Hope in Chch rebuilding, ethical human rights despite all attempts to crush human potential

international | rights, freedoms and repression | opinion/analysis Wednesday May 09, 2012 17:41 by Anthony Ravlich - Human Rights Council (New Zealand) anthony_ravlich at yahoo dot com 10D/15 City Rd., Auckland City, New Zealand (0064) (09) 940 9658

An ethical approach to human rights

An ethical approach to human rights, development and globalization to replace neo liberalism is seen as the way to address lack of open government, many human rights omissions leading to mass neglect and the suppression of 'bottom-up' development in New Zealand. The mass purging of 'tall poppies', the 'crushing and isolation' of those at the bottom of the social scale and terrible social outcomes for many children were seen as a consequence of the hegemonic ambitions of a bi-cultural bureaucratic elite wanting to ensure no bottom-up challenges to top-down control.

Hope in Chch rebuilding, ethical human rights despite all attempts to crush human potential.

Anthony Ravlich
Chairperson
Human Rights Council (New Zealand)
10D/15 City Rd.
Auckland City.
Ph: (09) 940.9658

A private member’s amendment bill proposes that the New Zealand Bill of Rights Act 1990, passed by a conscience vote of only 36 per cent of MPs in August 1990, and ‘by and for’ a left-minority, now be entrenched by requiring 75 per cent of MPs to agree to any change.

The private member’s bill seeking entrenchment of the status quo is the New Zealand Bill of Rights Amendment Bill, co-authored by David Clendon and Keith Locke (now retired) of the Green Party, will make it far harder to include the many human rights omissions (New Zealand Bill of Rights Amendment Bill, Green Party, http://www.greens.org.nz/bills/new-zealand-bill-rights-amendment-bill ).

Amnesty International (America) describes all the omissions: “The New Zealand Bill of Rights Act 1990 (BORA) did not have protected legal status, which allowed for the possible enactment of legislation contrary to its provisions. The BORA did not incorporate all the rights provided in the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights (Annual Report: New Zealand 2010, Amnesty International (United States), http://www.amnestyusa.org/research/reports/annual-report-new-zealand-201... )”. Also, some omitted human rights are recommended for inclusion by the NZ Human Rights Commission (see below).

That the bill of rights was ‘by and for’ a left-minority is apparent. The CommoNZ Parliamentary Database of ‘conscience votes’ shows that 36 per cent of parliament passed the Bill of Rights, 30.1 per cent were against and 33 per cent were absent.

I came across the above statistics by accident. In 21 years of promoting human rights, also reading the academic literature, I have never seen these figures before. I sent them to nearly every MP and received 13 responses with no one challenging them. (A full list of the voting patterns of MPs on the Bill of Rights, database updated on July 30, 2009, can be found on the following link http://commonz.wotfun.com , just enter the New Zealand Bill of Rights Act 1990 and press search).

Of the 36 per cent of parliament who voted for the bill of rights all came from the Labour Government (62.3 per cent of its MPs voted in favor) as well as two Act Party members who were former Ministers in the Labour Government (also Roger Douglas, who provided the neo liberal economic dimension, Rogernomics, voted for the bill of rights).

My work shows that the major social problems are directly related to the human rights omissions in the bill of rights which is greatly underestimated (see section below on ‘A powerful not a weak bill of rights’, also submission to UN, ‘New Zealanders must ‘speak out’ about omitted rights or be reduced to ‘numbers’’, http://www.guerillamedia.co.nz/content/new-zealanders-must-speak-out-abo...).

Typically, in my view, neo liberal States use mass neglect, by human rights omissions, rather than the direct violence of authoritarian regimes to instill fear in the population and ensure compliance.

The huge social problems include many children abused and neglected, those at the bottom of the social scale ‘crushed and isolated’, a mass exodus overseas including many of the ‘best and brightest’ and many other disturbing social statistics – a number worse than other countries (see ‘New Zealand social statistics – too toxic for the young’, http://www.guerillamedia.co.nz/content/nz-social-statistics-too-toxic-young, ).

In my view, there would have been far more ‘bottom-up challenges’ to ‘top-down control’, perhaps even a national uprising, if the country had not been so successfully purged of its ‘best and brightest’ while ‘isolating and crushing’ the potential of those of the latter who remained in the country (see section on crushing human potential, below).

The ‘best and brightest’ would have been the most articulate in ‘speaking out’, have the intellectual capacity to stand for or support a better plan such as human rights, or organize a bottom-up challenge.

The country was 'dumbed down', in my view, to ensure no bottom-up challenge which might slow the hegemonic ambitions of a ‘bi-cultural’ bureaucratic elite supported by like-minded bureaucratic elites around the world.

The bill of rights permitted social class discrimination which allowed the neo liberal emphasis on the human rights and development of the middle class, professional sector and Corporations (promising ‘trickle down’ which did not occur) rather than addressing the most serious violations, often found at the bottom of the social scale, which human rights is meant to do.

This neo liberal middle class focus, following the very discriminatory human rights agenda with its parallel economic dimension, Rogernomics, meant that those at the bottom were subjected to extreme top-down containment rather than being helped to having their human rights violations addressed.

Such neo liberalism requires mass conformity to execute – anyone who raises their head above the parapet is quickly isolated.

In addition to much production being done in China and India, meaning few opportunities for small entrepreneurs in New Zealand, the effect has been to purge the country of its the ‘tall poppies’, crush individual potential and consequently any possibility of ‘bottom-up’ challenges to ‘top-down’ control. While the mass exodus from the country continues (see section on crushing human potential below).

Such extreme top-down control required by neo liberalism also seems compatible with Maori ‘tribalism’, based on whakapapa, and the Green Party Charter based on ‘limited resources’ and redistribution of the wealth (see The Green Charter, http://www.greens.org.nz/charter) (see section on ethical human rights)..

