Patron: Her Excellency The Right Honourable Dame Patsy Reddy, GNZM, QSO, Governor-General of New Zealand

Constitutional Law in a time of democratic decline

Constitutional Law in a time of democratic decline

 

Address to the Asia Forum meeting held at Bell Gully, Board Room 171 Featherston Street Wellington, 10 March 2021, 5.30pm.

 

Rt Hon Sir Geoffrey Palmer QC

Speech Notes

 

 

This speech results from a summer holiday project of mine writing a law review article with a similar title. I shall spare you the footnotes.

 

The first section outlines the nature of democratic decline, including discussions of  recent developments in the United States and the United Kingdom. Then follows a discussion of the digital revolution and its implications for democracy.

 

The second section considers some modest steps that can be taken to guard against decline.

 

The third deals with other aspects of these issues and what they mean for     New Zealand’s international relations, particularly regarding Asia.

 

Democratic Decline

 

To begin with let’s look at the evidence of democratic decline, and I note this phenomenon is not evident in New Zealand.

 

However, there is something of a crisis in the confidence in democratic governments around the planet. Change is inevitable, its rate is accelerating, coping with it may require some hard thinking. The policy problems are many, just think of climate change, for example.

 

In 1989, American political scientist Francis Fukuyama announced that mankind had arrived at the end point of ideological evolution. That end point of history was “the universalisation of Western democracy as the final form of human government.” The superiority of the liberal democratic state had been established.

 

We know now that view was wrong. The assumption that democracy is inevitable needs to be revisited. Martin Shapiro, a political theorist, wrote in 2003 in relation to democracy that its “political legitimacy is seldom seriously challenged in the contemporary world.

 

It is challenged now. It is challenged by China who has a President with no term limits and whose behaviour towards Hong Kong cannot be supported.  Democracy is also challenged by Russia and such countries as Belarus, Hungary, Poland, Thailand, Turkey, Venezuela and now Myanmar and Kyrgyzstan.

 

A tendency toward authoritarianism is clearly discernible. The number of democracies has declined; democracy is seen to be in retreat.

 

A recent and rigorous 2020 report produced by the Centre for the Future of Democracy at the University of Cambridge concluded: “We found that dissatisfaction with democracy has risen over time, and is reaching an all-time global high, in particular in developed democracies.  Across the globe democracy is in a state of malaise. Dissatisfaction has risen sharply since 2005.”

 

The report states there has been an especially acute crisis of democratic faith in the Anglo-Saxon democracies, where dissatisfaction has doubled.

New Zealand, however, has avoided  the “trajectory of soaring public discontent” and the report says this may be because it is the only country in the group to have adopted a proportional representation electoral system.

There is something in that point but not enough to think we can rely on that for eternity.

 

A report by human rights group Freedom House, Nations in Transit 2020-Dropping the Democratic Façade, found that 2018 was the 13th successive year of deteriorating freedoms around the globe. The decline of democracy was alarming with more countries moving toward authoritarian rule. In their most recent annual report published only last week it says three quarters of people who live on earth live in countries where freedom is declining. This is the 15th year in a row the organization has reported that democracy is going backwards.

Populist forces are pushing against long held democratic principles.

 

New Zealand is not immune from populist leaders, as those of us who lived through Sir Robert Muldoon’s tenure will recall. Democratic decline does not have to be accompanied by a coup d’ état or revolution. It can be achieved by restricting freedom of speech and freedom of assembly, weakening the rule of law by undermining the judiciary or replacing them.

 

The levels of corruption and cronyism within governments contributes to the decay. The current tendency of people to look to governments to protect them, for example from the Covid-19 pandemic, provides an opportunity for governments so minded to accumulate greater power and hang onto it.

The United States and the United Kingdom

 

There are malign influences that afflict democracies in what we used to call the western world, particularly in the United Kingdom and the United States. These two countries have most influenced New Zealand’s political and constitutional development.

 

The Anglosphere has lost its mojo. This should put New Zealand on notice to consider its constitutional fundamentals in order to avoid possible future instability. Issues in the future, particularly climate change, could produce significant disruption as the economy is transformed.

 

I should point out here that I have lived in the United States for more than 10 years at various stages of my career.

 

The phenomenon of President Trump in the Presidency of the United States has changed the politics of that country perhaps permanently. His methods are likely to have diminished the power and prestige of the United States in the eye of many nations.

 

The absence of his leadership on such critical issues as Covid-19 was     breathtaking. The performance of the United States on Covid-19 has not protected its citizens adequately. For the President to deny the science, attack his advisers and encourage people to attend his rallies without wearing masks was irresponsible.

 

Nowhere in the world has this global pandemic been worse than the United States, clearly due to a failure of federal and state government policy and leadership. By 23 February 2021 there had been 500,000 Covid-19 deaths in the United States,  exceeding the combined number of Americans killed in in      World War I, World War II and the Vietnam War.

 

Trump also denied the science on climate change, undid many environmental protections and left the Paris Agreement. Fortunately, his successor has rectified that.  Trump was also an advocate of the American gun culture that increases the risk of injury and death to its citizens.

