Monday, March 04, 2013

DOWN TO THE DOCTOR’S: An important constitutional

_McGrath001This week, Dr Richard McGrath has been sending out submissions…

This afternoon I sent the Libertarianz Party's submission to the Constitutional Advisory Panel, in the hope that its members will be swayed by its themes of limited government, equality and justice for all New Zealanders.

Without further ado, I reproduce it here:

To the Constitutional Advisory Panel

Introduction
This submission is forwarded on behalf of the Libertarianz Party, a registered New Zealand political party formed in 1995.

The Libertarianz Party says our country should have a written constitution protecting the equal rights of all citizens. Several years ago, a small working group of party members formulated a Constitution loosely based on that of the United States, with the errors fixed. An abridged version of the main parts of that document, its Bill of Rights and a Bill of Due Process, appears below.

But first, we make some general comments about the parliamentary and electoral systems, the Treaty of Waitangi, and our party's proposal for a constitutional republic.

General comments
Libertarianz supports the following changes to the current parliamentary and electoral systems:

  • Parliament should be limited to 100 seats in a House of Representatives, including the Speaker; but there should also be an upper house composed of 30 members.
  • The parliamentary term should be kept at 3 years, with dates fixed in advance and only changed in the event of a no-confidence vote or state of emergency, natural disaster, war or other calamity.
  • There should be a 10-15% tolerance for the size of electorates, with adjustments in electorate boundaries made only every 5 years in the interests of economy, with safeguards put in place to prevent political manipulation of electorate boundaries.
  • There should be no guaranteed minimum number of seats for the South Island; the number of seats should reflect population distribution.
  • There should be no guaranteed minimum number of seats for any race.  All race-based representation at all levels should be abolished, each individual having the same voting power regardless of skin colour or other accidents of birth. Thus, seats reserved for Maori should be dissolved at all levels.
  • Political parties should make their own decisions via their own rules and constitutions regarding members who 'party-hop.'  That is not a matter for the state.
  • All regulation of political-party funding should be abolished, thus respecting the rights to free speech and association.
  • The Treaty of Waitangi should be recognised as the basis for equal citizenship. All Treaty claims should be full and final, settled within a set finite period of time, with all tribunals and committees then disbanded permanently. No Treaty claim should take private property, nor impose any on-going financial burden on taxpayers and ratepayers.
  • The Treaty of Waitangi is neither sufficient nor appropriate nor ever intended to be the supreme law of the country, and the so-called “Principles” of the Treaty of Waitangi should be expunged from the law books as so much made-up manufactured nonsense.
  • The views of individual New Zealanders of Maori or other descent should be aired during any decision-making process through normal democratic means in the same way as New Zealanders of other racial and ethnic ancestry.
  • A written Constitution including a Bill of Rights, similar or identical to that proposed by the Libertarianz Party, should be the supreme law of the land—a constitution clearly delineating the rights to be protected, with all law past, present and future inconsistent with this Constitution struck down.
  • New Zealand should become a constitutional republic with an elected President.  

*    *    *

Proposed Constitution for a Republic of New Zealand

A. Preamble

We, the citizens of New Zealand, hold these truths to be demonstrable in reality: that because the mind is our species' means of survival and full flourishing, human beings are individually possessed of certain inalienable rights, which are the rights to life, liberty, and the pursuit of private property and happiness; that to secure these rights, governments are instituted among people, deriving their just powers - and only such powers - from the consent of the governed; that all laws legislated by governments must be for the purpose of securing these rights; that no laws legislated by government may violate these rights; that all citizens are equal before such laws; and that whenever any government becomes destructive of these rights, it is in rebellion against its citizens, who may then remove it and institute new government.

Therefore, the citizens of New Zealand, in the name of that which is the glory of man - his sovereign, rational mind - do solemnly declare that our country is henceforth free; that we are absolved from all further allegiance to the Dominion of New Zealand and its government, both of which are hereby dissolved; that we do by this and the associated documents presented here establish instead the Republic of New Zealand; that these documents supersede all previous constitutional and quasi-constitutional documents, including the Treaty of Waitangi; that the laws of this country shall be based on a single moral premise, which is the expression of the afore-mentioned rights: no person or group of persons may initiate the use of physical force, or its derivative, fraud, against any other person or group of persons, and the only justification for the use of force is self-defence against those who initiate it; that the government of this country shall have no other function than to formulate, enact and uphold such laws and to secure and glorify the supreme values of reason and freedom in human affairs.

B. The Bill of Rights

Article I - Free Speech and Privacy

The government shall make no law abridging the freedom of speech, of the press, of electronic or optical communication or of any other form of communication or expression; or restricting the right of an individual to petition the government for a redress of grievances; or respecting an establishment of religion or prohibiting the free or non-exercise thereof; or requiring an individual to possess the means of identifying himself, unless he may be employed on the public payroll, or may be casting his vote, whereupon identification shall be required in the polling booth only.