Those that bother to give the bill of rights any thought are usually told how weak it is legally and their focus is directed to its effectiveness in the courts - only very rarely, apart from the NZ Human Rights Commission (see above) and Amnesty International (US, (Annual Report: New Zealand 2010, Amnesty International (United States), http://www.amnestyusa.org/research/reports/annual-report-new-zealand-201... ). see below), will anyone in the establishment, including MPs, talk about the omissions.

But rather than in the courts it is its cultural impact which, in my view, has had such a devastating effect on the country (see section on cultural impact below).

The amendment bill appears to be an attempt to pre-empt the outcome of the Key government’s constitutional review, including whether the Treaty of Waitangi should be the foundation of a New Zealand Constitution as well as bill of rights matters, due for completion in mid-2014.

The Amendment bill wants to retain the status quo but the review could decide to include children’s rights, equal rights and possibly include non-discrimination on the grounds of social origin as recommended by the NZ Human Rights Commission (Human Rights in New Zealand 2010, New Zealand Human Rights Commission, http://www.hrc.co.nz/human-rights-environment/human-rights-in-new-zealan... )

My research, although not in depth, shows that ‘human rights’ in English Law enacted in New Zealand predated the Treaty of Waitangi by 23 days so, historically, human rights rather the treaty should be the foundation of a future New Zealand Constitution which is presently the subject of a constitutional review due to be completed mid-2014 (see section on the Treaty of Waitangi).

Also, Asian discrimination now seems to be emerging as a social problem and the Human Rights Commission in the Race Relations Report 2012 states it wants to ‘actively focus on inclusion in all aspects of New Zealand life as a means to break down discrimination against Asian New Zealanders’.

But the affirmative action for Asians, generally acknowledges as high achievers, recommended by Race Relations Commissioner, Joris de Bres, I would see as more of an insult than a help (see section on Asian discrimination).

Entrenchment was not cited as one of the ‘key changes’ proposed by the Green Party member’s amendment bill but was seen as necessary. The amendment bill states: “Because the Bill of Rights is an Act of fundamental constitutional importance, this Bill will also entrench its provisions so that these cannot be amended or repealed by a simple majority of the House”.

Rather the key changes proposed involve ensuring members are ‘better informed about rights issues’ and to provide a new remedy of a declaration of inconsistency which the courts can make for legislation ‘that is inconsistent with the Bill of Rights’.

As support for the latter, the amendment bill cites the recommendations of the United Nations’ Human Rights Committee which stated that New Zealand ‘should strengthen the current mechanisms to ensure compatibility of domestic law with the International Covenant on Civil and Political Rights’.

However, what the amendment bill omits - which surely must have been deliberate (see below) -is that since 1993 the UN committee has asked New Zealand on three occasions to include the human rights which have been omitted from the covenant, but which successive governments have ignored. The recommendations are as follows:

1) 1995: “The Committee recommends that the State party take appropriate measures to incorporate all the provisions of the Covenant into domestic law” (CCPR/C/79/Add.47; A/50/40, paras. 166-191, 3 October 1995);

2) 2002: “The State party should take appropriate measures to implement all the Covenant rights in domestic law” (CCPR/CO/75/NZL, 7 August 2002);

3) 2010: “The Committee reiterates its concern that the Bill of Rights Act 1990 (BORA) does not reflect all Covenant rights………..The State party should enact legislation giving full effect to all Covenant rights” (CCPR/C/SR.2711 and 2712, 25 March 2010 )

[Also, see section on human rights omissions below]

As stated above if the amendment bill’s proposed entrenchment of the present bill of rights succeeds it will seriously impede human rights development by making it far harder to include the many human rights omissions.

As stated above the NZ Human Rights Commission indicates that the exclusion of non-discrimination on the grounds of social origin (social status at birth) is of concern. The latter allows social class discrimination and discrimination on the grounds of socio-economic status (wealth).

These forms of discrimination permitted the neoliberal focus on the human rights and development of the middle class, professional, Corporate sector (with a promise of ‘trickle down’ which it is generally acknowledged failed) whereas human rights is meant to address those suffering the worst violations (which is the ethical approach, see below).

The amendment bill does have an entrenchment alternative to 75 per cent of parliament being required to change the bill of rights and that is if it ‘has been carried by a majority of the valid votes cast at a poll of electors in both the general and Maori electoral districts’.

However, apart from whether this is democratic or not, it is hard to see how this could happen unless the people, both Pakeha and Maori, received a prolonged period of human rights education however it would be remarkable if this was to occur, because, as stated elsewhere, section 5(a) of the Human Rights Act 1993 which requires human rights education has never been funded according to the NZ Human Rights Commission.

Crushing Human Potential

That the ‘best and brightest’ continue to leave New Zealand in large numbers are indicated by the most recent statistics (including ‘brains’ and brawn’):

“Some 5,000 departures in the month of March left a net loss across the Tasman of 3,928 last month, according to Statistics New Zealand.
“That took the annual net loss to a record 39,456, with 53,237 departures in the year ended March31.
“That’s continued a trend of record annual outflows to Australia since November 2011, the department said” (‘New Zealand exodus to Australia continues in March’, Paul McBeth, BusinessDesk, April 24, 2012).

Also, I strongly suspect that the considerable increase in the use of pharmaceuticals is to help people cope with the suppression of their potential i.e. to remain in a state of dependency and ‘arrested development’ unable to help themselves.
A recent news report stated: “Tough economic times may be hitting the government in the pocket in many ways - but not when it comes to spending on prescription drugs.

Health Minister Tony Ryall has revealed spending on pharmaceuticals increased by $180 million over the past three years.
Last year, three million people were prescribed more than 40 million subsidized treatments, a 16 per cent increase from 2008 (‘Govt spending more on pharmaceuticals’, Cassandra Mason and Newstalk ZB, April 13, 2012).

