Lindsay Perigo
Lindsay Perigo

Treaty Out, Constitution In

Editorial, Waitangi Day special, Radio Pacific

Good morning and welcome to this special Waitangi Day nine-to-noon show on Radio Pacific. I'm your host, Lindsay Perigo, and I'm here to argue that this day is a farce, & the Treaty it commemorates should be dumped.

It is touted as the founding document of the nation. It was never intended to have such a grandiose status and should not be accorded it now. As a founding document, it is woefully inadequate. There is too much that it doesn't say. What it does say is capable of contradictory interpretations. These ambiguities have permitted the creation of a grievance industry costing current generations of taxpayers, who are innocent of any wrongdoing, thousands of millions of dollars, with no end to the payouts in sight. These ambiguities have permitted the perpetuation of racial divisions that have no basis in reality. These ambiguities have permitted the resurgence of that most insidious of diseases — tribalism: blind loyalty to one's own, blind hatred for any other. The subordination of one's own individuality to an accident of birth.

In part it was tribal warfare that the Treaty was designed to rescue Maori from; now, tribal warfare is being fought again — in the Treaty's name. The document that was supposed to render all of us British subjects, with the rights & privileges thereof, is now being invoked to implement apartheid — with the explicit sanction of the Minister of Justice. The Treaty that did bring peace in 1840 has raised the spectre of civil war in 1998.

This must stop. There is no point in repairing to the Treaty — it is ambiguous, however clear the signatories may have been as to what they were signing — and it raises questions which ultimately, in terms of the Treaty itself, are unanswerable. How to reconcile the ceding of sovereignty in Article One with tino rangatiratanga in Article Two? What, precisely, does tino rangatiratanga mean? What did it mean to the Chiefs at the time? Did the Crown routinely swindle sellers of land subsequent to the Treaty, or did the transactions reflect the genuinely held values of both sides at the time? If so, why are we having to revisit these transactions at all? If not, is it reasonable to expect you & me to atone for the fact? Can tino rangatiratanga reasonably, legally be invoked to claim rights to things that didn't exist at the time, such as radio & television networks? Etc.

It is time to set all of this aside. This morning I want to look forward. I do not want to relitigate the past. What I will argue for today is a new constitution that supersedes the Treaty of Waitangi & any other quasi-constitutional documents which undoubtedly will be referred to. The Magna Carta for instance, rightly has a cherished place in the chequered history of the liberation of individuals from the yoke of tyranny — but much of it has long since been overtaken by time & is quite simply irrelevant to anything happening today. Moreover, its language is now well-nigh impenetrable. It was designed primarily to protect churches & noblemen from the Monarch. Our task, I submit, is to protect all citizens, regardless of their station in life, regardless of their colour or creed, from coercion — the initiation of force against them — by anyone, be it the government or private citizens.

My concern this morning is not with the precise mechanics & logistics of the process of government — not with how many MPs we should have, for example, although I certainly think the number should be reduced from its present level. These matters should be dealt with in any constitution — but my main concern right now is to spell out what I think should be the over-riding purpose of a new constitution, the principles it should specify, the relationship it should establish between the state & the individual. What follows is part me, part US Declaration of Independence, and part our existing Bill of Rights.

I think the preamble should go something like this:

We the people hold the following truths to be provable in reality: that human beings are entitled to sovereignty over their own lives, by virtue of their nature as thinking, choosing entities; that certain inalienable rights can be derived logically from their nature; that among these are life, liberty, & the pursuit of happiness (including the lawful acquisition of private property); that to secure these rights, governments are instituted among people, deriving their power to secure these rights from the consent of the governed; that all laws devised & enacted by government shall be for the purpose of securing these rights; that no laws shall be devised & enacted by government in violation of these rights; and that whenever any government becomes destructive of these rights, it is the right of the people to alter or to abolish it and to institute new government.

The Articles that follow should then spell out these derivative rights:

The right to freedom of thought, conscience & belief; the right to freedom of expression, including the freedom to seek, receive & impart information and opinions of any kind in any form; the right to freedom of association, including the right to enter into any relationship of any kind by mutual consent; the right to freedom of movement; the right to justice (this subsumes some other rights such as freedom from arbitrary arrest, presumption of innocence, etc.); the right to the fruits of one's own labour & the protection thereof from government confiscation; the right to act on one's own property as one chooses; and the right to self-defence, including the right to possess the means thereof.

There should in addition be an Article specifying that these rights cannot be exercised by one citizen or group of citizens in such a way as to violate the rights of other citizens. And there should be an Article specifying that government as such has no rights, only a duty to uphold these rights.

Within this framework, any land grievances would be pursuable through the justice system on the basis of a demonstrable & reasonably remediable confiscation of property. They would not be the basis of the construction of a gravy-train, separated out from the justice system & bestowing preferential treatment on one sector of the population because of skin colour.

And you may have noticed the complete absence of what I call "bogus rights" — the "right" to an education, for example, which implies an unchosen obligation on someone else's part to provide you with one. There is a right to seek an education & negotiate with educators if they agree to negotiate with you — but you are not entitled to force them to deal with you. If we do indeed have "unchosen obligations," then any discussion of "rights" is a complete waste of time. We are simply other people's slaves from birth.

Now I don't claim that what I've laid out thus far is complete or perfect, either philosophically or stylistically (I've certainly succeeded in destroying the soaring poetry of the Declaration of Independence!). But it's a start, and it forms the essence of my contribution this morning.

See also "A Constitutional Call to Arms" by Peter Cresswell in TFRs #24 & 25.

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