 

The degradation of governmental institutions that occurred under Trump was distressing. The trends towards racism and authoritarianism are a cause for concern.  A flurry of books has been published on American extremism. The erosion of the rule of law and the politicization of the judiciary have been damaging and the tendency has been going on for some years.

 

 

The United States and the United Kingdom

 

There are malign influences that afflict democracies in what we used to call the western world, particularly in the United Kingdom and the United States. These two countries have most influenced New Zealand’s political and constitutional development.

 

The Anglosphere has lost its mojo. This should put New Zealand on notice to consider its constitutional fundamentals in order to avoid possible future instability. Issues in the future, particularly climate change, could produce significant disruption as the economy is transformed.

 

I should point out here that I have lived in the United States for more than 10 years at various stages of my career.

 

The phenomenon of President Trump in the Presidency of the United States has changed the politics of that country perhaps permanently. His methods are likely to have diminished the power and prestige of the United States in the eye of many nations.

 

The absence of his leadership on such critical issues as Covid-19 was     breathtaking. The performance of the United States on Covid-19 has not protected its citizens adequately. For the President to deny the science, attack his advisers and encourage people to attend his rallies without wearing masks was irresponsible.

 

Nowhere in the world has this global pandemic been worse than the United States, clearly due to a failure of federal and state government policy and leadership. By 23 February 2021 there had been 500,000 Covid-19 deaths in the United States,  exceeding the number of Americans killed in World War I, World War II and the Vietnam War combined.

 

Trump also denied the science on climate change, undid many environmental protections and left the Paris Agreement. Fortunately, his successor has rectified that. Trump was also an advocate of the American gun culture that increases the risk of injury and death to its citizens.

 

The degradation of governmental institutions that occurred under Trump was distressing. The trends towards racism and authoritarianism are a cause for concern. A flurry of books has been published on American extremism. The erosion of the rule of law and the politicization of the judiciary have been damaging and the tendency has been going on for years.

 

 

 

The degree of polarisation and the inability to compromise do not bode well despite the relief provided by the victory of President Biden. The level of support secured by Trump will remain a brake on a return to orthodoxy and will test the methods by which government is conducted in the United States. It is sad that democracy has become a partisan issue – it is as if the country is divided into two camps which believe different versions of reality.

 

Some believe Trump behaved as if he was imbued with the divine right of Kings which the American Revolution of 1776 was designed to stop. Trump’s Attorney-General took an extremely generous and unduly wide view that everything the President does is constitutional.

 

No President in American history has behaved in the way Trump has behaved. The quantity of his lies is legion. Indeed, he was himself the origin of much “fake news” about which he fulminated. He continued to lie after the polls closed.  According to the Washington Post Trump made 30,573 false or misleading claims. Nearly half came in the final year in office.

 

For example, Trump’s assertions on postal voting lack any factual basis despite their constant repetition. Constant repetition of big lies does not make them the truth, but it does sow the seeds of mistrust in the minds of many people.

 

One of the most serious consequences of the Trump presidency from the point of view of a democratic future lies in his use of rhetoric to inflame a mob by repeating lies over and over again. Since he occupied the highest office in the land office many people believed him. The effort to undermine democracy by storming the Capitol caused many to turn upon Trump and denounce him. Ten Republican members of the House of Representatives voted for his impeachment and seven for his conviction in the Senate.

 

While there has been an atmosphere of authoritarianism from the beginning of the Trump administration it morphed into a serious attempt to change the result of the election and conduct something in the nature of a coup d’état based on conspiracy theories.

 

The idea was that the government of the United States lacked legitimacy. This idea could lead to something approaching fascism if it prevails.

Without agreement about basic facts citizens cannot form a civil society or maintain vital institutions. The US example illustrates how over time an atmosphere can be created that allows democratic practices and procedures to be discredited and taken away.

 

In the other main English-speaking democracy, the United Kingdom, things are not much better. Managing the crisis brought about by Covid-19 and completing the steps to leave the European Union have been disruptive, damaging to the economy and the morale of people. Since the Brexit referendum, the United Kingdom has been in a long-drawn-out crisis of governance. It has involved two general elections, a referendum, two journeys to the Supreme Court of the United Kingdom and two defeats for the government in the Parliament.

 

How the future of the United Kingdom will develop, and whether it will remain as the United Kingdom, must be regarded as open questions. The Johnson government is attempting to curb the powers of the rather new Supreme Court and reduce accountability by throttling back on judicial review. These tendencies seem aimed at reducing the rather meagre system of checks and balances against a strong executive that exists in the United Kingdom. This is     one characteristic the New Zealand political culture shares with the United Kingdom.

 

The Digital Revolution

 

Isolating the strands that have contributed to the crisis in governance     weighing upon democracies is no easy task. One factor has been the digital revolution.

 

These developments have changed the way in which politics is conducted, they have changed the nature of political parties, and they have changed the methods of political communication.

 

They have weakened the traditional media and threatened their business models. On the other hand, it can be seen that media systems have been opened up to a wider range of people with a wider range of views than those reflected in the traditional media. A revolution has been wrought by the digital media. It is not going too far to suggest that these developments pose for governments more difficult challenges than did the invention of the printing press centuries ago.