That the human rights omissions have been so very effective in purging New Zealand of its ‘tall poppies’ and crushing the potential of those who remained (described below) with many ending up in mental hospitals, on the streets and often to be the parents of children subjected to high levels of abuse and neglect that New Zealanders it is now rated the most the peaceful country in the world.
.
This is indicated by the “Global Peace Index’ which ranks New Zealand in 2010 as the world’s most peaceful nation, for the second year running (Vision of Humanity, World News, 8 June 2010, http://www.visionofhumanity.org/news/nz-is-worlds-most-peaceful-nation-a... ).

That only a small number of discontented would have been left in the country who were articulate and politically aware enough to engage in any ‘bottom-up’ challenge can be seen from the survey findings of Kea New Zealand ‘Every Kiwi Counts 2011’. According to the on-line survey of over 15,000 New Zealanders living offshore:
• Compared to on-shore New Zealanders in the 2006 Census, the overseas Kiwis surveyed are about seven times as likely (34% v 5%) to have a post-graduate qualification and almost three times as likely (31% v 11%) to have a Bachelor’s degree;
• Only 1% of overseas Kiwis say they have no formal qualifications, compared with nearly one quarter (24%) of New Zealand residents who say the same.

Similarly, the following confirm the above and show how extreme New Zealand was in purging its ‘tall poppies’:

An OECD report in 2005, ‘Counting Immigrants and Expatriates in OECD Countries: A New Perspective’, stated that both New Zealand and Ireland had the highest percentage, 24.2 per cent, of its highly skilled (i.e. a tertiary education) leaving their countries

.A World Bank study in February 2010, ‘The Economic Consequences of the Brain Drain of the Best and Brightest’ in February 2010 described New Zealand, one of five countries chosen for the study, as ‘the OECD country with the highest tertiary brain drain rate’

New Zealand Ministry of Education research, entitled ‘Beyond Tertiary Study’, states: New Zealand had lost 35 percent of its PhD students overseas. It stated: “The results showed that for those domestic students who last studied in 2003 and achieved their doctorate, around 65 percent were employed in New Zealand four years after they last studied. This was lower than for students who last studied at masters (72 percent) and bachelors (75 percent) level” (Post doc, ‘Do People with doctoral degrees get jobs in New Zealand post study’, Dr Warren Smart, Ministry of Education, September 2011, www.educationcounts.govt.nz )

.The ‘big picture’ of the purging of home-grown intellectual talent can be seen on the map ‘Migration and the Brain Drain Phenomenon’ shows that New Zealand falls into the category ‘more than 20%’ share of a countries nationals with a university education who live in (another) OECD country’, http://www.oecd.org/document/40/0,3343,en_2649_33935_39269032_1_1_1_1,00...

The above ‘big picture’ indicates that the ‘brain drain’ does not just apply to small countries like New Zealand, which sometimes it is claimed, but also large countries in Africa, as well as Iran, the Philippines, Madagascar, as well as Great Britain, including Ireland
.
Also, that the ‘brain exchange’ i.e. incoming highly skilled immigrants, rather than a ‘brain drain’ argument of Treasury researchers is disingenuous because recent immigrants take a long time to adjust to a new country while those born here have developed strong attachments, long experience etc. so are more likely to fight for the country (see discrimination towards Asians below).

In addition, it is frequently said that New Zealanders (i.e. ‘brains and brawn’) leave for higher salaries overseas but this may well not apply to the ‘best and brightest’. A World Bank’s study which includes New Zealand, ‘The Microeconomic Determinants of Emigration and return Migration of the ‘Best and Brightest’ – Evidence from the Pacific’ concluded:

‘…..we find that narrow measures of income gains or economic incentives for migrating play a very minor role in determining which of the highly skill migrate and return……the current migrants in our survey offer suggestions more closely linked to improving the career opportunities rather than to simply raising salaries..” (The World Bank Development Research Group, John Gibson, Waikato University, and David McKenzie, World bank, June 2009, http://www-wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/2... ).

Consequently, it was positive to hear the recent remarks of David Shearer, the new NZ Labour Party leader: “The brain drain to Australia is "a real challenge" to which governments in New Zealand must respond, ….Shearer has told a trans-Tasman forum in Sydney (‘Brain drain to Australia worries NZ’, AAP April 13, 2012).

A powerful not a weak bill of rights.

The effect of the bill of rights, and therefore its omissions, are greatly underrated, in my view, because the public, at least the small number who are aware of the subject, are led to believe it’s effectiveness only relates to its ability to protect fundamental freedoms in the courts and are usually told how weak the bill of rights is legally.

But in a human rights world, and because New Zealand has always upheld human rights, the bill of rights, which all public bodies must abide by (see below), has considerable moral force.

Rather than its impact in the courts it is its cultural impact on society where the bill of rights, because its many omissions has resulted in the gross neglect of many, has had severe social consequences as evidenced by the social statistics (see ‘New Zealand social statistics – too toxic for the young’, cited above).

The bill of rights effectiveness in the courts is described as a side-issue - rather it was really concerned to make a major cultural impact, gross neglect of many due to the omissions, through parliament, the bureaucracy, universities, other public bodies charged with its implementation, increasingly extending to the private sector. It involves the constant undermining of individual worth and freedoms.

Rather than being a ‘weak’ document the following shows how powerful it actually is:

1) Under Section 7 of the bill of rights the Attorney General is required ‘to report to Parliament where Bill appears to be inconsistent with Bill of Rights’.
While parliament is sovereign and the bill of rights is able to be trumped by ordinary statute in twenty years only 19 bills have been passed by parliament against the advice of the Attorney General.

