We, the People(s): Participation in Governance

We, the People(s): Participation in Governance

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"We the people", the opening phrase of the preamble of the United States Constitution, reflects what was then a revolutionary concept – that power comes from the people. It is participation by the people(s) that justifies, at least partially, the continuing exercise of governmental authority over them.

New Zealand's system of government is ideal for examining the participation of the people(s) in governance due to its Westminster origins, small size, accessibility of government, absence of an upper house, MMP electoral system, busy legislative programme and active select committees. The insights gleaned from this book are also readily applicable elsewhere.

One of the underlying themes of We, the People(s) - and the reason for the 's' in the title – is the participation of sub-state groups as collectives in governance, such as indigenous peoples and other non-dominant groups.

We, the People(s) canvasses a variety of important issues relating to the place of the people(s) in governance. Contributors include: Jonathan Boston, Peter Cane, David Caygill, Claire Charters, Richard Ekins, Amokura Kawharu, Dean R Knight, Karen Knop, Elisabeth McDonald, Matthew SR Palmer, Sir Anand Satyanand, Jeremy Waldron and Margaret Wilson.

Contributors:

Rt Hon Sir Anand Satyanand, Richard Ekins, Matthew Palmer, Karen Knop, Amokura Kawharu, Claire Charters, Margaret Wilson, Jonathan Boston, Jeremy Waldron, Elisabeth McDonald, Peter Cane, David Caygill, Dean Knight

From: We, the People(s): Participation in Governance, edited by Claire Charters and Dean R. Knight

Foreword

Claire Charters* and Dean R Knight

The participation and engagement of the people(s) in governance is a foundational jurisprudential issue because it is the participation by the people(s) that justifies, at least partially, the continuing exercise of authority over them by democratic governments. This book presents a number of different perspectives focused on the role the people (or peoples) play – or should play – in governance under domestic constitutions and administrative structures.

The chapters in this book were delivered as papers at a conference entitled “We, the People(s): Engagement and Participation in Government”. The conference was organised by Victoria University of Wellington’s New Zealand Centre for Public Law and held in the old Legislative Council Chamber at Parliament Buildings in February 2010.

The book places a particular emphasis on New Zealand’s specific form of Westminster system of government. It spans all levels of the governmental hierarchy: from local government, to national and parliamentary government, to international law-making and adjudication. The contributors consider the role of the people or peoples across this wide plane of governance, both from a theoretical and a practical perspective.

While the New Zealand focus of some of the chapters is inward-looking, the lessons to be drawn are not. New Zealand is an ideal jurisdiction in which to examine the participation of the people(s) in governance from a Westminster-style constitutional structure because it remains, perhaps even to a greater extent than the United Kingdom, structurally and constitutionally consistent with historical Westminster governance design. In addition, the small size of the New Zealand polity and the relative ease with which the people(s) can access those with governmental power make it an enlightening venue from which to assess participation in governance. New Zealand’s ground-breaking experiment with a “soft-form” bill of rights is a testament to that and led the way to similar approaches in the United Kingdom and Australia. Other unique and exceptional aspects of New Zealand’s governmental and institutional structure also make it comparatively instructive, such as there being no upper house, the fact that Mäori seats are guaranteed in Parliament, the presence of a mixed-member-proportional (MMP) electoral system, the existence of a reasonably robust select committee process and the relatively fast passage of much legislation. The insights gleaned in the book are readily applicable elsewhere, especially to other Anglo–Commonwealth jurisdictions with a common heritage and also to countries like the United States that share similar democratic and electoral processes, although within a very different governmental structure.

