Aotearoa (designer's view)
Since I was a child & discovered the Maori name for the land I was born in I've felt that it was the right name to use. People commonly referred to poor language use as `double-dutch'. Why could they not apply this traditional expression to the official name of the country? Why use 2 words in the name of a country when it's easier to use one - having a double name is just dumb. They knew it was dutch: Abel Tasman named it after a province in his home country of Holland. He expected the dutch to colonise it but that never happened, so there's no valid justification for continuing to identify this country as a new province of that country. It has bothered me ever since that my fellow countrymen & women remain too thick to figure this out. Hard to feel much pride in being a kiwi when they keep acting like morons! Stop indulging yourself in double-dutch bullshit, you out there!!
Now, a Maori chap recently reminded me that the Maoris use Aotearoa as the name of the North Island, whereas the South Island has a different Maori name. Maybe Stewart Island does too. So adopting Aotearoa as the name for this country would require a Maori consensus in favour of an innovative use of the name. Unless the Maori do actually have a name for the entire country that we have yet to hear, I advise them to adopt a both/and stance. Keep traditional usage for the names of each island, while advocating the 21st century usage of Aotearoa as also the name of our country.
The republican movement in this country remains trivial. I feel pretty lukewarm about it myself due to the fact that lousy role models are normally generated by republics. Presidents are rarely perceived to be statesmen and are usually little more than hired hacks serving those who own & operate the capitalist system. However the following analysis serves the purpose of outlining basic design considerations for transforming this country into a republic.
Now, a Maori chap recently reminded me that the Maoris use Aotearoa as the name of the North Island, whereas the South Island has a different Maori name. Maybe Stewart Island does too. So adopting Aotearoa as the name for this country would require a Maori consensus in favour of an innovative use of the name. Unless the Maori do actually have a name for the entire country that we have yet to hear, I advise them to adopt a both/and stance. Keep traditional usage for the names of each island, while advocating the 21st century usage of Aotearoa as also the name of our country.
The republican movement in this country remains trivial. I feel pretty lukewarm about it myself due to the fact that lousy role models are normally generated by republics. Presidents are rarely perceived to be statesmen and are usually little more than hired hacks serving those who own & operate the capitalist system. However the following analysis serves the purpose of outlining basic design considerations for transforming this country into a republic.
Reconstitute Aotearoa (written 1995, redraft 2011)
Progressive conservatives want to create a Republic of New Zealand. Anyone who doesn‘t like double-dutch would prefer a Republic of Aotearoa. An evocative name is more likely to inspire kiwi pride and be sustainable on the basis of solidarity with the tangata whenua than adherence to a moronic tradition. Why continue the pretence of a copy of an obscure dutch province? Better to go for the land of the long white cloud. People are more likely to be proud of the name of their country if it actually means something. Regardless, major constitutional reform is essential in the creation of any republic. This article reviews the constitutional evolution of New Zealand, and attempts to signal the salient features of our state structure to facilitate further evolution.
Aotearoans born prior to a decade ago lived in the constitutional state outlined below in scenario A, whereas due to the reconstruction engineered by Sir Geoffrey Palmer and effected by his government we are now living in the constitutional state described in scenario B. Names of acts of parliament have been italicised to reduce visual indigestion for the reader's benefit.
Here follows scenario A... All quotes are from Professor KJ. Scott's The New Zealand Constitution, 1962.
The constitutional framework of this country is derived from the last of the three constitutions enacted for New Zealand during the colonial period. An Act to grant a Representative Constitution to the Colony of New Zealand was passed in the British parliament in 1852, with its title amended in 1896 to The New Zealand Constitution Act, I852. lt came into effect in this country on 17/1/1853 by proclamation of the Governor. Our own parliament refers to this as the Constitution Act (see Interpretation Act, 1858, and Acts Interpretation Act, 1924). Reference to this act as `the Constitution' was normal in the earliest years of its use, but became rare after about 1860. It provided six provinces, each with territorial jurisdiction, elected legislature and executive, and defined the extent of central government control and jurisdiction over these. "It created a central legislature, the General Assembly, consisting of the Governor, an appointed Legislative Council, and an elected House of Representatives; and gave the General Assembly the power, subject to certain limitations, to legislate for the peace, order and good government of New Zealand."
Subsequent domestic legislation has substantially altered the government structure thus established. "The provisions for the election of members of the House of Representatives were replaced by New Zealand legislation in 1858, the provinces were abolished under a New Zealand statute passed in 1875.. and after 1893 only 21 of the original 82 sections remained in force." The Legislative Council was abolished in 1950. Britain had reserved the right to disallow acts of our parliament, and the power to amend the structure of government here was granted to our government in stages. "The General Assembly, being the creature of the Constitution Act, has only such powers as the Constitution Act gives it." Remarkably, "one section gives the Crown concurrent legislative power: section 71 empowers the Crown to issue letters patent giving Maori custom the force of law. This power has not been exercised.
One other section possibly restricts the powers of Parliament. This is section 58, which makes provision for disallowance. The section requires the Governor-General to transmit to the Secretary of State an authentic copy of every Bill to which he has assented, and empowers the Crown to disallow a Bill within two years. Since 1947 the Governor-General has failed to perform the statutory duty placed upon him by this section. It would appear that receipt of the authentic copy by the Secretary of State is probably a condition precedent to the exercise of the Crown's power of disallowance, and that accordingly disallowance is not at present possible."
"Under section 56 the Governor-General may reserve a Bill at his discretion" Considering the Governor-General makes all decisions on the advice of the ministers, it would appear that they have been routinely discrete in following this advice. Given the large number of laws enacted against the interests and will of the people by recent governments, it also appears that the occupants of the office have brought it into disrepute by refusing to exercise their freedom to choose to recognise and support the will of the people by reserving unpopular legislation. The collective will of the people is expressed more often via political polls and other media than elections, and polls that showed 90% opposition to state asset sales were clear evidence of the collective opinion of the electorate. Governors-General who failed to prevent such asset sales betrayed their responsibility to defend and protect the people's common interests.