 

At the same time the development of social media platforms such as Facebook, Twitter, YouTube, Reddit and many others have provided the opportunity for the expression of unmediated opinions with no fact checking. This provides     the opportunity to express extreme views and conspiracy theories with no accountability for the consequences. The gatekeepers have gone.

 

New Zealand learned of these dangers during the terrorist attack by a lone gunman in Christchurch on March 15, 2019. The attack killed 51 Muslim people worshiping in mosques at Christchurch and injured many more.

 

This led to the Christchurch Call in which Prime Minister Jacinda Ardern combined with other foreign leaders to encourage the social media platforms to remove the images uploaded to Facebook by the terrorist depicting the carnage he had wrought. The tragedy has been carefully analysed by a Royal Commission whose report was released on 8 December 2020.

 

Other features of the digital revolution unfolded in the saga of the Cambridge Analytical/Facebook data breach and the scandal that ensued with its use in the Brexit referendum in the United Kingdom. There were also alleged social media activities by Russian intelligence agencies to influence the outcome of the election in the United States in 2016.

 

The new media’s  increased capacity to promote conspiracy theories through the Internet in which social media became “a breeding ground for fanaticism, authoritarianism, and nihilism,” in the words of Jill Lepore in her magisterial history of the United States entitled These Truths.

 

The development of the Internet was thought to have provided new opportunities for connection and engagement with the traditional political processes, enlivening them and promoting a sense of real engagement with politics and decision-makers. Certainly, some of this has taken place. Many public authorities engage in consultations with the public through the Internet and social media platforms.

 

How the digital media will influence politics in the long term cannot yet be fully known. But there can be little doubt that political decision-makers and the institutions of government are profoundly affected by these changes. New means are available for promoting ideological goals. New means are available for influencing political decision-makers.  Truth does not always prevail in these engagements.

 

Now it seems more difficult to know what information to believe and what to discount. Voters are easily confused and do not know what to believe. Rumours are spread frequently through these platforms with deliberate political purpose. Group attitudes and voting preference can be manipulated by algorithms. Against such developments the traditional protections provided in New Zealand by the Electoral Act 1996 are largely impotent. Bad information can be spread, and people make up their own minds what to believe, and the facts tend to be discounted.

 

What is to be done?

 

New Zealand stands against the trend of democratic decline. The general election in October 2020, the year of Covid-19, returned a majority single party government under the leadership of the Rt Hon Jacinda Ardern for the first time since the Mixed-Member Proportional system of election law began in 1996.

 

Since Covid-19 arrived strong restrictions have been imposed by the government on many personal freedoms, for example orders to stay at home and not go out for a significant period, to combat the virus. Yet the Prime Minister and the Labour Party won a handsome political victory in the October 2020 general election, in particular it would seem for a successful set of policies that largely kept Covid-19 out and the death rate low, compared with almost every other country.

 

There is no apprehension in New Zealand that Covid-19 restrictions could became a permanent part of the constitutional landscape in New Zealand.  Nevertheless, the dangerous anti-democratic trends that have emerged in other countries could arrive here in the fullness of time, in part due to social media and the digital revolution.

 

A re-examination of the intellectual foundations upon which the New Zealand system rests could be helpful. Looking to the future we do need to understand that democracy can easily be blown off course. Division and polarisation, once they occur, can morph into authoritarian or autocratic government and fan social division.

 

The recent developments among democracies with whom we often compare ourselves need to be taken seriously.  While New Zealand does tend to stand out as a beacon of democratic hope, we need to be mindful of destructive tendencies that have emerged elsewhere. These tendencies have been enabled by the digital revolution.

 

Above all there must be trust in Government and its institutions by the people on whose behalf it makes decisions. Democracy is a fragile flower and needs to be carefully nurtured, watered and weeded if it is to thrive. A renewed commitment to democracy in an increasingly uncertain world should start with education at all levels.  People need to understand a number of basic concepts that may be insufficiently traversed currently in schools or in the basic public law courses.

 

I am asking for a broader approach to an understanding of constitutional law in New Zealand and a different appreciation by the legal profession of the elements contained in the existing system.

 

This is linked to a related plea for a more intense and comprehensive education in civics in New Zealand schools. By that terms I mean “citizenship education.” It is especially difficult at law school to teach public law to students who have little grasp of their country’s own politics and history. To survive and participate in a democracy political literacy is necessary. That entails understanding the New Zealand system of government and how to hold it accountable.

 

We need to concentrate upon the health of our New Zealand institutions, New Zealand politics and New Zealand problems. The example of the two major Anglophone democracies to which New Zealand historically has related do not offer the comfort that once they did.

 

We must be cautious in looking to either the United States or the United Kingdom as we have customarily done to burnish our New Zealand democracy. We must pay attention to our own history and traditions and develop them further. We must consider our own geographical space and what that means for our national interests. We need to look at the consequences of colonisation. We must examine the place of the promise made in the Treaty of Waitangi to Māori and why progress has not been more noticeable.