Simon Power told the UN Human Rights Committee in 2010: “Thus far, 49 bills had been found by the Attorney-General to be inconsistent with the Act. Of those bills 19 had been enacted as introduced, 9 bills had been enacted after being amended during the legislative process to address the Attorney-General’s concerns, and 21 had not been enacted” 16 March 2010?.

While the above Green member’s amendment bill confirms this: “A recent analysis suggested that since 1991 more than 20 Bills have been passed without identified inconsistencies being removed”.

2) Sir Ivor Richardson, President of Court of Appeal from 1996-2002, when discussing the cultural effects of the bill of rights said that ‘litigation plays an important lesser part in assuring compliance with basic legal standards..’and ‘the Bill of Rights has had a major but less publicized impact on the regular functioning of government…’ and also ‘…which cannot be overemphasized, is that all governmental agencies, including local government agencies, are required to build Bill of Rights standards into decision-making at all levels. So that wider impact affects day to day administration and policy development within government”

Furthermore, he describes how bills of rights have changed from acting as a restraint on the powers of the State to protect individual freedoms to being used to capture the private sector.

He states: “Historically bills of rights were viewed as restraints on the powers of the state. But developments in the last 20 to 30 years have required reconsideration of that narrow focus. Erosion of the welfare state, the world wide trend towards privatizing and contracting out various activities, the expanding strength of multi-nationals and national corporations far beyond state boundaries, mobility of capital, and investment flows in the electronic age — they have changed the landscape and led to an increased focus on the application of the Bill of Rights to private entities (2004, 10, Canterbury Law Review 259, http://www.nzlii.org/nz/journals/CanterLawRw/2004/10.html )

3) Elections New Zealand states: “While the Bill of Rights Act 1990 may provide weaker constitutional protection than Palmer wanted, its impact has been significant on the behaviour of both governments and the courts. Its power has come from its persuasive force. Governments want to avoid passing new bills that conflict with the Bill of Rights Act 1990. As a result, the provisions of the Bill of Rights are taken into account when policy is drafted. Its impact therefore is strong, but largely invisible to the public. Similarly, the courts have been receptive to interpreting new legislation in a way that complements, rather than conflicts with, the Bill of Rights” (Elections New Zealand, Civil and Political Rights in New Zealand, http://www.elections.org.nz/maori/ntkm-democracy/rights-in-nz.html.).

4) Also, Geoffrey Palmer, the architect of the bill of rights, stated that ‘a Bill of Rights provides a set of navigation lights for the whole process of Government to observe’ (15 Years of the NZ Bill of Rights: Time to celebrate, Time to Reflect, Time to Work., Petra Butler, p2, (http://www.docstoc.com/docs/40709134/RS%C2%A0OF%C2%A0THE%C2%A0NZ%C2%A0BI...).
While in July 2002, Mr Caughley, New Zealand’s representative, told the UN Human Rights Committee, who were reviewing New Zealand’s human rights record: “The Bill of Rights is a 'road map' for public agencies: "All agencies of the Government were required to act in accordance with the BORA"(Mr Caughley (New Zealand), Human Rights Committee, seventy-fifth session, summary record of the First part (Public) of the 2016th meeting, 10 July 2002).

As stated above s7 of the bill of rights requires the Attorney-General to report to parliament on inconsistencies but the human rights omissions would be overlooked. And this may seriously affect the culture of parliament.
The former Minister of Justice, Simon Power, who also said that ‘I have always told myself I would leave politics before the idealism left me’, stated in his valedictory speech on 5 October 2011: “There are many debates that Parliament does not want to have…: abortion, adoption law, children's rights, and sexual violence issues. I don't share this timid view” And he added: “The truth is, if we don't have those debates here, where will we have them?” (‘Ethical human rights likely to be many children's and freedom's last hope in New Zealand’, kiwi.kids.org.nz, http://www.indybay.org/newsitems/2012/02/26/18708196.php )

When questioned by the UN Committee about the omissions New Zealand sometimes argues that the human rights omissions are covered by other legislation. Former Minister of Justice, Simon Power, told the UN Human Rights Committee: “Where certain Covenant rights had not been directly included in the Bill of Rights Act, they had been given effect by other legislation and the common law” (Summary record, 2696th meeting of the UN Human Rights Committee, CCPR/C/NZL/Q/5/ Add.1, 15 March, 2010).

However, that ordinary law is far less effective than constitutional law was indicated when Ireland’s human rights record was discussed at the United Nations.
Last October the Irish Minister for Justice, Alan Shatter, when answering questions about Ireland’s human rights record at the UN Human Rights Council in Geneva recognized that ordinary law proved insufficient to protect children’s rights.

Mr Shatter reaffirmed an "absolute commitment" to hold a referendum next year to enshrine children's rights in the constitution. "We accept that the HSE [Health Service Executive] has failed to deliver adequately their statutory obligation to ensure children's protection," he said, adding that a proposed single new agency would improve the situation (‘State questioned on human rights’, Ruadhan MacCormack, in Geneva, Michelle Stein, October 6, 2011, (see description of the HSE at the end of the article), http://www.irishtimes.com/newspaper/breaking/2011/1006/breaking11.html ).

Human rights the foundation of a future Constitution.

As stated above the purpose of the amendment bill may well have been to pre-empt the outcome of the Key government’s constitutional review (due to be completed in mid-2014) which includes whether the Treaty of Waitangi should be the foundation of a future New Zealand Constitution.

The goodwill shown by New Zealanders to Maori seems quite apparent but I am strongly of the view that this can be taken too far.

Accommodating ‘tribal’ Maori definitely should not extend to compromising one’s human rights beliefs which, in my view, would be the case if the treaty becomes the foundation of a future New Zealand Constitution.

If the Treaty of Waitangi becomes the foundation of a future New Zealand Constitution it would, in my view, entail an utterly fraudulent abuse of human rights and would be a disaster for New Zealand.