"lt is generally true, though not logically necessary, that a document does not become known as `the Constitution' unless at least part of it is protected from amendment by the ordinary legislative process." This country began self- government without the power to amend its Constitution, and without even a ministry responsible to parliament, "responsible government was not introduced until the opening of the first session of the second Parliament in 1856."
New Zealanders sought more independence from the British empire, at first... "The New Zealand Constitution Amendment Act, 1857, enacted by the United Kingdom Parliament, conferred power to amend or repeal all but twenty-one sections of the 1852 Act, subject to the reservation of any Bill in which the power was exercised. In 1947 the New Zealand Constitution Amendment Act, enacted by the United Kingdom Parliament, conferred full powers of amendment on the New Zealand Parliament without any requirement as to reservation." These powers were granted by Britain in the Statute of Westminster 1931. "New Zealand had been the most reluctant of the Dominions when the Imperial Conferences of 1926 and 1930 had discussed the reform of the legal basis of the Empire." Lack of interest in extending independence was such that "New Zealand specifically requested the insertion of a provision that sections 2-6 of the statute were not to extend to New Zealand as part of the law of New Zealand until adopted by the New Zealand Parliament.. And since 1947 the New Zealand Parliament's reluctance to make constitutional changes has been shown by the fact that it has not yet tidied reservation and disallowance out of the Constitution Act. The record shows that in mag or matters the New Zealand Parliament has been reluctant to use its powers of constitutional amendment. The future is likely to be similar." No longer! See scenario B, below.
Entrenching law to provide a framework of democracy is sensible, provided a mechanism is incorporated that enables future amendments to be made whenever demand generates sufficient consensus. Those wishing to avoid constitutional reform are stuck with a democratic framework that is vulnerable to ad-hoc manipulation, because "there is no real doubt that a statutory provision that a section is to remain in force forever without amendment would not be legally effective." If Parliament passed legislation that "purported to amend or repeal an entrenched provision by the ordinary legislative process, and the resulting document purporting to be a statute were challenged in a court, the legal effectiveness of the entrenching provision would be decided." Obviously, therefore, a court would be more impressed by an extraordinary legislative process, and the framers of the Constitution of Aotearoa will need to include one. It would be feasible to activate the process via a majority vote in the House, but require a 75% vote to approve amendments. Some may argue precedent militates against a court finding against a purported act of parliament. In a 1954 case, the three Court of Appeal judges assessed "whether recent Parliaments had been validly constituted". They decided "it would not be competent for the court to question the validity of documents duly printed as Acts of Parliament." We appear to need a supreme court empowered to adjudicate such validity.
"As New Zealand has no `Constitution' adopted and amendable only by special procedures, there is no special constitutent (that is, Constitution-making and Constitution-amending) power as distinct from legislative power.
Constituent purposes are among the purposes for which legislative power can be exercised." There is "a way in which New Zealand could adopt a `written' Constitution under which the power of constitutional amendment could not be exercised by Parliament. If the New Zealand Parliament transferred its powers to a Constituent Assembly and at the same time abolished itself, and the Constituent Assembly thereafter chose to adopt a Constitution creating a Parliament with limited powers, then the new Parliament would have only such powers as the Constitution gave it." This signals our path ahead.
Also of constitutional status is legislation that constructs electoral representation. The Electoral Act 1956 contained entrenched sections constituting the Representation Commission, defining the electoral districts, the adult franchise, the secret ballot, and the life of Parliament. Some of our current constitutional law derives from other inherited statutes of the United Kingdom, such as the Habeus Corpus Act, 1689, some "is found instruments issued under the prerogative (that is, the Crown's discretionary authority), for instance the letters patent of 11 May 1917 and 18 December 1918 constituting the office of the Governor-General and the Executive Council. Some is found in instruments through which the Crown has exercised powers granted by United Kingdom statutes.. Some is found in instruments through which the Crown has exercised powers granted by New Zealand statutes.. Some is found in regulations issued by the Governor-General in Council, for instance the Electoral Regulations, 1957, issued under the Electoral Act, 1956. Some is found in decisions of the courts." In any reconstitution of this country such various strands must be examined for relevance, reformulated, and woven together. The various instruments may then perform together in new harmony, and we can envision this symphony of law providing a basis for the Republic of Aotearoa.
"New Zealand constitutional law is flexible, in the sense that it can be amended by Parliament by the ordinary legislative process. The only other country whose constitutional law is so flexible is the United Kingdom." Parliaments acted in recognition of their constitutional freedom. "It is true that until 1947 Parliament did not have plenary powers, but the limitations that existed on the powers of Parliament till 1947 do not appear to have affected the volume of constitutional legislation. Probably the only important constitutional legislation of the century, apart from legislation concerning the Legislative Council culminating in the Legislative Council Abolition Act, 1950, has been the legislation passed from time to time on the life of Parliament, and on the boundaries of the electoral districts, and the legislation of 1947 on the powers of Parliament."
"A Constitution is a body of rules determining or providing procedures for determining the organization, personnel, powers, and duties of the organs of government, and some of these rules are not rules of law. The term `conventions of the Constitution' is commonly used for the parts of the Constitution that are extra-legal". These include some of the most important parts such as the powers of Cabinet: "Cabinet derives its powers from convention." There are further good reasons to take such conventions seriously. "First, convention may operate to nullify a provision of constitutional law. Thus, convention has nullified the power of veto given to the Governor-General by the Constitution Act. Second, convention may transfer a lawful power from one person to another. Thus, the Governor-General is empowered by letters patent to appoint ministers, but by convention the persons he appoints are the persons nominated to him by the prime minister. Third, convention may supplement the law of the Constitution. Thus, the Constitution Act provides that the House of Representatives is to elect a Speaker, and convention determines the nature of the Speaker's duties, and requires him to discharge these duties in a non-partisan manner."