 

And it is to our own history we need to look to fashion remedies for the problems we now have. That case argues for increasing the level of general education about how the New Zealand government works and the level of political literacy in the population in order to strengthen support for democracy. The blessings of a liberal democracy are substantial, but they can easily slip and slide away.  We should not be romantic about democracy. It has many weaknesses which is why it has to be kept in a constant state of repair.

 

Implications for New Zealand’s Foreign Relations

 

There are serious implications for New Zealand in the trends that exist globally around democratic decline. A resurgent China seems to be flexing its soft power and influence, as well as increasing its hard power. It appears to be intent upon playing a more active international role than before. This suggests that      clashes between China and the United States may emerge.  New Zealand has vital national interests wrapped up in these developments.

 

The existence of the state tells us where public law begins. And it suggests what comes first, it must be international law. How states regulate their relations with one another remains a vitally important subject for our future despite the retreat from international cooperation that has occurred in recent times.

 

New Zealand is a small country of five million people remote from other countries and separated by vast areas of ocean. It is also a country that relies heavily on international trade for its livelihood. With a vast coastline it is not an easy place to defend in the case of hostilities. As a result of these and other factors, a rules-based system of international law and treaty arrangements rank as issues of critical importance.

 

New Zealand has forged a strong independent foreign policy, tested at times by the consequences and fallout from the now bi-partisan anti-nuclear policy. It will be important to avoid being caught up in any great power rivalry that may emerge. New Zealand must talk quietly, because it does not carry a big stick.

 

Clearly the United Nations Organisation is not functioning in an optimal manner and it has been resistant to reform. This is discussed in a recent Discussion paper from the New Zealand Centre for Global and Studies and the United Nations Association, authored by Colin Keating, a former New Zealand Ambassador to the United Nations and Dr Kennedy Graham.

 

They make the case for urgent and extensive reform of the United Nations. They are concerned international organisations are “increasingly ineffective in resolving the challenges of the modern world.” And there has been an erosion of support for these organisations from key countries.

 

Two recent scholarly works have struck me as important here.  The first is David Shambaugh’s  2021book Where Great Powers Meet – America and China in South East Asia. This book argues that comprehensive competition exists between the United States and the People’s Republic of China. This      competition plays out over diplomacy, commerce, security, intelligence ideology, values, science and technology. The book examines the implications.

 

The issues are analysed in the context of South East Asia and the 10 ASEAN nations. Clearly South East Asia is a region of considerable importance to New Zealand. The book concludes that the rivalry remains fluid and may develop differently in the future. The author offers four scenarios:

1.         Further band wagoning toward China

2.         Continuing Soft Rivalry and Competitive Coexistence

3.         Hard Rivalry and Polarization

4.         More Neutral Hedging.

What happens in the future will have consequences for New Zealand.

 

The second book is Joseph Nye’s book Do Morals Matter? Presidents and Foreign Policy from FDR to Trump published in 2020.   The book makes the case for United States diplomacy to engage its moral compass. It warns against populist policies. In this respect it is combatting a well-established idea that morality does not really figure in foreign policy. It is what works and what helps the country. Some would say, echoing Machiavelli, that the end justifies the means. The Trump presidency revived an interest in the question of what is a moral foreign policy. Nye argues it is a complex process of weighing three factors: intentions; means; and the consequences of the decision.

 

In an engaging analysis of the morality of the decision-making of all the presidents in the period from FDR to Trump, Nye provides rankings of their performance and plots the ups and downs of morality in American foreign policy during the period. Domestic public opinion comprises an important ingredient of the equation. Foreign policy is not the same thing as human rights policy; the former involves many trade-offs.

 

Nye warns of the economic importance of great power shifts – the rise of Asia in general and China in particular. The other driver is technology developments with increased economic, political and ecological interdependence. It is remarked that we may be at the end of Western led globalisation and a US led global order. The critical issue Nye sees lies in the need to cope with the rise of China sensibly and not to over or underestimate Chinese power. It is important, he says, for the US not to get trapped into over-reacting to the increased economic clout of China.

 

The geopolitical future is unclear. Whether a new global hegemon can emerge remains unknown. Meanwhile while democracy continues to be unfashionable in some quarters, New Zealand needs to be on its guard.  We do not want current developments to signal an end of the golden democratic weather. Rising levels of nationalism will not help. Nor will identity politics. New Zealand will require diplomacy of the highest quality to navigate through the challenges of a changing global order.

 

The inaugural Foreign Policy Speech of the Minister of Foreign Affairs, the Hon Nanaia Mahuta, to the Diplomatic Corps at Waitangi on 4 February set out the approach of the government.

 

As the first indigenous Minister of Foreign Affairs in New Zealand she likened the tasks of diplomacy to those of the Treaty. She said “The principles of partnership and mutual respect embodied in the Treaty provide a foundation for how New Zealand conducts its foreign policy.”

 

The speech set out with clarity the Government’s aim and priorities including critical relationships:

 

●       The Trans-Tasman relationship

●       The Pacific and the promotion of regional stability

●       The ten Asian countries

●       The United States

●       China

●       Canada

●       Europe.

 

There was a strong emphasis on supporting and strengthening international institutions including the UN, WTO, WHO and UNCLOS. New Zealand recognised its “unique and independent identity.”

