Towards decolonising constitutionalism

Abstract


 2016 saw the publication of two important, but fundamentally divergent, works on Aotearoa New Zealand’s constitutional arrangements. Sir Geoffrey Palmer and Andrew Butler’s A Constitution for Aotearoa New Zealand and He Whakaaro Here Whakaumu Mō Aotearoa, the 2016 report of Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation. While Palmer and Butler’s vision is one of reforming and strengthening our current Westminster constitutional system, Matike Mai’s is one of transformational, creative change, in which there is room for tino rangatiratanga—substantive self-determination—to be realised. Here, after situating this work theoretically, I explore and contextualise these two texts as they represent, respectively, a modern ideal-typical Pākehā position on constitutionalism in Aotearoa New Zealand, and a critical, Māori constitutional discourse from which this orthodoxy can be interrogated. Through this comparison, I argue that Pākehā constitutional orthodoxy continues to talk past Māori constitutional aspirations because it fails to account for its own ideological and ontological biases, representing itself as occupying a space of reality and neutrality, rather than domination. Because this orthodoxy perceives tino-rangatiratanga claims through this lens of self-affirming bias, it perpetually misapprehends and mischaracterises these claims— as either seeking mere property and management rights (these being already constitutionally provided for), or, if something more substantial, as unrealistic, divisive, and extreme.