Convention may be all-powerful in dictating judicial outcomes. "In 1935 the Judicial Committee of the Privy Council felt called upon to consider whether it was itself a court.. Formally it is not a court with power of decision but a committee of the Privy Council with merely advisory functions. The committee decided that as it was staffed by judges and was guided only by legal considerations, and as its advice was invariably followed by the Privy Council, it was by constitutional convention a court. `But according to constitutional convention it is unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee, who are thus in truth an appellate court of law."' [source italics]
Some conventions are written, some not: "thus the conventions regarding the private interests of ministers are written in a report that was adopted by the House of Representatives in 1956, and some of the conventions on Commonwealth relations are recorded in the reports of Imperial Conferences and in the preamble to the Statute of Westminster. Again, law is usually precise, convention is usually imprecise. But the law on the interpretation of statutes is imprecise, and the convention that the Governor-General will appoint the prime minister's nominees to the Executive Council is precise. Law is seldom amended, convention is continually developing. But the salaries of minsters and other members of Parliament are reviewed after every general election, and the convention that the veto should not be employed has not changed in over two and a half centuries. Unlawful conduct is usually regarded as gravely reprehensible, conduct in disregard of convention as only mildly reprehensible. But it is not generally regarded as reprehensible when technically unlawful appointments are made for urgent reasons during a parliamentary recess and validating legislation is enacted during the next ensuing session of Parliament, and it was widely regarded as gravely reprehensible when the 1931 Parliament extended its own life."
Clearly governments are free to act in an unconventional manner in their approach to constitutional reform. "A single precedent creates a convention when the reason why it should be regarded as obligatory is clear.. A practice becomes a convention when it is recognized as such by the politicians who operate the Constitution and the scholars who write about it. When a commentator disapproves of an action that is in accordance with constitutional convention.. He must admit that the action is sanctioned by the precedents and the views of the political and learned authorities. He is likely to say that the action is `only technically constitutional', or in some other way use the term `constitutional' in a perjorative sense. Critical comment of this kind is often the spearhead of constitutional development. It enables the conventions of the Constitution to be revised continually in the light of principles. Different commentators have different avowed or implicit principles. Perhaps the principle most commonly employed is that development in one part of the Constitution creates inconsistencies which should be removed by development in other parts of the Constitution."
"The general public sometimes lags a long way behind informed circles in recognizing that new conventions have been developed and that old conventions have been dropped. Possibly the majority of electors have not yet recognized that party loyalty in the government party, at any rate in the absence of a major surprise in government policy, is now required by constitutional convention - that without it there would be no effective representative government in the sense of government along the lines of policy approved by a majority of electors, and no effective responsible government in the sense of government by a Cabinet to whose dismissal electors throughout the country can contribute. Probably the majority of electors think that convention still requires a minister to resign when serious mistakes in his department are brought to light even when they arise from actions that he was not party to, would not have approved of, and could not reasonably have been expected to prevent, but this convention has never operated in New Zealand."
"Constitutional conventions are concerned to see that power is not overtly abused, the utility of standards of conduct is that if they are applied they ensure that power is not surreptitiously abused. It would be an overt abuse of power, and contrary to a constitutional convention, if the Governor-General vetoed a Bill, if the prime minister failed to resign promptly after the opposition had gained a majority of the seats in a general election, if the government party used its parliamentary majority to suspend standing orders and rush its legislation through without debate. It would be a covert abuse of power, and would fail to measure up to a constitutional standard of conduct, if a Representation Commission favoured one party under cloak of making a conscientious exercise of its discretion." More than 30 years later this seems wildly optimistic. National & Labour governments have since indulged in the latter two forms of abuse. The sanctity of such conventions is a matter of convenience it seems, to be disregarded at whim.
This raises the question of how accountability may be enforced. "Today we need to examine the constitutional position of the public service, independent commissions, and administrative tribunals.. The most important constitutional convention affecting these newer organs of government is the convention limiting the political activities of public servants. Little more is asked of these newer organs of government than that they should perform their administrative functions equitably and efficiently. But they cannot do so unless they comply with the appropriate standards of conduct." When compliance is not forthcoming and rules are broken and government officials are not punished, which is the current fashion, we may assume that relevant conventions of proper behaviour have effectively become redundant. In this new anything-goes environment, expect corruption to flourish.
So to scenario B... All quotes are from Sir Geoffrey Palmer's New Zealand's Constitution in Crisis, 1992.
"The prime source of the New Zealand constitution is the Constitution Act 1986, but the constitution is found not only in acts of Parliament in New Zealand but also in other legal documents, court decisions, and customary practices which are called constitutional conventions.. Our constitution reflects now the Treaty of Waitangi as a founding document of New Zealand." This latter is a crucial change. "Constitutional law is about power, who has it, how they get it and what they can use it for. If limits are to be place on the powers of government, it is in the basic constitutional instruments that those limits must be found. In 1852 the Imperial Parliament at Westminster thoughtfully conferred on New Zealand a constitutional structure of an elaborate and extensive sort. The New Zealand Constitution Act 1852.. bears no resemblance to the modern structure of New Zealand government.. The right to vote was conferred on men who owned land or leased it. There was no secret ballot.. The constitutional history of New Zealand from 1852 until 1986 was a whittling away of the 1852 Act until all that was left at the end were twelve provisions where there had once been eighty-two. These provisions gave no clue as to the structure of government in New Zealand or how power was exercised. The old Constitution Act was a relic. It was the source of legislative authority but said little about the limits on power. Curiously enough the United Kingdom Parliament could still make law for New Zealand by request and consent of the New Zealand parliament until the Constitution Act 1986 came into force."