 

“As an indigenous Foreign Minister, however I’m looking for mature relationships,acting on the values that define who New Zealanders are and creating space to, at times, agree to disagree on.”

 

This indicates a desire to continue  a strong, independent foreign policy that  could maintain New Zealand’s democracy in good heart in future. I look forward to seeing the results.

 

Thank you.

 

 

Rt Hon Sir Geoffrey Palmer QC

Address to the Asia Forum meeting held at Bell Gully, Board Room 171 Featherston Street Wellington, 10 March 2021, 5.30pm.

This speech results from a summer holiday project of mine writing a law review article with a similar title. I shall spare you the footnotes.

The first section outlines the nature of democratic decline, including discussions of recent developments in the United States and the United Kingdom. Then follows a discussion of the digital revolution and its implications for democracy.

The second section considers some modest steps that can be taken to guard against decline.

The third deals with other aspects of these issues and what they mean for New Zealand’s international relations, particularly regarding Asia.

Democratic Decline

To begin with let’s look at the evidence of democratic decline, and I note this phenomenon is not evident in New Zealand.

However, there is something of a crisis in the confidence in democratic governments around the planet. Change is inevitable, its rate is accelerating, coping with it may require some hard thinking. The policy problems are many, just think of climate change, for example.

In 1989, American political scientist Francis Fukuyama announced that mankind had arrived at the end point of ideological evolution. That end point of history was “the universalisation of Western democracy as the final form of human government.” The superiority of the liberal democratic state had been established.

We know now that view was wrong. The assumption that democracy is inevitable needs to be revisited. Martin Shapiro, a political theorist, wrote in 2003 in relation to democracy that its “political legitimacy is seldom seriously challenged in the contemporary world.

It is challenged now. It is challenged by China who has a President with no term limits and whose behaviour towards Hong Kong cannot be supported. Democracy is also challenged by Russia and such countries as Belarus, Hungary, Poland, Thailand, Turkey, Venezuela and now Myanmar and Kyrgyzstan.

A tendency toward authoritarianism is clearly discernible. The number of democracies has declined; democracy is seen to be in retreat.

A recent and rigorous 2020 report produced by the Centre for the Future of Democracy at the University of Cambridge concluded: “We found that dissatisfaction with democracy has risen over time, and is reaching an all-time global high, in particular in developed democracies. Across the globe democracy is in a state of malaise. Dissatisfaction has risen sharply since 2005.”

The report states there has been an especially acute crisis of democratic faith in the Anglo-Saxon democracies, where dissatisfaction has doubled.
New Zealand, however, has avoided the “trajectory of soaring public discontent” and the report says this may be because it is the only country in the group to have adopted a proportional representation electoral system.
There is something in that point but not enough to think we can rely on that for eternity.

A report by human rights group Freedom House, Nations in Transit 2020-Dropping the Democratic Façade, found that 2018 was the 13th successive year of deteriorating freedoms around the globe. The decline of democracy was alarming with more countries moving toward authoritarian rule. In their most recent annual report published only last week it says three quarters of people who live on earth live in countries where freedom is declining. This is the 15th year in a row the organization has reported that democracy is going backwards.
Populist forces are pushing against long held democratic principles.

New Zealand is not immune from populist leaders, as those of us who lived through Sir Robert Muldoon’s tenure will recall. Democratic decline does not have to be accompanied by a coup d’ état or revolution. It can be achieved by restricting freedom of speech and freedom of assembly, weakening the rule of law by undermining the judiciary or replacing them.

The levels of corruption and cronyism within governments contributes to the decay. The current tendency of people to look to governments to protect them, for example from the Covid-19 pandemic, provides an opportunity for governments so minded to accumulate greater power and hang onto it.
The United States and the United Kingdom

There are malign influences that afflict democracies in what we used to call the western world, particularly in the United Kingdom and the United States. These two countries have most influenced New Zealand’s political and constitutional development.

The Anglosphere has lost its mojo. This should put New Zealand on notice to consider its constitutional fundamentals in order to avoid possible future instability. Issues in the future, particularly climate change, could produce significant disruption as the economy is transformed.

I should point out here that I have lived in the United States for more than 10 years at various stages of my career.

The phenomenon of President Trump in the Presidency of the United States has changed the politics of that country perhaps permanently. His methods are likely to have diminished the power and prestige of the United States in the eye of many nations.

The absence of his leadership on such critical issues as Covid-19 was breathtaking. The performance of the United States on Covid-19 has not protected its citizens adequately. For the President to deny the science, attack his advisers and encourage people to attend his rallies without wearing masks was irresponsible.

Nowhere in the world has this global pandemic been worse than the United States, clearly due to a failure of federal and state government policy and leadership. By 23 February 2021 there had been 500,000 Covid-19 deaths in the United States, exceeding the combined number of Americans killed in in World War I, World War II and the Vietnam War.

Trump also denied the science on climate change, undid many environmental protections and left the Paris Agreement. Fortunately, his successor has rectified that. Trump was also an advocate of the American gun culture that increases the risk of injury and death to its citizens.