An underlying theme in a number of the chapters presented here is the participation of sub-state groups in governance. Reflected in the inclusion of the “s” at the end of “people” in the title, this draws particular attention to participation and engagement in governance of collectives as collectives, rather than as amalgamations of individuals with equal voting rights. Basic democratic theory is often blind to the existence of sub-state groups, prioritising, as it does, the individual. While this is a subject of increasing theoretical analysis, particularly in North American-based scholarship, it is less frequently applied or discussed in the context of Westminster-related constitutions. Nonetheless, the participation of collectives in governance is especially important in states where, as in New Zealand, indigenous peoples’ consent to non-indigenous authority was questionable at crucial constitutive moments in the state-building process. Moreover, in states such as Australia, Canada, New Zealand and the United Kingdom, where multicultural ideals are hotly contested – including from the aboriginal populations to the Scots, the Irish and the Welsh – provision is often made for independent sub-state collective voice in governance.

The order of chapters in the book reflects their order of delivery at the original conference. The agenda tracks some broad paths: from the theoretical to the practical, from the international to the national, from the national to the local, from those with power and authority to those in non-dominant groups or outside of the power spectrum. But these distinctions in perspective are somewhat loose and quickly dissolve as the central question of participation in governance is brought into focus.

The Governor-General of New Zealand, Rt Hon Sir Anand Satyanand, opened the conference and his comments are included, almost verbatim, here. In his speech, the Governor-General notes the many different ways in which the term “the people” is deployed in common parlance; then, drawing on his own professional career, he offers some substantive comments about the conference themes. He notes, for example, the omission of “the people” in formal constitutional documents, such as the Constitution Act 1986, despite the central role that the people play in New Zealand’s governance. He also highlights the ways in which the people participate in various parts of the governance system such as by virtue of jury trials and via complaints to the Ombudsman. Finally, he stresses the need for the people to remain involved in government into the future.

In his chapter, Richard Ekins examines the value of representative democracy as an alternative to direct democracy. He argues that representatives should base their decisions on their own judgement rather than on an assessment of what the people want. He concludes for several related and complex reasons that legitimate government is required to attain the common good rather than to reflect the will of the people (where the two goals collide). He claims that representative democratic processes are better able to achieve that result when compared to direct-democratic processes. He questions the ability of the popular preferences to achieve reasonable law-making, and suggests that direct democracy is not necessarily democratic and that the electorate does not have the capacity to legislate. It is for this reason that he concludes that the general use of referenda is not ideal. Ekins finishes his chapter with a robust defence of representative democracy.

Matthew Palmer takes a realist approach to considering the role of the people(s) in New Zealand’s constitution, highlighting the different languages spoken by the branches of government in constitutional dialogue and reflected in the tenants of New Zealand’s constitutional culture and norms. On that basis, Palmer then analyses ways in which the people participate in New Zealand’s government, suggesting that the people “constitute the context for constitutional dialogue between the branches of government”, and that they have an especially powerful role given New Zealand’s constitutional norm and culture of representative democracy. He cautions, however, that the constitutional norm of the rule of law and judicial independence may be vulnerable unless it is valued by the people.

The use of international human rights law by government actors inside a State is examined by Karen Knop. Using the United States as the basis of her study, she draws on the examples of San Francisco’s use of the principles of the International Convention on the Elimination of Discrimination Against Women in local law and the creation of a federal agency to assess States’ performance in relation to religious freedom under the International Covenant on Civil and Political Rights. Knop illustrates that international law can contribute to “the configuration and attributes of virtually any part of the state” and analyses what happens when people (or a people) choose international law as a way to do domestic law and politics. She concludes that techniques used at the international level, such as reporting, scrutiny of reports and persuasion, are being employed at the domestic level.

In her contribution, Amokura Kawharu looks at one of the mechanisms for enabling non-State actors to participate in investment treaty arbitration. She traces the practice of non-parties being able to submit, as amici curiae, written briefs in arbitral processes that would otherwise be closed to public engagement. Kawharu presents a mixed assessment of this emerging practice and its ability to address any legitimacy deficit. While the opening up of the process is welcomed, Kawharu raises concerns about the non-representative character of those participating and the tendency of tribunals to downplay the value of participants’ contributions. She also questions whether this participatory mechanism, in itself, leads to greater transparency. Kawharu’s evaluation suggests that greater attention needs to be paid to these shortcomings if such participation is seriously to ameliorate the legitimacy deficit in these arbitral processes.