Palmer declares this Act "the most important constitutional law we have. It is the closest New Zealand has yet got to a written constitution, yet it is rather fragmentary. Much of the detail which matters is to be found elsewhere. The Act gives few indications as to how the institutions with which it deals actually work. There is much important constitutional material not contained in it. The essence of the Constitution Act can be stated simply. It constitutes and sets out the main powers of: the Sovereign, the Executive, the Legislature, the Judiciary.”
Palmer says that in theory the New Zealand constitutional system has 5 components: sovereign, parliament, executive, courts and public. In practice however, he says, it operates as though it has 9 components: executive, caucus, parliament, courts, media, political parties, pressure groups, lawyers, and public. Note the sovereign has become invisible! Since physicists and mathematicians have long agreed a three-body system (let alone more than 3) is in principle unpredictable, we can expect such a complex system to exhibit organic evolutionary development. To understand it requires an holistic perception. "Further complexities arise as each part of this system relates to all the others in important ways which are sometimes direct and sometimes subtle. Change one element in one area and there will be consequences in another. The organism has to be understood as a whole, each part related to every other. It cannot be understood by examining only one component, the constitution is a seamless web. The whole framework has to be seen in perspective. It must be judged as a whole." Many, of course, will not comprehend such complexity, and so will judge the system by its results.
Palmer makes the case that successive Labour and National governments broke a constitutional convention, that governments act according to electoral promises made. They have long been expected to adhere to the doctrine of the mandate, and their program in government was expected to be only those proposals that the people had given them the electoral mandate to proceed with. "The foremost analyst of the changing electoral mandate is Professor Richard Mulgan who has observed that party manifesto and election policy is the "lynchpin of democratic government"... he concludes that if governments feel free to make and break election promises whenever they see fit, such a change "would quickly corrode the values of public life and increase cynicism about governments and politicians". The polling data indicate this has now happened and it is one reason our constitution is in crisis. We have got rid of the old rules and do not have new ones in their place. The behaviour Mulgan has observed is only a symptom of a more widespread imbalance in the constitutional system."
"There have been big changes to the New Zealand constitution in the last fifteen years. They include:
- development of the Waitangi Tribunal
- passage of the Official Information Act 1982
- extensive parliamentary reform in 1985 (select committees)
- enactment of the Constitution Act 1986
- establishment of Law Commission, Legislation Advisory Committee
- enactment of the Bill of Rights Act 1990
- establishment of regional government, reform of local government
- repeal of draconian power statutes (from 1932, 1948, 1979)
- establishment of Regulations Review Committee, passage of Regulations (Disallowance) Act 1989
- restructuring of public service (State-owned Enterprises Act '86, State Sector Act '88, Public Finance Act '89)"
I have summarised Palmer's list, which suggests the need for further consolidation. "The Constitution Act should be revised to contain more of the basic rules of our constitution and the Bill of Rights Act should be added to it. They should then be entrenched so the new Act becomes New Zealand's basic constitutional document - The New Zealand Constitution. It should not be capable of being altered except by a referendum of electors or a 75% majority in Parliament. Such a constitution would give the courts power to declare unconstitutional government actions or legislation contrary to it."
"In New Zealand there is a lack of balance between the three components of the system - the executive, Parliament and the courts. The situation now is one of overwhelming executive power.. The crisis of the New Zealand constitution lies in the maldistribution of power between its component parts." It remains to be seen how MMP will redistribute power in government. The fraudulent, undemocratic and deceitful actions of our governments in recent decades produced a loss of public confidence in the system of democracy. Reforms "have been implemented by stealth or ambush because their sponsors thought that the only way of having them accepted. I have taken part in a good deal of policy development of this character: the State Sector Act 1988 is the example which most clearly comes to mind.. for the last few years there has been developing a dissonance between the expression of will, translated through the political process, and the policies implemented. The disjunction has produced dysfunction. There is widespread mistrust of the system." Palmer doesn‘t seem to be boasting, but makes no apology. Cynics might even guess he was setting himself up for a career change... "Politicians in New Zealand now are perilously close to levels of credibility which will cause the system to decay and collapse. The politicians need to be rehabilitated and public faith in the system of government restored by restructuring the constitution." And who better to employ as technical consultant than the eminent constitutional law professor Sir Geoffrey Palmer? ·
"The Queen is legally the head of the government of New Zealand", Sir Geoffrey just now said on National Radio as I write (22/8/95). In his book he stresses that the sovereign's representative now has purely formal powers by virtue of the prior convention. "By a constitutional convention of long standing the power was one that was exercised by the Governor-General on advice; the advice of responsible ministers. Since 1 January 1987 it is still part of the constitutional law of New Zealand that unless a bill passed by parliament is assented to by the Governor-General it is not the law. The 1986 Act provides in section 16: "A Bill proposed by the House of Representatives shall become law when the sovereign or the Governor-General assents to it and signs it in token of such assent". But if that power were exercised by the Governor-General without advice there would be a first-rate constitutional crisis."
"Even in the event of a crisis in which the Governor-General's reserve powers may be called on it is not clear these extend to not signing legislation which she is advised to sign.. Still there are occasions when people have made representations to the Governor-General that the Governor-General ought not to sign some piece of legislation or other that they do not like. Maori people have made such representations, for example. But the Governor-General does not have that power and it is time people understood the point. If it were otherwise there could hardly be said to be democratic control over the content of legislation. The question of royal assent aside, nothing controversial has emerged from the Constitution Act." The Governor-General acted contrary to the advice of the ministers of the government of Australia in 1975, and dissolved parliament. I watched carefully at the time, and saw nothing in the media coverage to suggest it could not happen here. Nothing has happened since to change my mind so I believe Palmer's confidence is somewhat misplaced. What use is a monarch, other than a legal rubber stamp and symbolic figure-head? None, it seems to me.