The degradation of governmental institutions that occurred under Trump was distressing. The trends towards racism and authoritarianism are a cause for concern. A flurry of books has been published on American extremism. The erosion of the rule of law and the politicization of the judiciary have been damaging and the tendency has been going on for some years.

The United States and the United Kingdom

There are malign influences that afflict democracies in what we used to call the western world, particularly in the United Kingdom and the United States. These two countries have most influenced New Zealand’s political and constitutional development.

The Anglosphere has lost its mojo. This should put New Zealand on notice to consider its constitutional fundamentals in order to avoid possible future instability. Issues in the future, particularly climate change, could produce significant disruption as the economy is transformed.

I should point out here that I have lived in the United States for more than 10 years at various stages of my career.

The phenomenon of President Trump in the Presidency of the United States has changed the politics of that country perhaps permanently. His methods are likely to have diminished the power and prestige of the United States in the eye of many nations.

The absence of his leadership on such critical issues as Covid-19 was breathtaking. The performance of the United States on Covid-19 has not protected its citizens adequately. For the President to deny the science, attack his advisers and encourage people to attend his rallies without wearing masks was irresponsible.

Nowhere in the world has this global pandemic been worse than the United States, clearly due to a failure of federal and state government policy and leadership. By 23 February 2021 there had been 500,000 Covid-19 deaths in the United States, exceeding the number of Americans killed in World War I, World War II and the Vietnam War combined.

Trump also denied the science on climate change, undid many environmental protections and left the Paris Agreement. Fortunately, his successor has rectified that. Trump was also an advocate of the American gun culture that increases the risk of injury and death to its citizens.

The degradation of governmental institutions that occurred under Trump was distressing. The trends towards racism and authoritarianism are a cause for concern. A flurry of books has been published on American extremism. The erosion of the rule of law and the politicization of the judiciary have been damaging and the tendency has been going on for years.

 

The degree of polarisation and the inability to compromise do not bode well despite the relief provided by the victory of President Biden. The level of support secured by Trump will remain a brake on a return to orthodoxy and will test the methods by which government is conducted in the United States. It is sad that democracy has become a partisan issue – it is as if the country is divided into two camps which believe different versions of reality.

Some believe Trump behaved as if he was imbued with the divine right of Kings which the American Revolution of 1776 was designed to stop. Trump’s Attorney-General took an extremely generous and unduly wide view that everything the President does is constitutional.

No President in American history has behaved in the way Trump has behaved. The quantity of his lies is legion. Indeed, he was himself the origin of much “fake news” about which he fulminated. He continued to lie after the polls closed. According to the Washington Post Trump made 30,573 false or misleading claims. Nearly half came in the final year in office.

For example, Trump’s assertions on postal voting lack any factual basis despite their constant repetition. Constant repetition of big lies does not make them the truth, but it does sow the seeds of mistrust in the minds of many people.

One of the most serious consequences of the Trump presidency from the point of view of a democratic future lies in his use of rhetoric to inflame a mob by repeating lies over and over again. Since he occupied the highest office in the land office many people believed him. The effort to undermine democracy by storming the Capitol caused many to turn upon Trump and denounce him. Ten Republican members of the House of Representatives voted for his impeachment and seven for his conviction in the Senate.

While there has been an atmosphere of authoritarianism from the beginning of the Trump administration it morphed into a serious attempt to change the result of the election and conduct something in the nature of a coup d’état based on conspiracy theories.

The idea was that the government of the United States lacked legitimacy. This idea could lead to something approaching fascism if it prevails.
Without agreement about basic facts citizens cannot form a civil society or maintain vital institutions. The US example illustrates how over time an atmosphere can be created that allows democratic practices and procedures to be discredited and taken away.

In the other main English-speaking democracy, the United Kingdom, things are not much better. Managing the crisis brought about by Covid-19 and completing the steps to leave the European Union have been disruptive, damaging to the economy and the morale of people. Since the Brexit referendum, the United Kingdom has been in a long-drawn-out crisis of governance. It has involved two general elections, a referendum, two journeys to the Supreme Court of the United Kingdom and two defeats for the government in the Parliament.

How the future of the United Kingdom will develop, and whether it will remain as the United Kingdom, must be regarded as open questions. The Johnson government is attempting to curb the powers of the rather new Supreme Court and reduce accountability by throttling back on judicial review. These tendencies seem aimed at reducing the rather meagre system of checks and balances against a strong executive that exists in the United Kingdom. This is one characteristic the New Zealand political culture shares with the United Kingdom.

The Digital Revolution

Isolating the strands that have contributed to the crisis in governance weighing upon democracies is no easy task. One factor has been the digital revolution.

These developments have changed the way in which politics is conducted, they have changed the nature of political parties, and they have changed the methods of political communication.

They have weakened the traditional media and threatened their business models. On the other hand, it can be seen that media systems have been opened up to a wider range of people with a wider range of views than those reflected in the traditional media. A revolution has been wrought by the digital media. It is not going too far to suggest that these developments pose for governments more difficult challenges than did the invention of the printing press centuries ago.

