Let's assume the Maori Party really wants Hone Harawira gone. What then?
Now that the Maori Party has decided to take Hone Harawira's case to a full Disciplinary and Disputes Committee meeting, I've been doing some thinking about how things might play out from here.
Ideally, someone would pay me $25,000 for providing this service, but as it doesn't look like that's going to happen you can have what follows for free. However, bear in mind that advice given at no cost is worth every penny, and that I have no special knowledge about what actually is going on within the Maori Party.
That said, it seems to me there are five possible outcomes from the Committee process.
- The complaint is dismissed altogether. This seems to me the least likely result, given the investment that the party heirarchy has made in taking matters this far. If the complaint were now dismissed in its entirety, it would be the equivalent of an endorsement of Harawira's basic position and a repudiation of the existing leadership.
- The parties reach an agreement on the complaint, with some sort of apology on Harawira's part and a commitment from the rest of the Party's MPs to rebuild bridges. I guess this re-run of 2009 remains possible, but given the increasingly strong rhetoric from Harawira's corner I don't think it likely he is going to back down this time. After all, he not only thinks he is right, but that he is speaking for the bulk of the party membership - so exactly what is there for him to apologise for?
- The Committee recommends to the Party's National Committee that it issue a rebuke to Harawira, but nothing further. In other words, he gets slapped with a wet bus ticket. Again possible, but not only would it be an admission of weakness on the party heirarchy's part, it also would postpone the day of reckoning as Harawira continues to critique the party's actions.
- The Committee recommends to the Party's National Committee that Harawira be suspended from the Party, subject to future good behaviour. Two problems with this. First of all, it isn't clear that such a power to "suspend membership" exists under the Party Constitution. Possibly it is implied - if you can expel someone (see below) then you can put their membership on hold for a period. Second, it again postpones what may be inevitable. For if Harawira is true to his word, he will not stop the sorts of criticisms that he's made to date.
- The Committee recommends to the Party's National Committee that Harawira be expelled from the Party. It has the power to do so clause 3.7 of the Party Constitution: "The National Council may decline or cancel any membership that the Council believes does not meet the criteria outlined in clause 3.1."
As may be clear from the above, I think the fifth outcome increasingly is the most likely to occur, bar some major backdown from one side to the dispute. However, there is an immediate roadblock to any expulsion (or any other sort of action) actually taking place. Under the Party Constitution; "All decisions of the National Council shall be by consensus. (Consensus may be defined as a process of ‘whakawhitiwhiti whakaaro,' To arrive at an outcome at which those present, are accepting')."
And under cl.4.2(b), each electorate is entitled to place up to 4 members on the National Council. Now, I haven't been able to find a list of National Council members anywhere, but if Te Tai Tokerau does have up to 4 members on it, how likely is it they will agree to expel Harawira from the Party? And if they refuse to go along with this action, then under the Party Constitution the National Council cannot act.
So does that mean Harawira is safe? Well, maybe not. For one thing, the rest of the National Council may decide that due to "conflicts of interest", the Te Tai Tokerau electorate members may not participate in any decisions relating to Harawira. There is no specific provision in the Party Constitution permitting such a step, mind you, but perhaps one might get implied in so as to be consistent with "natural justice".
For another, cl.4.2(d) states that: "The management of the Māori Party, on behalf of the National Council, is authorized and determined by the National Executive." This smaller body "comprises [the] Party President; two Co-Vice Presidents (one tāne and one wahine) and two co-leaders (one female, one male)." Might this National Executive decide to exercise the National Council's power to expel as a part of its overall "management" of the Party?
Either step would be risky - it's the sort of procedural move that a court might get very interested in down the track. But let's assume for the moment some such means of bypassing any Te Tai Tokerau resistence is found.
For things only start to get interesting at this point. Assuming Harawira is unhappy about being expelled - in other words, let us take him at his word that he wishes to remain in the Maori Party - what then?
Well, one possibility would be to go to court and seek an injunction to prevent the expulsion on the basis that a breach of process occured. Both sides are acutely aware of this avenue - consider how Harawira is keen to decry the Party's failure to follow "natural justice", while the Party is just as keen to underline how careful it is being to abide by it. Oh, yes, and they are paying Mai Chen $25,000 to make sure they get it right.
My gut feeling is that legal action might not help Harawira much, based not only on previous precedent (Peters v Collinge and Roger Payne's various cases) but also on the very vagueness of the Constitution itself. In other words, this document is so full of general principles - and principles reflecting a Maori worldview at that - I just can't see a judge being prepared to step in and tell the Maori Party "sorry ... I know better than you do how these principles apply in this particular case."
An abuse of process is another matter - but because it isn't clear exactly what process will get followed, I can't speculate too much on that.
However, there's another path open to Harawira. Because under the Party Constitution, a person who is expelled from the Party "may appeal that decision at the next National hui of the party where the decision shall be final."
Now, under clause 7.1, the next annual National Hui doesn't have to be held until 1 November 2011. But under clause 8, "The [National] Council may call a special National hui at any time and shall, at the request of three electorates or by request of at least 200 financial members from each of three Electorates."
In other words, if Harawira is expelled, he only need find 200 supportive members in three electorates prepared to request a special National hui to consider his expulsion and that hui must be held. How, then, would that hui operate and how would the expulsion decision be considered at it?
Well, again the Constitution is really hazy on such questions. For one thing, it says nothing about how quickly such a special National hui must be called. For another, it says nothing about who is entitled to attend it. Is it all members? Is it only delegates; and if so, how are they selected?
Second of all, the Constitution states that decisions at an annual National hui (and so, by implication, a special National hui) "... shall be by consensus (as defined in 4.4 above)." Going back to clause 4.4, we find "(Consensus may be defined as a process of ‘whakawhitiwhiti whakaaro,' To arrive at an outcome at which those present, are accepting')".
If we take this literally, then it gives every Party member attending the National hui a potential veto over every decision at it. And in particular, it gives the Party leadership a veto over any challenge to their decision to expel Harawira from the Party. Which means the safeguard of appealing an expulsion at a National hui is pretty useless - you'd have to get the party leadership to admit they were wrong and agree with the rest of the hui to rescind the decision.
Unless, that is, natural justice again kicks in here. Because of this conflict, could it be argued that those involved in any decision to kick Harawira out of the Party are not permitted to participate in any National hui considering that decision? In which case, would the National hui have to occur without the National Council's
All of which is very, very messy. And likely to keep providing lots of grist to the news mills for the months to come.