Sovereignty ought to be vested in the people as a whole, rather than in the person of the monarch, in the preeminent article of a constitution. A real democracy requires this surety. The ratification of parliamentary acts is a suitable function of the president of a republic. I would even go so far as to give the president power to refer suspect legislation to a constitutional court or parliamentary committee if it appears to infringe upon minority rights. The validity of sovereignty as a component of international or constitutional law is a subject too substantial to address here, but it is of vital relevance.
Palmer says "much of our domestic legislation has its origins in international obligations which New Zealand has undertaken. The Legislation Advisory Committee in 1992 listed more than 185 New Zealand statutes which appeared to be affected in some way by treaty obligations. That figure amounted to about a quarter of all the acts of Parliament New Zealand has.. That tendency can only increase in the years ahead." Our governments have however refrained from ensuring that domestic laws are consistent with our global commitments. "The International Covenant on Civil and Political Rights which has been ratified by New Zealand has also an Optional Protocol which the Labour government ratified. This issue sleeps now, but it will awaken. The Optional Protocol allows New Zealanders to make complaints to the Human Rights committee of the United Nations. New Zealand lawyers have apparently not yet discovered it."
Many in my generation rebelled against the hypocrisy and fascism in our government a quarter of a century ago. From that a groundswell of shared disgust and resentment has grown to electorally decisive proportions. But the social problems remain to be solved. Aotearoa must be reconstituted on a sound basis, to enable more consensual development of our country in the new millennium. This must include incorporating a duty upon the government to provide domestic legislation that fully conforms with our obligations under United Nations Covenants, endowing all of our people with the civil rights they are due. Current and previous National governments have continually refused to do this, retaining laws that deny target sections of the community various of their rights.
Citizens need effective legal protection against a malevolent state, and for those not wealthy this can only come from entrenched laws that provide civil rights. "Neither the Constitution Act nor the New Zealand Bill of Rights Act is entrenched. They are ordinary statutes enacted by the New Zealand Parliament in the ordinary way and they can as easily be undone. The Constitution Act should be revised to contain more of the basic rules of our constitution and the Bill of Rights Act should be added to it. They should then be entrenched so the new Act becomes New Zealand's basic constitutional document.. It should not be capable of being altered except by a referendum of electors or a 75% majority in Parliament. Such a constitution would give the courts power to declare unconstitutional government actions or legislation contrary to it." Any new Constitution we adopt must compel our government to adhere to United Nations agreements that we have ratified, by requiring it to legislate in conformity with them.
[Dennis Frank, 22/8/95.]
Reconstituting this country is a waste of time if it remains shackled by the current antique form of democracy (refer to the paradigm page). Incorporation of the principle of local autonomy is essential. Communities must be legally able to administer local governance, particular in time of crises when the national authorities can barely cope at the national level and inevitably are unable to help.
The Treaty is indeed the foundation of the constitutional structure of the country, yet public debate persistently ignores the recognition by the British government of the tribal sovereignty of Maori chiefs. That recognition was formalised in 1836 - readers unfamiliar with this ought to check out the historical developments on the Confederation of United Tribes website http://www.united-tribes.com/history.htm .
I recall supporting Mat Rata's call for a separate Maori justice system, at a Greens meeting on Alliance justice policy, back when the Green Party was in the Alliance ('93, I think). I was leading the Greens justice policy working group at the time. I went on to advocate the recognition of Maori sovereignty provided it was done in the context of a dual-sovereignty constitutional structure. Maori sovereignty was explicitly recognised in the Maori version of the treaty, in the form of local sovereignty exercised by chiefs over their tribes. Legally, it would apply only to signatories to the document, and it was not included in the English version of the Treaty for reasons known only to the translator.
The viability of the Treaty as the foundation for 21st century democracy is questionable. The problem is that it is merely an agreement between the British sovereign and some local chiefs. Sure, it seems to provide a principled basis for bi-racial partnership, but how useful is that in a multi-racial society? And how many Maoris are still keen on being ruled by chiefs?? I suspect that many feel that Treaty settlements have yet to yield any real trickle-down, and they are merely a way for the tribal aristocracy to enrich itself. Rather than cling to the residual structures of the patriarchy, both Maori & Pakeha folk are best advised to collaborate on a constitutional structure that invests sovereignty in the people as a whole.
The old slogan `power to the people' tends to seem valid when elected representatives serve vested interests instead of the people. If the constitutional structure gave the people that formal power in principle, that wouldn't necessarily mean they would be able to rule themselves in practice, so there would remain a place for representation in governance. The way to preserve the common good is to incorporate clauses into the constitution that enforce accountability on elected representatives. Waiting until the next election to vote them out has never been satisfactory. A suitable recall mechanism to curtail misbehaviour must be included in the design. The above constitutional review therefore must be seen as providing an incomplete prescription for progress. Enhancement of democracy is required as well. It needs to become more participatory, and more principled, in order to seem credible.
There's an evident common-interest basis that oppressed minorities ought to use to establish solidarity. Cannabis smokers are still around a third to half the country but remain unable to participate in public debate by providing personal testimony of their life experience lest they be imprisoned. All those Maori tribes that did not enter into formal agreements with the British crown cannot claim sovereignty or traditional on any historical basis - the Treaty has never applied to them. All such minorities not yet included ought to collaborate and present the public with a principled articulation of solidarity based on the human rights specified in United Nations covenants. The common interest is served by inclusion rather than exclusion, so all minority groups whose rights are not currently recognised - or whose rights remain suppressed by current legislation - must be included in the reform process. Since Labour and National remain in collusion in preventing this happening, anyone who wants real democracy in this country will have to unite against them to force progress to occur.