My work already shows that the human rights omissions were designed to be compatible with a collectivism which denies many individuals their core minimum human rights in the interest of elites.

This ‘tribalism’ is in direct opposition to the collective human family envisaged by the Universal Declaration of Human Rights where the emphasis is on respecting individual human rights.

The omissions in the present bill of rights permits such tribalism although it is cunningly concealed in human rights terminology.

And the consequences of this ‘tribalism’ is utterly brutal, most particularly for Maori - the social statistics, which involve the violation of many core minimum human rights, are very clear on this.

The Treaty of Waitangi as the foundation of a future New Zealand constitution would mean, in my view, that New Zealand will quickly descend into a social abyss.

Human rights development e.g. the inclusion of the omitted human rights, would virtually come to a halt. New Zealand would be ‘human rights in name only’.

It is because of the possibility that aberrant States might fraudulently abuse human rights in this way that the last article, Article 30, in the UDHR states:

“Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”.

Consequently if a complaint was lodged with the UN Human Rights Committee under the Optional Protocol to the UN Covenant on Civil and Political Rights (see Article 5(1)) I cannot see how it would fail.

In my view, if the amendment bill is passed into law and entrenches the present bill of rights it would, even if the globally dominant neo liberal ideology is superseded, continue to ensure compatibility with Maori ‘tribalism’ (and the Green Party Charter, see above) and serve, very largely, in my view, the interests of the ‘bi-cultural’ bureaucratic elite.

Human rights certainly seems side-lined in the Key Government’s Constitutional Review. The Constitutional Advisory Panel to oversee the review consists of 12 appointees whose biographical information show none have had a human rights background ( Media Release: Constitutional Advisory Panel named, 4 August 2011, Human Rights Network, New Zealand).

Also, an Independent Maori Constitutional Working Group, convened by Professor Margaret Mutu (Ngati Kahu) and its Chairperson is Moana Jackson (Ngati Kahungunu/Ngati Porou), was set up.

According to Jackson: "It works quite independently of the Constitutional Review proposed by the Crown and will attempt to initially promote widespread discussion among all Maori over the next twelve months followed by wider community sector
discussion says".

And Jackson adds: "The issue is not how the Treaty might fit into a constitution but how a constitution might be based upon the Treaty," (Media Release: ‘Independent Constitutional working group’ 5 August 2011, Human Rights Network, New Zealand
http://www.facebook.com/notes/peace-movement-aotearoa/independent-maori-... ).

But to my knowledge Maori are not being informed of the benefits that would accrue to them if the omitted human rights were included in New Zealand’s human rights law. These omitted human rights would automatically be included in the Treaty of Waitangi.

As would be expected, if you believe in the Universal Declaration of Human Rights (UDHR), the inclusion of the omitted human rights would of great benefit to both Maori and Pakeha.

Fighting for ethical human rights i.e. the inclusion of the omitted rights and ensuring ‘survival rights’ and ‘self-help rights’, would, in my view, help set many Maori (and Pakeha) free – from the streets, crime, drugs, dependency, and enable them, with greater independence, to aspire to small business (made extremely difficult because of tribal attachments, in my view).

That many Maori (and Pakeha) appear to be operating well below potential seems apparent. Maori are worse off - a number completely crushed by the discrimination of their own people (whakapapa) as well as Pakeha (social class discrimination) – rarely ever admitted, of course - and wander the streets of the city seemingly aimlessly. In my view, they would not have stood a chance.

And (if one should be surprised) there is strong anecdotal evidence that many ordinary Maori have benefited little, or not at all, from the treaty settlements.

And that many are not waiting around for any share of the compensation is indicated by one in six living in Australia (see Race Relations in 2011, cited above, p81). As with Pakeha there is likely to be many ‘tall poppies’ amongst them who could have helped take Maori and New Zealand forward.

The inclusion of the omitted rights, and interpreted ethically, would, for example, enable greater bottom-up development enabling Maori to reach their full potential as well as having a ‘voice’ of their own for the poor in the mainstream media i.e. the inclusion of the individual and collective rights to economic and social development would be included in the bill of rights as well as the prohibited ground of social class discrimination (which also allows the mainstream media to discriminate), as well as including non-discrimination on the grounds of birth (which includes descent i.e. family lineage or whakapapa).

An important historical fact which I discovered but, as is very likely the case with nearly all other New Zealanders, have never heard mentioned that the English laws, including ‘imperial laws’ the UK Bill of Rights 1689 and the Magna Carta 1297 (and also English common law rights), came into force in New Zealand, on the 14th January, 1840, predating the signing of the Treaty of Waitangi, on the 6th February 1840, by 23 days ((English Laws 1908, No.55, http://www.enzs.auckland.ac.nz/docs/1908/1908C055.pdf ).

The above imperial laws are still in effect in New Zealand (see Imperial Laws Application Act 1988).
Consequently, historically, human rights were the foundation of New Zealand not the Treaty of Waitangi as we are being constantly told.

The Universal Declaration of Human Rights is often described as ‘A Magna Carta for all humanity, Human Rights for All’ (United Nations, www.un.org/rights/50/carta.html ).

The Magna Carta is said to establish the rule of law. Fiona Crichton states: “Heralded as the beginning of English constitutional law…..it deals with the relationship of the Crown and the Church, and the Crown and common people” (The New Zealand Legal System, Fiona Crichton, Auckland District Law Society Inc., p17, http://www.adls.org.nz/information-for-public/legal-system ).

Also, the Bill of Rights 1689 is a predecessor of the United States Constitution, the United Nations Universal Declaration of Human Rights and the European Convention on Human Rights (Bill of Rights-1689, Australianpolitics.com, http://australianpolitics.com/democracy-and-politics/bill-of-rights-1689 ).