Article II - Right to Self-Defence Against the Initiation of Force or Fraud

The right of an individual to preserve, protect and defend his life, liberty and property, or that of any other party subject to the initiation of public or private force or fraud, and to organise himself into private militia for these purposes, shall not be infringed.

Article III - Right to Repudiate a Government in Rebellion

The right of an individual to organise the overthrow of a government initiating force against its citizens shall not be infringed; and a member of the Armed Forces, private militia, intelligence, or police may disobey any order which conflicts with the rights and liberties eternally enshrined in the Bill of Rights and Bill of Due Process.

Article IV - Property Rights

The right of an individual to be secure in his person, home, papers, effects, reputation, intellectual property and other properties, against unreasonable searches and seizures or arbitrary arrest and detention, shall not be infringed, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized; and no member of the Armed Forces, militia, intelligence or police shall be quartered in any house or property without the consent of the owner; and no individual shall be deprived of rights, liberties or properties without due process of law; nor shall private property ever be taken compulsorily for public use.

Article V - Right of Self-Ownership

The government shall make no law restricting the right of an individual to take his own life or to have his own life taken, if sufficient evidence of his informed consent has been provided in advance or at that time; and it shall make no law requiring an individual to be medically treated or undergo medical experiments, unless he presents an objective threat to the rights and liberties of other individuals, whereupon he may be confined at home, or if he still presents a threat, confined elsewhere or treated, but not experimented on, in an hospitable place; and government shall make no law restricting the right of an individual to ingest substances or to participate in practices which may or may not cause ill health or injury, provided such actions contravene none of the rights and liberties of other individuals eternally enshrined in the Bill of Rights and Bill of Due Process.

Article VI - Free Association

All interaction between adult individuals shall be voluntary and any voluntary association of individuals shall be deemed to have the rights of the individuals comprising it.

Therefore the government shall make no law restricting the right of an individual peaceably to assemble or to join together in marriage or friendly association; or requiring an individual to join, contribute to, be registered or be enrolled with any association; or establishing a monopoly and otherwise restricting the number or nature of businesses; or requiring an individual to join any branch of the Armed Forces, private militia, intelligence or police.

And while the government itself shall discriminate only on the basis of merit, it shall make no law restricting the right of an individual to discriminate on any basis whatsoever.

Article VII - No Compulsory Taxation

The government shall extract no compulsory tax or involuntary contribution of any kind from any citizen for any purpose whatsoever.

Article VIII - Free Trade, Investment and Migration

The government shall make no law regulating commerce, investment or migration; but the government may regulate the immigration of any individual who has aided or given comfort to the enemy in any war or revolution respecting the establishment of the Constitution.

Article IX - Sound Money

The government shall make no law in respect of the establishment of a central bank, monetary authority or currency of exchange, or to otherwise require the coining, printing or use of money; and any action by the government to purchase debt or equity of companies or trusts, or to purchase or speculate in land, buildings and other properties located in the Republic is expressly prohibited.

Article X - Rights Held in Trust

Nothing in this Bill shall be construed as permitting activities which can be shown beyond reasonable doubt to destroy the potential of a child to become an adult with full rights and liberties eternally enshrined in the Bill of Rights and Bill of Due Process. Subject only to this constraint, parents and legal guardians shall have full freedom to raise their children as they see fit; equally, they shall be deemed responsible for the actions of their children.

The age of independence shall be deemed by law, but the courts may deem an earlier age on application of the child, if the child can demonstrate its independence.

C. The Bill of Due Process

Article A - Treason

Treason against the citizens and permanent residents of the Republic shall consist only in levying war against them, or in giving aid and comfort to an enemy which shall pose an objective threat.

Article B - Arrest and Detention

Every individual shall enjoy, and shall be informed of, the right to know the reason for his arrest or detention; to remain silent; to consult and instruct a lawyer of his choice before questioning without delay; to have a lawyer of his choice present with him during questioning; if he cannot afford this lawyer, to have one appointed for him; to the writ of habeas corpus so that a court shall determine the validity of his arrest or detention without delay; to have the assistance of counsel and interpreters for this determination; to be released immediately if his arrest or detention is not valid; and if he is arrested or detained, to be charged promptly or to be released immediately.

Article C - Charge and Depositions

Any individual who is charged with an offence shall enjoy and shall be informed of the right to know in detail the nature and cause of the charge without delay; to consult and instruct a lawyer; to have the assistance of counsel and interpreters for his defence; to have sufficient time and facilities to prepare a defence; and to be brought before a court without delay.

And no individual shall be held to answer for an imprisonable offence unless a High Court judge decides there is a case to answer.