Claire Charters advances doctrinal, functional and self-determination-based arguments for indigenous peoples’ participation in international law and policy that affects them, which, in turn, enhances the legitimacy of resulting international norms. Charters advances a contextual–participation approach to indigenous peoples’ participation in international law and policy, which she argues requires different degrees of participation of indigenous peoples along a continuum. Indigenous peoples’ participation should be substantial where the issue is of considerable importance to the indigenous peoples and where the relevant State does not have a mandate to speak on behalf of the indigenous peoples. But participation can be more limited where indigenous peoples’ interest in the issue is not greater than that of any other individual or group. The doctrinal justification is based on existing international human rights law. The functional approach emphasises the value, especially democratic, of indigenous peoples’ participation. Finally, she says, the self-determination justification illustrates that indigenous peoples’ participation realises indigenous peoples’ self-determination as understood in contemporary international law.

Theoretical and practical insights are blended in the contribution by Margaret Wilson, a contribution enriched by her former experience as a political and constitutional office-holder (political party president, Member of Parliament, Cabinet Minister, Attorney-General and Speaker). Wilson discusses some of the vehicles through which citizens participate in the democratic process, as well as identifying some of the challenges those vehicles present. First, she looks at the right to vote as the cornerstone of representative democratic government. The influence of political parties – as both facilitators of, and gatekeepers to, this political representation – is examined. Wilson acknowledges the role of the triennial vote and the tension it creates for the participation of the people(s). She suggests, on the one hand, that the ballot box remains the populace’s most tangible check on executive power but, on the other hand, that the small window for policy development and implementation is an impediment to public participation. Secondly, Wilson promotes the notion of egalitarianism as an important precondition to participation in governance, but doubts whether its aspirations are actually achieved in modern-day New Zealand. Finally, Wilson presents a case study – the establishment of the Supreme Court as New Zealand’s indigenous final appellate court – to illustrate the opportunities (and hurdles) for public participation. Her chapter, from the perspective of the Cabinet Minister who was responsible for implementing the reform, provides a front-line account of how demands for public participation and engagement were navigated.

Jonathan Boston picks up on Wilson’s discussion of egalitarianism and reflects further on the meaning of equality in a chapter originally delivered as a comment on Wilson’s conference address. Boston nods in agreement with Wilson’s identification of egalitarianism as an important value, along with her assessment of its decline in recent years – particularly in the context of the dominance of the neoliberal agenda. Pondering whether the decline of support for egalitarian values is tied to a lack of clarity about the meaning of equality, Boston examines three types of equality: of outcomes, of opportunities and of status. He also raises the subsequent question of whether (or, rather, how) egalitarian principles – however defined – should be balanced against other desert-based principles of social justice like merit, contribution and effort. Finally, Boston concludes by linking his discussion of equality to recent debates on the control of the funding of political parties and election campaigns, reiterating his plea for a deeper appreciation of egalitarian values that underlie claims for political equality.

Jeremy Waldron favours participation in governance via multiple layers of participatory frameworks rather than, in contrast, participation via ascriptive and static categories based on membership in certain groups such as an indigenous people. Specifically, Waldron cautions against privileging certain peoples’ participation in politics on the basis of their historical lack of consent to a polity’s constitutional structure or arrangements or on the concept of self-determination. In relation to the latter, Waldron objects particularly to an identity-based conception of self-determination where ethnically or culturally distinct groups determine their own separate constitutional and political arrangements. He argues that such conceptions are tarnished by excesses of nationalism and discrimination and ignore the multiplicity of attachments that individuals may have in addition to their own ethnicity and/or culture.