Crichton states that Bill goes further than the Magna Carta: “The bill went further than setting out the relationship of the Crown to parliament in that, in part, it identified the doctrine of parliamentary sovereignty” (The New Zealand Legal System, Fiona Crichton, Auckland District Law Society Inc., p17, http://www.adls.org.nz/information-for-public/legal-system ).

Finally, human rights not only predated the treaty in New Zealand but have always been a part of New Zealand’s constitutional law and it has been what the country has stood for domestically and in foreign policy and which many New Zealanders would have died for in times of war – how many would die for the Treaty of Waitangi?.

Affirmative Action for High Achievers

Another social problem more recently coming to light is Asian discrimination. The NZ Human Rights Commission is recommending a ‘focus on inclusion’ to help address growing discrimination towards Asians but, in my view, Race Relations Commissioner, Joris de Bres, would add ‘insult to injury’ when he suggests that this very high achieving group should receive affirmative action (see below).

One of the two priorities of the NZ Human Rights Commission with respect to discrimination is to ‘actively focus on inclusion in all aspects of New Zealand life as a means to break down discrimination against Asian New Zealanders and other minority ethnic groups” (Race Relations in 2011, NZ Human Rights Commission, Ch 4, p23, pub March 2012, Auckland, New Zealand ).

According to Race Relations in 2011, annual UMR Research surveys on perceived discrimination undertaken since 2001, ‘have consistently shown Asian people to be perceived as the most discriminated against’.
It states: “An average of around 75 per cent of survey respondents identified Asian people as suffering “a great deal” or “some” discrimination” (see citation above).

The Race Relations Commissioner, Joris de Bres, considers Asians should be given affirmative action.
He told the New Zealand Federation of Multicultural Councils in Wellington: “There are very few Asians on the boards of District Health Boards, not enough Asian teachers in our schools, not enough Asian local councilors community board members and Asian migrants continue to face discrimination in applying for jobs.’
Mr de Bres said that one of the organizations that has strongly focused on Asian recruitment over a recent years is the New Zealand Police…..All public agencies should be doing the same. Some private sector organizations, such as the major banks, have also reached out to Asian communities because it makes good business sense.’ (‘Asians face most discrimination in NZ – survey’, February 11, 2012 Source: ONE News).

But Asians are generally acknowledged to have a strong work ethic and are high achievers despite often being handicapped by having to learn English. For instance, they are by far the highest achievers when it comes to gaining university entrance at school.

In the Ministry of Education’s table of Highest Attainment of School Leavers (2009) it shows that those ethnic groups who reach university entrance level (or level 3 qualification or higher) are as follows: European/Pakeha, 49 percent, Maori, 20 percent, Pasifica, 25 percent, Asian, 65 per cent[my underline, emphasis].
(see Table 3.2.1, Education Counts, ch3 Indicators and Evidence, Ministry of Education, published September, 2010, http://www.educationcounts.govt.nz/publications/series/2523/82497/chapte... ).

It seems absurd that New Zealand may now provide affirmative action for perhaps its highest achieving group. Consequently, I see such affirmative action as being far more of an ‘insult’ than a help.

I consider the reasons for discrimination towards Asians would be very largely due to the many human rights omissions in the bill of rights.

Although the bill of rights contains non-discrimination on the grounds of race (s19(1), BORA) overall the omissions were devised, in my view, to crush human potential in ‘bi-cultural’ elite interests, so this could well have overridden non-discrimination – such discrimination, in my experience, being notoriously hard to prove anyway.

Consequently Asians could be seen as victims of the ‘anti-tall poppy’ culture a consequence of the mass conformity required to execute ‘bi-cultural’ discrimination on the basis of social class/whakapapa (see below) in a country where the concept of‘ ‘deserving’ is rapidly losing all meaning.

That I consider they were victims rather than directly targeted is because unlike the ‘tall poppies’ born in New Zealand it often takes a long time before Asians and many other recent immigrants to adjust - so being, naturally, reluctant to ‘speak out’ in a new country they pose less of a threat than ‘tall poppies’ born in New Zealand and are actually preferred by the State.

But claims made by bureaucrats or ‘captured academics’ that recent immigrants represent a ‘brain exchange’ to counteract concerns about the ‘brain drain’ is disingenuous because it fails to take into account that any political involvement and much original entrepreneurial activity (the Number ‘8’ wire) requires long experience and a knowledge as well as a strong attachment to New Zealand (see Glass,Hayden & Choy, Wai (2001),“Brain Drain or Brain Exchange?” Treasury working 01/22, http://www.treasury.govt.nz/publications/research-policy/wp/2001/01-22 ).

Ethical Human Rights, Development and Globalization

In my view New Zealand should, with the permission of the people, take a gamble on the ethical approach to human rights, development and globalization (I believe it will replace neo liberalism) which is simply based on the view that all should be ensured, at the least, their core minimum rights as contained in the Universal Declaration of Human Rights.

Essentially, at the very least, this would mean both being able to survive with dignity as well as having the added dignity of being able to help oneself. At present while both should be of equal status dependency, even though on benefits below the poverty line, is encouraged while helping oneself is severely discriminated against.

Both ‘survival rights’ and ‘self-help rights’ are reflected in the UDHR (Art 22) which states: “Everyone has the right to social security and is entitled to realization…..of the economic, social and cultural rights indispensible for his dignity and the free development of his personality”.

My book, ‘Freedom from our social prisons: the rise of economic, social and cultural rights’ (Lexington Books, 2008) was recommended on the United Nations website for two years and provides the basis of the ethical approach – see below for further articles.

Both the massive rebuilding following the tragic earthquakes in Christchurch as well as what I describe below as the New Zealand Tragedy are further additional very important reasons why the ethical approach should be adopted apart from simply being, in my view, the only way the aspirational UDHR can be realistically interpreted.

