As we mourn the passing of one of the world’s greatest leaders, it is timely to recall what Nelson Mandela achieved by his actions in his homeland of South Africa.
As a result of the struggle that led to the end of apartheid South Africa was in the position of drafting a Constitution that had the advantage of reflecting a modern approach to matters that must be included in a Constitution. And it is significant that the South African Constitution begins with the words, “We, the people of South Africa, recognise the injustices of our past.”
The South African Constitution emphasises human rights and states clearly that “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including, race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
On the face of it South Africa will not have to engage in protracted constitutional debates such as those experienced in the United States in the 1970’s as to whether equal protection extended to women and today as to whether equal protection under the US Constitution includes LGBTIQ human beings.
In Aotearoa/New Zealand we do not have the ability for such debates because we have not gone down the path of supreme legislation in the form of a Constitution. The closest we have come is a Constitution Act that deals with the formalities of Government and the Executive and a Bill of Rights Act that identifies rights and freedoms and the grounds and areas of unlawful discrimination. The Treaty of Waitangi has its role but that has been limited by the individual Acts that have included reference to it.
The Constitutional Advisory Panel has paused its conversation but has done little more than reflect the submissions it heard. It is time now to seriously address what we set as our constitutional bottom lines and what we need to do to clarify who we are and what our basic rights are.
I would like to believe that as a Parliament we have come far enough in our development, beginning with the Treaty of Waitangi and our early involvement with the United Nations Universal Declaration of Human Rights and the ensuing Rights Covenants, to accept, as a first principle, basic human rights extended to all human beings. To a degree we recognise the importance of these matters but what we do not have is an overriding check to make sure our Parliament does not forget those rights that we have moulded and accepted as a basic part of our civilized society.
As a starting point we need to state clearly the position of Maori as the indigenous people of this country. Most people accept that but nowhere within our constitutional framework do we include that most basic fact.
It is time to seriously address why we have a Bill of Rights Act. The Act requires a report from the Attorney-General if a Bill is inconsistent with the Bill of Rights Act. In theory that seems laudable but there is no requirement for a Bill to conform. In fact it states specifically that a non-compliant Act cannot be struck down by the Courts. A proper constitutional framework would entrench those basic human rights that we have signed up to and ratified. And we would then not have Attorney-General reports that alert Parliament to non-compliance with our Bill of Rights Act and then get passed into law with the vote of the Attorney-General, such as the recent NZ Public Health and Disability Amendment Bill which removed a remedy for parents who cared for their adult disabled children.
Safeguards are never wasted. Ideally they would not be required. We do not need to keep having constitutional conversations. We need to recognise the status of Maori in order to underpin the Treaty of Waitangi provisions and to entrench those universal human rights that are internationally recognised as fundamental to a free and modern democratic nation based on the fact that all human beings are born free and equal in dignity and human rights.
My favourite Nelson Mandela quote which hangs on my office wall in Parliament is “It always seems impossible until it’s done”. I believe it is time for the development of a written constitution in New Zealand. South Africa’s written constitution was an eventual outcome of the dismantling of apartheid and the unifying process of the Truth and Reconciliation Commission.
What are our historical markers that signify the opportunity for such a development underpinned by basic human rights principles? It must be, for us, the conclusion of our Treaty of Waitangi historical truth and reconciliation settlement process which reconciles our colonial history and prepares us for a modern and new New Zealand where our indigenous peoples are recognised as having a special relationship with the lands and our natural environment. We must be aware and understanding of our history with a commitment to recognising the injustices of our past and having a Constitution that properly accords basic human rights the status that protects us all.
Let Mandela’s legacy inspire us. That is our challenge.