Elisabeth McDonald looks at the participation of non-dominant groups in the law reform process, drawing on her own personal experience as an academic promoting reform. Her narrative spans a number of issues of particular interest to different non-dominant groups: the repeal of the partial defence of provocation, the ‘rape shield statute’ regulating evidence of previous sexual experience, the trial process in sexual cases, and surgery on intersex infants. She paints a grim picture of the (in)ability of those seeking to effect change on issues important to non-dominant groups. McDonald remarks that her experience, as a feminist and a member of the GLBT community, “reinforced feelings of being silenced and marginalised”. But while the experience was demoralising, progress was achieved on a number of issues. McDonald speculates, though, that the various catalysts for successful change lay elsewhere – outside the grasp of non-dominant groups. She laments the need for bad cases to enliven the media, the public at large and politicians to the need for reform; constructive lobbying and pressure from non-dominant groups and those speaking on their behalf may not be enough.

The contribution by Peter Cane examines participation in administrative decision-making through a constitutional lens. The focus of his chapter is the constitutional regulation of the different forms of citizen participation: popular participation (voting or referenda); contributory participation (pre-decision participation); or contestatory participation (post-decision challenges by judicial review or other grievance mechanisms). He identifies the various ways these different forms of participation are positively promoted or negatively limited in either constitutional documents or those statutes with particular constitutional gravitas. His analysis demonstrates piecemeal regulation – something he suggests sits uncomfortably with the aspirations of those seeking to restructure the political and governmental systems to make them more participatory. Ultimately he challenges us to reflect on whether participation is a “structural postulate” of our constitutional system – and, indeed, whether it ought to be.

David Caygill brings an insightful perspective on participation in administrative and parliamentary processes from his long experience as a Member of Parliament, Cabinet Minister and member of numerous governmental bodies. He undertakes a brief health check of our participatory processes and concludes, with some reservations, that our democratic culture is generally in good shape. But, as someone charged with receiving contributions and making decisions, Caygill worries about some of the inputs missing from the participatory process, such as the voice of end consumers and lay people. He is also concerned that there may be a lack of appreciation of the wider context and inevitable trade-offs. He suggests we focus more on the big picture, encouraging the community as whole to be quizzed about their priorities.

Participation in local democracy is examined by Dean Knight. In his contribution he identifies the different mechanisms that provide for the consideration of community views by local authorities. The closeness of the relationship between the governors and governed in the context of the neighbourhood means participatory democracy is one of the hallmarks of local government. Knight looks closely at reforms of local government legislation that sought to capture and mandate the participation of citizens in local decision-making, including the adoption of a provision that requires local authorities to take account of community views whenever they make any decision. He also looks at the role of the judiciary in supervising compliance with the novel legislative regime. Knight raises concerns about juridification, with the courts strictly enforcing the obligation to take into account community views. He questions whether this was the legislative intent and points to signals in the legislation that a degree of political judgement and some latitude are required when assessing when and how community views will be factored into decision-making.

Each of these contributions canvasses a wide variety of important issues relating to the place of the people(s) within the frame of public law and government. This collection, and the conference on which it is based, follows a pattern of enquiry instigated by the New Zealand Centre for Public Law. Previous conferences have provided a platform for the in-depth study of the component parts of New Zealand’s constitutional framework, with three earlier conferences exploring the primary organs of government: the legislature, the courts and the executive.1 In this phase the focus moves to the relationship between the populace and the state. We are delighted with the contribution each of the perspectives in this book makes to that topic and believe the package as a whole adds a rich contribution to scholarship on participation in governance.

__________________________________________

1    (2004) 2(1) NZJPIL (courts); (2005) 3(1) NZJPIL (Parliament); and (2006) 4(1) NZPIL (executive).

*    Human Rights Officer, United Nations Office of the High Commissioner for Human Rights (OHCHR) and Fellow, New Zealand Centre for Public Law, Victoria University of Wellington. The views expressed herein are those of the author and do not necessarily reflect the view of the United Nations.

    Senior Lecturer, Faculty of Law and Associate, New Zealand Centre for Public Law, Victoria University of Wellington.

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