Aotearoans born prior to a decade ago lived in the constitutional state outlined below in scenario A, whereas due to the reconstruction engineered by Sir Geoffrey Palmer and effected by his government we are now living in the constitutional state described in scenario B. Names of acts of parliament have been italicised to reduce visual indigestion for the reader's benefit.
Here follows scenario A... All quotes are from Professor KJ. Scott's The New Zealand Constitution, 1962.
The constitutional framework of this country is derived from the last of the three constitutions enacted for New Zealand during the colonial period. An Act to grant a Representative Constitution to the Colony of New Zealand was passed in the British parliament in 1852, with its title amended in 1896 to The New Zealand Constitution Act, I852. lt came into effect in this country on 17/1/1853 by proclamation of the Governor. Our own parliament refers to this as the Constitution Act (see Interpretation Act, 1858, and Acts Interpretation Act, 1924). Reference to this act as `the Constitution' was normal in the earliest years of its use, but became rare after about 1860. It provided six provinces, each with territorial jurisdiction, elected legislature and executive, and defined the extent of central government control and jurisdiction over these. "It created a central legislature, the General Assembly, consisting of the Governor, an appointed Legislative Council, and an elected House of Representatives; and gave the General Assembly the power, subject to certain limitations, to legislate for the peace, order and good government of New Zealand."
Subsequent domestic legislation has substantially altered the government structure thus established. "The provisions for the election of members of the House of Representatives were replaced by New Zealand legislation in 1858, the provinces were abolished under a New Zealand statute passed in 1875.. and after 1893 only 21 of the original 82 sections remained in force." The Legislative Council was abolished in 1950. Britain had reserved the right to disallow acts of our parliament, and the power to amend the structure of government here was granted to our government in stages. "The General Assembly, being the creature of the Constitution Act, has only such powers as the Constitution Act gives it." Remarkably, "one section gives the Crown concurrent legislative power: section 71 empowers the Crown to issue letters patent giving Maori custom the force of law. This power has not been exercised.
One other section possibly restricts the powers of Parliament. This is section 58, which makes provision for disallowance. The section requires the Governor-General to transmit to the Secretary of State an authentic copy of every Bill to which he has assented, and empowers the Crown to disallow a Bill within two years. Since 1947 the Governor-General has failed to perform the statutory duty placed upon him by this section. It would appear that receipt of the authentic copy by the Secretary of State is probably a condition precedent to the exercise of the Crown's power of disallowance, and that accordingly disallowance is not at present possible."
"Under section 56 the Governor-General may reserve a Bill at his discretion" Considering the Governor-General makes all decisions on the advice of the ministers, it would appear that they have been routinely discrete in following this advice. Given the large number of laws enacted against the interests and will of the people by recent governments, it also appears that the occupants of the office have brought it into disrepute by refusing to exercise their freedom to choose to recognise and support the will of the people by reserving unpopular legislation. The collective will of the people is expressed more often via political polls and other media than elections, and polls that showed 90% opposition to state asset sales were clear evidence of the collective opinion of the electorate. Governors-General who failed to prevent such asset sales betrayed their responsibility to defend and protect the people's common interests.
"lt is generally true, though not logically necessary, that a document does not become known as `the Constitution' unless at least part of it is protected from amendment by the ordinary legislative process." This country began self- government without the power to amend its Constitution, and without even a ministry responsible to parliament, "responsible government was not introduced until the opening of the first session of the second Parliament in 1856."
New Zealanders sought more independence from the British empire, at first... "The New Zealand Constitution Amendment Act, 1857, enacted by the United Kingdom Parliament, conferred power to amend or repeal all but twenty-one sections of the 1852 Act, subject to the reservation of any Bill in which the power was exercised. In 1947 the New Zealand Constitution Amendment Act, enacted by the United Kingdom Parliament, conferred full powers of amendment on the New Zealand Parliament without any requirement as to reservation." These powers were granted by Britain in the Statute of Westminster 1931. "New Zealand had been the most reluctant of the Dominions when the Imperial Conferences of 1926 and 1930 had discussed the reform of the legal basis of the Empire." Lack of interest in extending independence was such that "New Zealand specifically requested the insertion of a provision that sections 2-6 of the statute were not to extend to New Zealand as part of the law of New Zealand until adopted by the New Zealand Parliament.. And since 1947 the New Zealand Parliament's reluctance to make constitutional changes has been shown by the fact that it has not yet tidied reservation and disallowance out of the Constitution Act. The record shows that in mag or matters the New Zealand Parliament has been reluctant to use its powers of constitutional amendment. The future is likely to be similar." No longer! See scenario B, below.
Entrenching law to provide a framework of democracy is sensible, provided a mechanism is incorporated that enables future amendments to be made whenever demand generates sufficient consensus. Those wishing to avoid constitutional reform are stuck with a democratic framework that is vulnerable to ad-hoc manipulation, because "there is no real doubt that a statutory provision that a section is to remain in force forever without amendment would not be legally effective." If Parliament passed legislation that "purported to amend or repeal an entrenched provision by the ordinary legislative process, and the resulting document purporting to be a statute were challenged in a court, the legal effectiveness of the entrenching provision would be decided." Obviously, therefore, a court would be more impressed by an extraordinary legislative process, and the framers of the Constitution of Aotearoa will need to include one. It would be feasible to activate the process via a majority vote in the House, but require a 75% vote to approve amendments. Some may argue precedent militates against a court finding against a purported act of parliament. In a 1954 case, the three Court of Appeal judges assessed "whether recent Parliaments had been validly constituted". They decided "it would not be competent for the court to question the validity of documents duly printed as Acts of Parliament." We appear to need a supreme court empowered to adjudicate such validity.
"As New Zealand has no `Constitution' adopted and amendable only by special procedures, there is no special constitutent (that is, Constitution-making and Constitution-amending) power as distinct from legislative power.