Article D - Criminal and Civil Procedure

In all criminal prosecutions and civil suits, the accused or defendant shall enjoy the right to be presumed innocent until proven guilty or found against; to a fair, speedy and public trial or case, at his election, excepting a trial of impeachment, before either a judge or an impartial jury preferably of the locality wherein the breach, liability or offence shall have been alleged; to be informed in detail of the nature and cause of the allegation; to be presented with the evidence against him; to have the assistance of counsel and interpreters for his defence; to have sufficient time and facilities to prepare and present a defence; and to be present at his own trial or case.

Article E - General Procedure

No individual shall twice face a hearing, inquiry, civil suit or criminal prosecution for the same breach, liability or offence; nor shall face a hearing, inquiry, civil suit or criminal prosecution for a breach, liability or offence which at the time of its alleged commission was not a breach, liability or offence; nor shall be compelled in any hearing, inquiry, suit or trial to be a witness; nor shall be prevented from requesting a witness or examining any witness whose evidence has been brought before the court; nor shall be prevented from appealing a determination, judgement, award, conviction or sentence in a higher court or requesting a judicial review.

And a jury shall be directed that it shall find, in favour of or against and innocent or guilty, the defendant and the accused in accordance with the rights and liberties eternally enshrined in the Bill of Rights and Bill of Due Process; and a judge, jury, commissioner or authority shall be provided with a copy of the Constitution and any supporting documents whatsoever.

Article F - Private Prosecutions and Civil Suits Involving Government

All civil suits involving the government shall be heard in the same manner as civil suits between individuals, and all criminal prosecutions brought by an individual, including a prosecution against the government, shall be heard in the same manner as criminal prosecutions brought by the government; and the right of an individual to bring or defend these proceedings shall not be infringed.

Article G - No Excessive Bail, Excessive Fines or Cruel and Unusual Punishments

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments, including the pain of death, inflicted.

Article H - Asset Forfeiture and Victim Restitution

Private and public property shall not be deemed the proceeds of crime unless the criminal burden of proof is met, nor shall be deemed the award of costs or damages unless the civil burden of proof is met; and the proceeds of crime shall be returned to the victims from whence they came or alternative but equivalent restitution enforced.

Article I - Finding of Fact and Mistake

Judges may repair to the traditional precedents of common law, equity and admiralty law where appropriate and create new precedents, provided all these precedents shall be consistent and shall not conflict with the rights and liberties eternally enshrined in the Bill of Rights and Bill of Due Process; and no fact tried by a judge or jury shall be otherwise re-examined in any court of the Republic than according to these rules; and if an individual shall mistakenly be convicted by an error of fact, he shall speedily and appropriately be either pardoned by a Commission of Inquiry, without restriction on his right to a retrial, be retried or have his conviction overturned, and a Commission of Inquiry shall be established to investigate the miscarriage; and he shall receive public compensation without delay.

Article J - Rights Suspended

Every individual who shall be lawfully incarcerated or declared legally and medically insane shall enjoy only those rights and liberties eternally enshrined in Articles III, IV, V, VII, IX and X of the Bill of Rights and in the Articles of the Bill of Due Process; and in respect of this individual, the government shall make no law requiring the recording or disclosure of the contents of any communication and restricting the right of the individual to encrypt this communication, excepting communication to, from and within his place of incarceration; and no law restricting the right of the individual to petition the government for a redress of grievances; and no law respecting an establishment of religion or prohibiting the free or non- exercise thereof or requiring the observance of any religious custom, including that of any indigenous or local culture; and no law requiring the individual to join any branch of the Armed Forces, private militia, intelligence or police.

And any individual declared legally and medically insane may make a final appeal against this declaration before a panel of experts, which shall be composed of five individuals drawn from reputable institutions.

*    *    *


Notes on the Libertarianz Party's proposed Constitution
  • It is intended that this document would stand alone as the Constitution for New Zealand. All laws past, present and future incompatible with it could be challenged and struck down, and replaced only by laws compatible with the Constitution (or not replaced at all).
  • The purpose of the Constitution is to protect New Zealanders against encroachment on their rights and liberties by the Government. It limits the functions and roles of the Government and defines its relationship with the citizens it represents and serves.
  • Further to this last point, this Constitution actually empowers New Zealanders to resist Government when it does violate their individual rights and liberties.
  • It permits such actions as assisted suicide, voluntary euthanasia and substance use by adults by upholding the concept of self-ownership.
  • Free speech and action by New Zealanders would be implicitly restricted by the need to respect other people and their property. Fraud, assault, defamation and other crimes would remain illegal.
  • Taxation would be outlawed under this Constitution as a violation of property rights. Voluntary funding of legitimate government activities such as upholding the Rule of Law would, however, be not only possible but - in our view - likely to occur, without any need for the coercive extraction of wealth.
  • Similarly, eminent domain or the confiscation or nationalisation of private property would be expressly forbidden.
  • The Reserve Bank would be dissolved under this Constitution, with no further government manipulation of the currency and no further printing of money tokens (i.e. legal tender not backed by assets such as precious metals). All remaining government-sourced currency would have to be redeemable in gold, silver or some other suitable commodity.
  • The Government would not be allowed to burden current or future generations of New Zealanders with debt; it would have to operate strictly within its budget.
  • Under the freedom of association clause, private discrimination, even on irrational grounds such as skin colour, would be permitted. Government departments would, however, be permitted to discriminate only on the grounds of merit.
  • Many of the clauses in the Bill of Due Process are long standing common law protections that already exist; this document explicitly lists and codifies them.
  • A restorative approach by the justice system is required. The death penalty is explicitly forbidden.
  • Protection for persons imprisoned or declared medically insane, via a robust review process, is strengthened.