In the Auckland High Court in June 2010 I described what I considered to be a New Zealand Tragedy – many who were ‘crushed and isolated’ and later to showing up in the social statistics as high levels of mental illness and most likely it was many of their children that suffered very high levels of abuse and neglect. Included in this group of beneficiaries were also a number of ‘tall poppies’ – the ‘best and the brightest’ – from all social classes a number of whom would have subjected to extreme isolation and serious mental illness (see submission, ‘Freedom is not an impossible dream’ to Auckland High Court, www.hrc2001.org.nz , also see ‘Ethical human rights likely to be many children's and freedom's last hope in New Zealand’ http://www.indybay.org/newsitems/2012/02/26/18708196.php ).
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I hope to make sure the above-mentioned children, when they get older, know what the State and the Maori elite put their parents through – forgiveness is likely to be a major issue for these children as well as self-forgiveness for the parents.

Also, I consider many of these beneficiaries, which included ‘tall poppies’ from all social classes who did not join the mass exodus as well as many small economic and social entrepreneurs should be compensated for the brutal discrimination they were subjected to over about 20 years – this is where affirmative action permitted by the bill of rights (Section 19(2), BORA) should and, in my view, is meant to apply not as at present for those higher on the social scale including the ‘bi-cultural’ elite chosen, as evidenced by the human rights omissions, largely according to descent not merit.

However, many ‘tall poppies’ joined the mass exodus overseas. The country was 'dumbed down', in my view, to ensure no bottom-up challenge which might slow the hegemonic ambitions of a ‘bi-cultural’ bureaucratic elite supported by like-minded bureaucratic elites around the world.

I consider it very important that the truth of the tragedy is admitted publicly to enable forgiveness. Also, unless the truth is told so the fear that pervades the country is overcome it will likely seriously slow progress.

The confusion described in the media reports of the court case (see at the end of submission to the Auckland High Court above) with respect to the lack of human rights education which I raised in my court appearance was because I was under pressure at the time and forgot why I had raised it but on reflection it was because I had stood for the Human Rights Party whose platform was an ethical approach to human rights and I considered that if New Zealanders had been educated in human rights the party would have gained many more votes.

The presiding High Court Judge, Lyn Stevens (now on the Court of Appeal) believed my account asking me why I had not informed New Zealand society earlier and also how the media reports (see end of the above submission to Auckland High Court) ignored the New Zealand Tragedy (‘The New Zealand establishment closes ranks as a major human rights tragedy unfolds’, http://www.guerillamedia.co.nz/content/new-zealand-establishment-closes-... ).

I attributed what happened in the New Zealand Tragedy to the large number of omissions in the New Zealand Bill of Rights Act 1990 most particularly non-discrimination on the grounds of social origin (social status at birth) (and this would also include the exclusion of non-discrimination on the grounds of birth which includes descent, family lineage or whakapapa).

Also, there were many other exclusions such as economic, social and cultural rights as well as the right to human rights education, while required under section 5(a) of the Human Rights Act 1993 according to the Human Rights Commission it was never funded.

New Zealand’s report, ‘Questions Posed on Treatment of Maori, Asylum Seekers, Human Trafficking’, to the UN Human Rights Committee was headed: Delegation: “We Are Determined, as a Country, to Make Human Rights Relevant in the Daily Lives of New Zealanders and of Citizens around the World”

This was reiterated twice in the body of the report and Simon Power, the former Minister of Justice, stated:
“In concluding the two-day discussion, Mr. Power emphasized that the challenge for his and any Government was to ensure human rights were pertinent in the daily lives of citizens and, in doing so, bolster the application of internationally-agreed rights instruments, including the Covenant. New Zealand must work hard so that its citizens did not believe such treaties -- and discussion of their application -- were the remit of high academic and international bodies” (Human Rights Committee Concludes Consideration of New Zealand’s Fifth Report; General Assembly, HR/CT/721, 16 March 2010 ).

However, to my knowledge, since the above statements were made and despite the present review no such education is taking place.

I also consider Christchurch would benefit considerably from this ethical approach to human rights. I am very concerned at the effects of the human rights omissions on the rebuilding of Christchurch already having to deal with serious aftershocks - see my article, 'Top-down bureaucratic neo liberalism is threatening the Christchurch rebuild - an ethical human rights is required', http://www.guerillamedia.co.nz/content/top-down-bureaucratic-neo-liberal... , anthony ravlich's blog, guerilla media ). I am presently starting to get some influential people on LinkedIn and Twitter watching the progress of the ethical approach.

The exclusion of non-discrimination on the grounds of social origin permitted social class discrimination and also socio-economic (i.e. wealth) discrimination which both strongly privileges a left minority (really affirmative action permitted by section 19(2) of the bill of rights) while also accommodating the neo liberal focus on middle class human rights and development and the Corporations.

The omissions which resulted in extreme top-down control was also compatible with Maori ‘tribalism’ as well as the Green Party charter based on ‘limited resources’ and 'redistribution of wealth’ rather than growing human knowledge as well as the wealth – it’s the growth of human knowledge that really concerns these ideologies, in my view.

These ideologies also accommodate collectivism based on social class/socio-economic (wealth) discrimination (neo liberalism), Maori based on discrimination with respect to birth which includes descent, family lineage or whakapapa, while the Green Charter has also shown it accommodates collectivism based on social class discrimination.

The mass conformity required to implement this very discriminatory human rights agenda meant that the ‘tall poppies’ were discriminated against e.g. ‘over qualified’, ‘does not fit in’, ‘rocks the boat’, ‘trouble’, with help only directed at those who, for one reason or another, did not help themselves – many may have realized that they would get better treatment if they simply stayed in a state of dependency.