Constituent purposes are among the purposes for which legislative power can be exercised." There is "a way in which New Zealand could adopt a `written' Constitution under which the power of constitutional amendment could not be exercised by Parliament. If the New Zealand Parliament transferred its powers to a Constituent Assembly and at the same time abolished itself, and the Constituent Assembly thereafter chose to adopt a Constitution creating a Parliament with limited powers, then the new Parliament would have only such powers as the Constitution gave it." This signals our path ahead.
Also of constitutional status is legislation that constructs electoral representation. The Electoral Act 1956 contained entrenched sections constituting the Representation Commission, defining the electoral districts, the adult franchise, the secret ballot, and the life of Parliament. Some of our current constitutional law derives from other inherited statutes of the United Kingdom, such as the Habeus Corpus Act, 1689, some "is found instruments issued under the prerogative (that is, the Crown's discretionary authority), for instance the letters patent of 11 May 1917 and 18 December 1918 constituting the office of the Governor-General and the Executive Council. Some is found in instruments through which the Crown has exercised powers granted by United Kingdom statutes.. Some is found in instruments through which the Crown has exercised powers granted by New Zealand statutes.. Some is found in regulations issued by the Governor-General in Council, for instance the Electoral Regulations, 1957, issued under the Electoral Act, 1956. Some is found in decisions of the courts." In any reconstitution of this country such various strands must be examined for relevance, reformulated, and woven together. The various instruments may then perform together in new harmony, and we can envision this symphony of law providing a basis for the Republic of Aotearoa.
"New Zealand constitutional law is flexible, in the sense that it can be amended by Parliament by the ordinary legislative process. The only other country whose constitutional law is so flexible is the United Kingdom." Parliaments acted in recognition of their constitutional freedom. "It is true that until 1947 Parliament did not have plenary powers, but the limitations that existed on the powers of Parliament till 1947 do not appear to have affected the volume of constitutional legislation. Probably the only important constitutional legislation of the century, apart from legislation concerning the Legislative Council culminating in the Legislative Council Abolition Act, 1950, has been the legislation passed from time to time on the life of Parliament, and on the boundaries of the electoral districts, and the legislation of 1947 on the powers of Parliament."
"A Constitution is a body of rules determining or providing procedures for determining the organization, personnel, powers, and duties of the organs of government, and some of these rules are not rules of law. The term `conventions of the Constitution' is commonly used for the parts of the Constitution that are extra-legal". These include some of the most important parts such as the powers of Cabinet: "Cabinet derives its powers from convention." There are further good reasons to take such conventions seriously. "First, convention may operate to nullify a provision of constitutional law. Thus, convention has nullified the power of veto given to the Governor-General by the Constitution Act. Second, convention may transfer a lawful power from one person to another. Thus, the Governor-General is empowered by letters patent to appoint ministers, but by convention the persons he appoints are the persons nominated to him by the prime minister. Third, convention may supplement the law of the Constitution. Thus, the Constitution Act provides that the House of Representatives is to elect a Speaker, and convention determines the nature of the Speaker's duties, and requires him to discharge these duties in a non-partisan manner."
Convention may be all-powerful in dictating judicial outcomes. "In 1935 the Judicial Committee of the Privy Council felt called upon to consider whether it was itself a court.. Formally it is not a court with power of decision but a committee of the Privy Council with merely advisory functions. The committee decided that as it was staffed by judges and was guided only by legal considerations, and as its advice was invariably followed by the Privy Council, it was by constitutional convention a court. `But according to constitutional convention it is unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee, who are thus in truth an appellate court of law."' [source italics]
Some conventions are written, some not: "thus the conventions regarding the private interests of ministers are written in a report that was adopted by the House of Representatives in 1956, and some of the conventions on Commonwealth relations are recorded in the reports of Imperial Conferences and in the preamble to the Statute of Westminster. Again, law is usually precise, convention is usually imprecise. But the law on the interpretation of statutes is imprecise, and the convention that the Governor-General will appoint the prime minister's nominees to the Executive Council is precise. Law is seldom amended, convention is continually developing. But the salaries of minsters and other members of Parliament are reviewed after every general election, and the convention that the veto should not be employed has not changed in over two and a half centuries. Unlawful conduct is usually regarded as gravely reprehensible, conduct in disregard of convention as only mildly reprehensible. But it is not generally regarded as reprehensible when technically unlawful appointments are made for urgent reasons during a parliamentary recess and validating legislation is enacted during the next ensuing session of Parliament, and it was widely regarded as gravely reprehensible when the 1931 Parliament extended its own life."
Clearly governments are free to act in an unconventional manner in their approach to constitutional reform. "A single precedent creates a convention when the reason why it should be regarded as obligatory is clear.. A practice becomes a convention when it is recognized as such by the politicians who operate the Constitution and the scholars who write about it. When a commentator disapproves of an action that is in accordance with constitutional convention.. He must admit that the action is sanctioned by the precedents and the views of the political and learned authorities. He is likely to say that the action is `only technically constitutional', or in some other way use the term `constitutional' in a perjorative sense. Critical comment of this kind is often the spearhead of constitutional development. It enables the conventions of the Constitution to be revised continually in the light of principles. Different commentators have different avowed or implicit principles. Perhaps the principle most commonly employed is that development in one part of the Constitution creates inconsistencies which should be removed by development in other parts of the Constitution."
"The general public sometimes lags a long way behind informed circles in recognizing that new conventions have been developed and that old conventions have been dropped. Possibly the majority of electors have not yet recognized that party loyalty in the government party, at any rate in the absence of a major surprise in government policy, is now required by constitutional convention - that without it there would be no effective representative government in the sense of government along the lines of policy approved by a majority of electors, and no effective responsible government in the sense of government by a Cabinet to whose dismissal electors throughout the country can contribute. Probably the majority of electors think that convention still requires a minister to resign when serious mistakes in his department are brought to light even when they arise from actions that he was not party to, would not have approved of, and could not reasonably have been expected to prevent, but this convention has never operated in New Zealand."