*    *    *

I hasten to add that the Preamble in that submission was a toned-down version of the kick-ass original, which was less restrained in calling out New Zealand governments for their repeated human rights violations.

*    *    *

PS: There has been much media interest in resistance to tomorrow’s census, and last Thursday night I was interviewed by Vinny Eastwood who runs a radio show and posts his Skype conversations online. Apologies for the ums and ahs, but here it is.

See ya next week!
Richard McGrath
Leader, Libertarianz Party

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7 Comments:

Anonymous thor42 said...

Excellent stuff.

I really only disagree with this one statement -
"The Treaty of Waitangi should be recognised as the basis for equal citizenship."

I would argue that this statement is a bit "back-to-front".
I would put it like this -
"All citizens of NZ have equal rights, regardless of ethnicity, gender, etc etc....."

That way, your rights are still equal and explicit, but it leaves the nothing-but-trouble Treaty completely out of it.

IMO, the Treaty should have NO place at all in a constitution here.

3/04/2013 06:17:00 pm  
Anonymous Anonymous said...

There is a god quote about treaties which goes something like this, "Treaties, like virgins, nice to have." Of course once you've had them.....well...!

Best of luck with the Constitution though. It is better than what's out there at the moment.

Amit

3/05/2013 06:23:00 am  
Anonymous Anonymous said...

Ah, here it is. Correct quote is this. “Treaties are like roses and virgins: they last while they last”- President Charles DeGaulle

3/05/2013 06:27:00 am  
Blogger Konrad Kathan said...

This is a good start, but how about people who do not wish to participate in this government? How will they be treated?
Also, I must respectfully disagree that defamation is a crime, as ones reputation does not belong to oneself, but is only a representation of what other people think of one. Therefore the anti defamation law would try to control the thinking of others, not to mention infringing on the free speech rules.
Also how would the government be funded? If it is by donation what would happen if there are not sufficient funds to pay the salary of Govt employees?
What about arms? the right to bear and use in self defense? I only see the militia thing mentioned but nothing about ownership of weapons.

Well, just a few minor quibbles, but a good start on the road to anarchy!

Konrad

3/05/2013 10:35:00 am  
Blogger Richard McGrath said...

Thanks for the thoughtful response, Konrad.

"This is a good start, but how about people who do not wish to participate in this government? How will they be treated?"

As long as they didn't use force against anyone else, I don't anyone would mind.

"Also, I must respectfully disagree that defamation is a crime."

It would probably be a matter for the civil courts if one chose to prosecute - and it would be up to the complainant to prove damage was done.

"Also how would the government be funded? If it is by donation what would happen if there are not sufficient funds to pay the salary of Govt employees?"

Then the govt employees would have to earn a crust some other way. Remember the justice system would probably be a much smaller beast than the current one as most disputes could be settled without needing to use the official state courts, which would be run on a "loser pays" basis.

"What about arms? the right to bear and use in self defense? I only see the militia thing mentioned but nothing about ownership of weapons."

Appropriate self defence is permitted. Firearms aren't mentioned because people have an implicit right to own them. So implicit it doesn't rate a mention.

"Well, just a few minor quibbles, but a good start on the road to anarchy!"

Indeed, although our goal is the smallest possible minarchy.

3/05/2013 06:53:00 pm  
Blogger Konrad Kathan said...

Thanks for your reply Richard.

You are right about defamation... hadn't thought that one through completely...

Thanks for clearing that up, I was just a little confused about the document not mentioning arms, but you are right, I guess it includes anything really that can be used for self defense...

Well, I am an an-cap at heart, but if we can achieve the minarchy you propose here I will heartily cheer and help (the helping bit will happen anyway, irregardless of success, much easier now that I am settling down.)!

Konrad

3/06/2013 01:23:00 am  
Anonymous Tim Ng said...

Hello Richard. My reading of Section VII of the Bill of Rights precludes the use of fines altogether, as a fine could be considered an involuntary contribution. Hence should fines still be included in Section G of the Bill of Due Process?

3/09/2013 04:43:00 pm  

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