Under the dominance of the collective this meant that individual ‘freedom of thought, conscience, expression, belief’ which enable the search for truth and reaching one’s full potential was marginalized leaving those in the establishment with little more than ‘collective thought, collective conscience, unable to ‘speak out’, and having to abide by the very discriminatory bill of rights’ (also see ‘Fear of Freedom: collectivist bill of
rights reducing New Zealanders to dependency’, www.guerillamedia.co.nz/content/fear-freedom-collectivist-bill-rights-re...).

Many within these tribal collectives, in my view, would suffer from ‘arrested development’ able to do little more than blame others for their plight and are unwilling to look at themselves. I consider these tribal collectives need to look at their own short comings, which I consider are numerous, but that adopting ethical human rights would help them considerably in this.

Ethical human rights is not anti-collectivism – the human family is a great collective – but when it involves discrimination which deprives individuals their core minimum rights then it fails to uphold the Universal Declaration of Human Rights which emphasizes individual rights (while also requiring the latter to exercise duties to the community).

The above discriminatory ideologies serve the collective dominated by a bureaucratic elite (a bi-cultural bureaucratic elite in New Zealand’s case) who are, in turn, supported by like-minded global bureaucratic elites (see ch 5 of my book, ‘Freedom from our social prisons: the rise of economic, social and cultural rights’, Lexington books, 2008, which was recommended on the UN website for about two years).

Whereas in ethical human rights the emphasis is on the individual who, at the very least, is able to survive with dignity while having the added dignity of being able to help themselves while exercising duties to the community i.e. the human family [this sentence has been rewritten to better reflect human rights terminology].
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While neo liberalism, ‘tribalism’, or the Green Charter may pay lip service to self-help but in reality small economic and social entrepreneurs and their new and radical ideas which would grow human knowledge and wealth and take society forward (as well as provide much employment) are severely suppressed. Although these ideologies accommodate improvements to the old ideas of existing Corporations, albeit with an occasional show of defiance.

Ethical human rights emphasizes bottom-up development and maximizing individual potential so new, radical ideas can be found to address major social problems and grow the knowledge necessary for greater space travel necessary for humanities future survival.

The rebuilding of Christchurch following the massive and tragic earthquakes could lead the way for the rest of New Zealand.

The above New Zealand Tragedy may well also have global implications e.g. the largely social class discrimination in Britain and I consider the mainly socio-economic (wealth) discrimination in America both would have the same effect – the ‘crushing and isolation’ of many leading to major social problems as well as the relegation of individual freedom of thought, conscience, expression, belief and therefore the seeking of truth and reaching full potential to the margins of society or forcing many overseas.

With the ethical approach I consider the world now has not only a far more principled approach than neo liberalism but, as my work is showing, it is also realistic - not only will the ethical bottom-up emphasis on development create the new/radical ideas necessary to address major social problems (and environmental problems), help humanity's survival in traveling to other planets which in turn promises to considerably further the development of human knowledge as well as ensure a large supply of available resources. But also small/medium business will very likely considerably decrease unemployment.

In addition, because the ethical approach is non-political i.e. emphasizing the core minimums are provided rather than regime change, it offers a very realistic promise of huge reductions in military spending which will help considerably in paying for this ethical approach. This is in addition to the savings made in having to contain discontented internally who under the ethical approach would have a ‘realistic hope’ (Also see our council’s submission to the United Nations, ‘New Zealanders must ‘speak out’ about omitted rights or be reduced to mere numbers’, www.hrc2001.org.nz ).

The ethical human rights emphasis on ‘survival and self-help’ rights promises huge savings in military spending which in turn would help pay for the former:

(1) A Press Release by the United Nations on 1 September 2010 was headed: " Millennium Development Goals Moral Imperative, but Largely Off-track for Poorest, Least Politically Powerful People, Says Declaration at DPI/NGO Conference - Achieving Millennium Development Goals Would Cost Less Than One Tenth of Annual Global Military Spending, Round Table Told [their underline]" ( Press Release, Department of Public Information • News and Media Division • New York, NGO/708, PI/1958, http://www.un.org/News/Press/docs/2010/ngo708.doc.htm ).

(2) Also the World Bank estimates that for less than 4 percent of global military spending, poverty and hunger could be halved. But instead military spending grows, 5.9 percent in 2009' ( cited in Can we Disarm to Develop? Disarmament Times Fall 2010, http://disarm.igc.org/images/PDF/dt.2010.3.mdgs.pdf ).

(3) In addition, in 'Global Day of Action on Military Spending' on 'Military Spending vs. Millennium Development Goals' states: …'all eight MDGs combined cost less than a fifth of yearly military spending' ( MDGs are the Millenium Development Goals, November 18th 2010, http://demilitarize.org/military-spending/military-spending-vs-millenniu...).

All countries are expect to adhere to the core minimums therefore enabling fair competition rather than China and India having the advantage gained by exploitation of cheap labour.

Also, under the ethical approach regionalization e.g. the East Asia regional bloc, would not be necessary – it would just be an added layer of bureaucracy and greater social control at the expense of freedom.

While further research is required I cannot, at this stage, see any incompatibility between the ethical human rights approach and parliamentary sovereignty. We could have both if this is chosen by the people.

The ethical approach would require a very firm ‘human rights bottom-line’ – the core minimum obligations of the State with respect to both civil and political rights and economic, social and cultural rights which would be entrenched and made supreme law.

While parliament would retain sovereignty when dealing with the higher levels of human rights and this would reflect the views of the political (or ‘ethical’) parties chosen by the democratic majority.

As described with the present bill of rights the inclusion of all the omitted rights and ensuring the core minimums it is very likely to be the cultural impact rather than its effectiveness in the courts that will have the major influence on New Zealand society.

Also unlike neo liberalism the ethical approach requires duties on the part of individual and groups in society. Article 29 (1) of the Universal Declaration of Human Rights: “Everyone has duties to the community in which alone the free and full development of his personality is possible”.

I consider an important duty, especially in a democratic society, is that the public need to be informed of important truths and this would ensure open government.