At the same time the development of social media platforms such as Facebook, Twitter, YouTube, Reddit and many others have provided the opportunity for the expression of unmediated opinions with no fact checking. This provides the opportunity to express extreme views and conspiracy theories with no accountability for the consequences. The gatekeepers have gone.

New Zealand learned of these dangers during the terrorist attack by a lone gunman in Christchurch on March 15, 2019. The attack killed 51 Muslim people worshiping in mosques at Christchurch and injured many more.

This led to the Christchurch Call in which Prime Minister Jacinda Ardern combined with other foreign leaders to encourage the social media platforms to remove the images uploaded to Facebook by the terrorist depicting the carnage he had wrought. The tragedy has been carefully analysed by a Royal Commission whose report was released on 8 December 2020.

Other features of the digital revolution unfolded in the saga of the Cambridge Analytical/Facebook data breach and the scandal that ensued with its use in the Brexit referendum in the United Kingdom. There were also alleged social media activities by Russian intelligence agencies to influence the outcome of the election in the United States in 2016.

The new media’s increased capacity to promote conspiracy theories through the Internet in which social media became “a breeding ground for fanaticism, authoritarianism, and nihilism,” in the words of Jill Lepore in her magisterial history of the United States entitled These Truths.

The development of the Internet was thought to have provided new opportunities for connection and engagement with the traditional political processes, enlivening them and promoting a sense of real engagement with politics and decision-makers. Certainly, some of this has taken place. Many public authorities engage in consultations with the public through the Internet and social media platforms.

How the digital media will influence politics in the long term cannot yet be fully known. But there can be little doubt that political decision-makers and the institutions of government are profoundly affected by these changes. New means are available for promoting ideological goals. New means are available for influencing political decision-makers. Truth does not always prevail in these engagements.

Now it seems more difficult to know what information to believe and what to discount. Voters are easily confused and do not know what to believe. Rumours are spread frequently through these platforms with deliberate political purpose. Group attitudes and voting preference can be manipulated by algorithms. Against such developments the traditional protections provided in New Zealand by the Electoral Act 1996 are largely impotent. Bad information can be spread, and people make up their own minds what to believe, and the facts tend to be discounted.

What is to be done?

New Zealand stands against the trend of democratic decline. The general election in October 2020, the year of Covid-19, returned a majority single party government under the leadership of the Rt Hon Jacinda Ardern for the first time since the Mixed-Member Proportional system of election law began in 1996.

Since Covid-19 arrived strong restrictions have been imposed by the government on many personal freedoms, for example orders to stay at home and not go out for a significant period, to combat the virus. Yet the Prime Minister and the Labour Party won a handsome political victory in the October 2020 general election, in particular it would seem for a successful set of policies that largely kept Covid-19 out and the death rate low, compared with almost every other country.

There is no apprehension in New Zealand that Covid-19 restrictions could became a permanent part of the constitutional landscape in New Zealand. Nevertheless, the dangerous anti-democratic trends that have emerged in other countries could arrive here in the fullness of time, in part due to social media and the digital revolution.

A re-examination of the intellectual foundations upon which the New Zealand system rests could be helpful. Looking to the future we do need to understand that democracy can easily be blown off course. Division and polarisation, once they occur, can morph into authoritarian or autocratic government and fan social division.

The recent developments among democracies with whom we often compare ourselves need to be taken seriously. While New Zealand does tend to stand out as a beacon of democratic hope, we need to be mindful of destructive tendencies that have emerged elsewhere. These tendencies have been enabled by the digital revolution.

Above all there must be trust in Government and its institutions by the people on whose behalf it makes decisions. Democracy is a fragile flower and needs to be carefully nurtured, watered and weeded if it is to thrive. A renewed commitment to democracy in an increasingly uncertain world should start with education at all levels. People need to understand a number of basic concepts that may be insufficiently traversed currently in schools or in the basic public law courses.

I am asking for a broader approach to an understanding of constitutional law in New Zealand and a different appreciation by the legal profession of the elements contained in the existing system.

This is linked to a related plea for a more intense and comprehensive education in civics in New Zealand schools. By that terms I mean “citizenship education.” It is especially difficult at law school to teach public law to students who have little grasp of their country’s own politics and history. To survive and participate in a democracy political literacy is necessary. That entails understanding the New Zealand system of government and how to hold it accountable.

We need to concentrate upon the health of our New Zealand institutions, New Zealand politics and New Zealand problems. The example of the two major Anglophone democracies to which New Zealand historically has related do not offer the comfort that once they did.

We must be cautious in looking to either the United States or the United Kingdom as we have customarily done to burnish our New Zealand democracy. We must pay attention to our own history and traditions and develop them further. We must consider our own geographical space and what that means for our national interests. We need to look at the consequences of colonisation. We must examine the place of the promise made in the Treaty of Waitangi to Māori and why progress has not been more noticeable.

And it is to our own history we need to look to fashion remedies for the problems we now have. That case argues for increasing the level of general education about how the New Zealand government works and the level of political literacy in the population in order to strengthen support for democracy. The blessings of a liberal democracy are substantial, but they can easily slip and slide away. We should not be romantic about democracy. It has many weaknesses which is why it has to be kept in a constant state of repair.

