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The Logic of Entrenchment

© Peter Zohrab 2008

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I am neither a historian, nor an expert in constitutional law, but that is an advantage -- given that our universities are staffed by lecturers who mostly seem to consider their self-esteem to be closely tied to approval from the Leftist social environment in which they work.

The forecast configuration of forces after the upcoming election gives the undemocratically-elected Maori Party the power to force the major parties to bid for its support (It is undemocratically elected, in the sense that its holding of so many of the Maori seats give it much more representation in Parliament than its share of the popular vote -- and the MMP electoral system was introduced in an attempt to represent the popular will more precisely).

This undemocratic power of the Maori Party is now being used to try to entrench this very same undemocratic power -- when no other law in New Zealand is currrently entrenched, as far as I am aware. The Maori Party has stated that its bottom line in any negotiations about forming a new government would be the entrenchment of the Maori seats. And the Labour Party has already caved in under the pressure and agreed to support entrenchment.

Entrenchment would mean that it would take a 75% majority of Parliament to repeal the provision for the separate Maori seats. However, as Helen Clark has pointed out, the section of the Act which entrenched this provision could itself be overturned by a simple majority in Parliament, and then the Maori seats could be removed by a simple majority as well.

In the TV One "Agenda" interview in which she said this, she also stated that, although the entrenchment could be subverted in the above manner, the fact of entrenchment created a moral pressure on Parliament not to subvert it.

So far so good. However, would the Act of Parliament which created the entrenchment of the Maori seats itself need to be passed by a 75% majority of Parliament? There has been no mention of this, and it seems very unlikely, since Parliament, on current polling, is very unlikely to contain enough supporters of entrenchment to make that feasible. Would the National Party risk huge divisions within its caucus by trying to force National Party members to vote for entrenchment?

According to the webpage http://www.scoop.co.nz/stories/PO0806/S00281.htm , Professor Keith Joseph has stated that the

"four Maori seats were first created for a five year period to give Maori men who didn't meet the standard individual property-ownership qualification the right to vote."

So the Maori seats were first introduced to counteract some indirect discrimination in our electoral laws, which has since been abolished! It is clear, then, that there would have been no insistence on a 75% majority for the introduction of the Maori seats in the first place. Since there was no 75% majority for the introduction of the Maori seats, and since there is unlikely to be a 75% majority for any Amendment Act that inserted an entrenchment section into the original Act, any entrenchment of the Maori seats would have no moral force or logical consistency.

There is a long-standing principle of constitutional law that each Parliament is sovereign and cannot bind its successors. In other words, each Parliament can ignore what previous Parliaments have done and make up its own mind on all issues under the sun, which is as it should be. The main exception to this principle occurs in the case of constitutional legislation, which can legitimately bind future Parliaments, although I am not aware of this possibility having been utilised in New Zealand up till now.

The Third Article of the Treaty of Waitangi guarantees equality for all citizens, whether they are Maoris or settlers from multicultural Britain, or elsewhere. Maoris do suffer from unequal treatment, as in the case of the Seabed and Foreshore Act, but that is not a reason to entrench unequal treatment for Non-Maoris.

The term "indigenous" is incoherent, as usually used. We all came out of Africa, after all. Maori DNA is a mixture of Polynesian and Melanesian DNA, showing a mixed ancestry. The Maoris consisted of separate tribes before they came here, and we do not know that they came here from the same place or at the same time. Since they have been in New Zealand, they have fought lots of wars between themselves, and the survivors only have conquest to thank for the land rights and other rights which they now protest about. Where is the morality in conquest, slavery and cannibalism ? Not that the British Empire was any better, of course!

See also: Hobson's Pledge

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Peter Douglas Zohrab

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21 February 2017

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