targets the obvious confluence between te Tiriti and Māori experiences, interests, and aspirations. The constitution's equivocation is actively mirrored by dominant white public voices to contest New Zealand's history and the validity of te Tiriti in modern political imaginations. These expressions are expressions of racism against Māori.

In New Zealand's unique case, there is actually a causal link between our constitution arrangements and modern racism formed around te Tiriti and aimed at Māori.

If our constitutional arrangements provided for a clear and constitutional place for te Tiriti modern racist political discourse targeting and undermining te Tiriti and its modern expressions would then run contrary to our constitution. They would be revealed as and become self-evidently flawed. More important than those approaches being shown to be flawed however, they would also be rendered pointless and meaningless and therefore stop happening: a common form of racism would stop. If our constitutional arrangements provided for a clear and constitutional place for te Tiriti the burden of proof and onus would be placed on those racist voices to deconstruct our constitutional position in order to suggest outcomes deriving from te Tiriti were in any way unfair or unreasonable, or even unconstitutional. That this is not the case in turn reveals a constitutional positioning in support of that racism as a position not defined by anger, hate, or aggression, but by equivocation and ambivalence. It's a classic kiwi slow-burn racism - not (generally) characterised by brawling on the streets or overt policy violence, but by white men in suits telling others that te Tiriti and Māori interests run counter to their cloistered view of the world in which ethnicity and race plays a very real part.

Four initial observations and descriptions of constitutional racism

• The failure of our constitution to inherently protect against racism is constitutional racism
• The failure of our constitution to limit parliamentary sovereignty in the constitutional protection of core rights such as the right to be free from discrimination, is a form of constitutional racism
• The failure of our constitutional arrangements to recognise Māori as tangata whenua or as parties to te Tiriti is constitutional racism
• The failure of our constitutional arrangements to properly and adequately recognise te Tiriti o Waitangi and its constitutional position is constitutional racism

Analysis

Firstly, our constitutional fails to provide any robust protection against racism. Constitutions generally have the ability to create, recognise and protect the rights of citizens, and our constitution is weak in regard to protecting New Zealanders from racism. This is asserted as a form of constitutional racism, especially in light of the western legal traditions and dominance that construct both our unwritten constitution and the ways in which rights are otherwise protected or not, or the degree of protection of rights, often in an ad hoc or right-by-right way. Privacy for example is protected robustly through specific operative legislation. The right to be free from discrimination is the closest we have to a protection against racism, and it is neither broadly nor deeply protected against.

The right to be free from discrimination cannot be regarded as a constitutional right in New Zealand. Though some will argue the Bill of Rights is a constitutional Act of Parliament this itself represents an assertion of a non-constitutional form of protection which resides with Parliament, not within a meaningful, rights defining and protecting constitution. At any rate this form of protection is incredibly weak and tends thematically to disable action by placing the burden of evidence and onus of proof onto those facing discrimination, when at the same time freedom of speech provisions generically protect those willing to defend any inherently racist comments as statements of opinion.

Secondly, our constitution provides for what is essentially an extreme and in practical terms unlimited form of parliamentary sovereignty, within which Parliament holds the broadest possible decision making power on the rights of citizens to be protected. While it has been argued that te Tiriti for example, provides a limit on Parliament decision making any such limit is itself weak, and entirely subject to political tides.

This is a form of constitutional racism - our constitution enables racism by failing to define our rights especially in regard to the political mass or majority expressed in Parliament. This observation begins to reveal a hegemonic western legal dominance which has over time disabled protective mechanisms and promoted mechanisms that protect, enshrine, and promote hegemonic western legal dominance. This includes promoting the widely accepted and normalised Parliamentary freedom to define the rights to be protected deploying its uniquely and problematically majoritarian lens, without constitutional oversight.

Thirdly, constitutional racism resides in the way our constitutional arrangements 'view' Maori. Maori do not exist in our constitutional arrangements, and no other constitutional imaginary or mindset other than a white and western and dominance has been used to construct and (attempt to) legitimate our constitutional arrangements. This is a racist imbalance of power and hegemony sitting in plain view. It is structural and institutional racism, but revealed as constitutional racism provides both more clarity about the actors and location, and more clarity about the remedy.

Fourthly, constitutional racism resides in the way our constitutional arrangements reflect te Tiriti o Waitangi. Our constitutional arrangements equivocate about te Tiriti o Waitangi which ironically (but also violently and unjustly) turns the table on the natural idea and familiar imaginary that te Tiriti is in fact constitutional. The failure of our constitutional arrangements to properly and adequately recognise te Tiriti o Waitangi and its constitutional position is constitutional racism and reflects the constitutional racism inherent in the general assumption of Crown authority and pre-eminence and the specific assumption of (a structurally deficient and almost indefensible) sovereignty in Aotearoa.

There is a potentially long list here. To be continued...

A couple of framing questions

Two questions are useful to consider in this context:

1. In the 19th century, would white public lawyers have felt more comfortable addressing what was by then a skeleton in the constitutional law cupboard and talking about te Tiriti in the context of developing a constitution, or leaving it neatly tucked away? Our unwritten constitution developed out of a constitutional vacuum defined by the Crown's refusal to acknowledge its own promises of a constitutional nature - they were constitutional because they talked about rights and powers and citizens, and also because the moments in time were formative... constitutional. Māori recognised and adhered to their constitutional promises except perhaps where armed conflict forced their hand. To write a constitution would have meant writing over the hidden past - writing a new start at an odd time, while either destroying or revealing the original acts of constitution; writing te Tiriti into a constitution would have meant contravening the existing legal and political order (and it can be imagined would have been impossible); deciding we had - like Britain - an unwritten constitution - was easy and expedient and decision making at any rate sat with those unlikely to have any desire to unmake the emerging structure.
2. If constitutions are about setting out and protecting rights between citizens and states, in a way that protects those rights against time and against political interference, how could any constitutional arrangement allow and enable a force as awful and disgraceful as colonisation to cause the harm it has? If our unwritten constitution goes back that far, then it is burdened with responsibility for these failings. How can a constitution take responsibility for past wrongs and deficiencies? There is only one way: deep, considered review on the basis of the themes and knowledge we are equipped with today: the tools to identify and combat racism on all levels, the tools to dismantle hegemony, and widespread recognition that change rather than stasis must be the rule.

Beyond structural or institutional racism

Constitutional racism takes us beyond critique which finds fault with the constitution or which stops at the point where we assert a problem as constitutional at its core, and step away, uncertain about what to do. An anti-racism analysis tells us that every source of our constitution must be reviewed for racism; that the process of enshrining or producing each source must be investigated for racism. It tells us the onus is not just on the marginalised voice, or the victim of the racism.

It tells us that anyone unwilling to admit the racism in our constitution will be acting to uphold it and to hold the racism in place. At this moment, the onus shifts onto them to show they are not doing so, and that what is identified as racism is in fact fair, safe and just.