Implications for New Zealand’s Foreign Relations

There are serious implications for New Zealand in the trends that exist globally around democratic decline. A resurgent China seems to be flexing its soft power and influence, as well as increasing its hard power. It appears to be intent upon playing a more active international role than before. This suggests that clashes between China and the United States may emerge. New Zealand has vital national interests wrapped up in these developments.

The existence of the state tells us where public law begins. And it suggests what comes first, it must be international law. How states regulate their relations with one another remains a vitally important subject for our future despite the retreat from international cooperation that has occurred in recent times.

New Zealand is a small country of five million people remote from other countries and separated by vast areas of ocean. It is also a country that relies heavily on international trade for its livelihood. With a vast coastline it is not an easy place to defend in the case of hostilities. As a result of these and other factors, a rules-based system of international law and treaty arrangements rank as issues of critical importance.

New Zealand has forged a strong independent foreign policy, tested at times by the consequences and fallout from the now bi-partisan anti-nuclear policy. It will be important to avoid being caught up in any great power rivalry that may emerge. New Zealand must talk quietly, because it does not carry a big stick.

Clearly the United Nations Organisation is not functioning in an optimal manner and it has been resistant to reform. This is discussed in a recent Discussion paper from the New Zealand Centre for Global and Studies and the United Nations Association, authored by Colin Keating, a former New Zealand Ambassador to the United Nations and Dr Kennedy Graham.

They make the case for urgent and extensive reform of the United Nations. They are concerned international organisations are “increasingly ineffective in resolving the challenges of the modern world.” And there has been an erosion of support for these organisations from key countries.

Two recent scholarly works have struck me as important here. The first is David Shambaugh’s 2021book Where Great Powers Meet – America and China in South East Asia. This book argues that comprehensive competition exists between the United States and the People’s Republic of China. This competition plays out over diplomacy, commerce, security, intelligence ideology, values, science and technology. The book examines the implications.

The issues are analysed in the context of South East Asia and the 10 ASEAN nations. Clearly South East Asia is a region of considerable importance to New Zealand. The book concludes that the rivalry remains fluid and may develop differently in the future. The author offers four scenarios:
1. Further band wagoning toward China
2. Continuing Soft Rivalry and Competitive Coexistence
3. Hard Rivalry and Polarization
4. More Neutral Hedging.
What happens in the future will have consequences for New Zealand.

The second book is Joseph Nye’s book Do Morals Matter? Presidents and Foreign Policy from FDR to Trump published in 2020. The book makes the case for United States diplomacy to engage its moral compass. It warns against populist policies. In this respect it is combatting a well-established idea that morality does not really figure in foreign policy. It is what works and what helps the country. Some would say, echoing Machiavelli, that the end justifies the means. The Trump presidency revived an interest in the question of what is a moral foreign policy. Nye argues it is a complex process of weighing three factors: intentions; means; and the consequences of the decision.

In an engaging analysis of the morality of the decision-making of all the presidents in the period from FDR to Trump, Nye provides rankings of their performance and plots the ups and downs of morality in American foreign policy during the period. Domestic public opinion comprises an important ingredient of the equation. Foreign policy is not the same thing as human rights policy; the former involves many trade-offs.

Nye warns of the economic importance of great power shifts – the rise of Asia in general and China in particular. The other driver is technology developments with increased economic, political and ecological interdependence. It is remarked that we may be at the end of Western led globalisation and a US led global order. The critical issue Nye sees lies in the need to cope with the rise of China sensibly and not to over or underestimate Chinese power. It is important, he says, for the US not to get trapped into over-reacting to the increased economic clout of China.

The geopolitical future is unclear. Whether a new global hegemon can emerge remains unknown. Meanwhile while democracy continues to be unfashionable in some quarters, New Zealand needs to be on its guard. We do not want current developments to signal an end of the golden democratic weather. Rising levels of nationalism will not help. Nor will identity politics. New Zealand will require diplomacy of the highest quality to navigate through the challenges of a changing global order.

The inaugural Foreign Policy Speech of the Minister of Foreign Affairs, the Hon Nanaia Mahuta, to the Diplomatic Corps at Waitangi on 4 February set out the approach of the government.

As the first indigenous Minister of Foreign Affairs in New Zealand she likened the tasks of diplomacy to those of the Treaty. She said “The principles of partnership and mutual respect embodied in the Treaty provide a foundation for how New Zealand conducts its foreign policy.”

The speech set out with clarity the Government’s aim and priorities including critical relationships:

● The Trans-Tasman relationship
● The Pacific and the promotion of regional stability
● The ten Asian countries
● The United States
● China
● Canada
● Europe.

There was a strong emphasis on supporting and strengthening international institutions including the UN, WTO, WHO and UNCLOS. New Zealand recognised its “unique and independent identity.”

“As an indigenous Foreign Minister, however I’m looking for mature relationships,acting on the values that define who New Zealanders are and creating space to, at times, agree to disagree on.”

This indicates a desire to continue a strong, independent foreign policy that could maintain New Zealand’s democracy in good heart in future. I look forward to seeing the results.

Thank you.