"Constitutional conventions are concerned to see that power is not overtly abused, the utility of standards of conduct is that if they are applied they ensure that power is not surreptitiously abused. It would be an overt abuse of power, and contrary to a constitutional convention, if the Governor-General vetoed a Bill, if the prime minister failed to resign promptly after the opposition had gained a majority of the seats in a general election, if the government party used its parliamentary majority to suspend standing orders and rush its legislation through without debate. It would be a covert abuse of power, and would fail to measure up to a constitutional standard of conduct, if a Representation Commission favoured one party under cloak of making a conscientious exercise of its discretion." More than 30 years later this seems wildly optimistic. National & Labour governments have since indulged in the latter two forms of abuse. The sanctity of such conventions is a matter of convenience it seems, to be disregarded at whim.
This raises the question of how accountability may be enforced. "Today we need to examine the constitutional position of the public service, independent commissions, and administrative tribunals.. The most important constitutional convention affecting these newer organs of government is the convention limiting the political activities of public servants. Little more is asked of these newer organs of government than that they should perform their administrative functions equitably and efficiently. But they cannot do so unless they comply with the appropriate standards of conduct." When compliance is not forthcoming and rules are broken and government officials are not punished, which is the current fashion, we may assume that relevant conventions of proper behaviour have effectively become redundant. In this new anything-goes environment, expect corruption to flourish.
So to scenario B... All quotes are from Sir Geoffrey Palmer's New Zealand's Constitution in Crisis, 1992.
"The prime source of the New Zealand constitution is the Constitution Act 1986, but the constitution is found not only in acts of Parliament in New Zealand but also in other legal documents, court decisions, and customary practices which are called constitutional conventions.. Our constitution reflects now the Treaty of Waitangi as a founding document of New Zealand." This latter is a crucial change. "Constitutional law is about power, who has it, how they get it and what they can use it for. If limits are to be place on the powers of government, it is in the basic constitutional instruments that those limits must be found. In 1852 the Imperial Parliament at Westminster thoughtfully conferred on New Zealand a constitutional structure of an elaborate and extensive sort. The New Zealand Constitution Act 1852.. bears no resemblance to the modern structure of New Zealand government.. The right to vote was conferred on men who owned land or leased it. There was no secret ballot.. The constitutional history of New Zealand from 1852 until 1986 was a whittling away of the 1852 Act until all that was left at the end were twelve provisions where there had once been eighty-two. These provisions gave no clue as to the structure of government in New Zealand or how power was exercised. The old Constitution Act was a relic. It was the source of legislative authority but said little about the limits on power. Curiously enough the United Kingdom Parliament could still make law for New Zealand by request and consent of the New Zealand parliament until the Constitution Act 1986 came into force."
Palmer declares this Act "the most important constitutional law we have. It is the closest New Zealand has yet got to a written constitution, yet it is rather fragmentary. Much of the detail which matters is to be found elsewhere. The Act gives few indications as to how the institutions with which it deals actually work. There is much important constitutional material not contained in it. The essence of the Constitution Act can be stated simply. It constitutes and sets out the main powers of: the Sovereign, the Executive, the Legislature, the Judiciary.”
Palmer says that in theory the New Zealand constitutional system has 5 components: sovereign, parliament, executive, courts and public. In practice however, he says, it operates as though it has 9 components: executive, caucus, parliament, courts, media, political parties, pressure groups, lawyers, and public. Note the sovereign has become invisible! Since physicists and mathematicians have long agreed a three-body system (let alone more than 3) is in principle unpredictable, we can expect such a complex system to exhibit organic evolutionary development. To understand it requires an holistic perception. "Further complexities arise as each part of this system relates to all the others in important ways which are sometimes direct and sometimes subtle. Change one element in one area and there will be consequences in another. The organism has to be understood as a whole, each part related to every other. It cannot be understood by examining only one component, the constitution is a seamless web. The whole framework has to be seen in perspective. It must be judged as a whole." Many, of course, will not comprehend such complexity, and so will judge the system by its results.
Palmer makes the case that successive Labour and National governments broke a constitutional convention, that governments act according to electoral promises made. They have long been expected to adhere to the doctrine of the mandate, and their program in government was expected to be only those proposals that the people had given them the electoral mandate to proceed with. "The foremost analyst of the changing electoral mandate is Professor Richard Mulgan who has observed that party manifesto and election policy is the "lynchpin of democratic government"... he concludes that if governments feel free to make and break election promises whenever they see fit, such a change "would quickly corrode the values of public life and increase cynicism about governments and politicians". The polling data indicate this has now happened and it is one reason our constitution is in crisis. We have got rid of the old rules and do not have new ones in their place. The behaviour Mulgan has observed is only a symptom of a more widespread imbalance in the constitutional system."
"There have been big changes to the New Zealand constitution in the last fifteen years. They include:
- development of the Waitangi Tribunal
- passage of the Official Information Act 1982
- extensive parliamentary reform in 1985 (select committees)
- enactment of the Constitution Act 1986
- establishment of Law Commission, Legislation Advisory Committee
- enactment of the Bill of Rights Act 1990
- establishment of regional government, reform of local government
- repeal of draconian power statutes (from 1932, 1948, 1979)
- establishment of Regulations Review Committee, passage of Regulations (Disallowance) Act 1989
- restructuring of public service (State-owned Enterprises Act '86, State Sector Act '88, Public Finance Act '89)"
I have summarised Palmer's list, which suggests the need for further consolidation. "The Constitution Act should be revised to contain more of the basic rules of our constitution and the Bill of Rights Act should be added to it. They should then be entrenched so the new Act becomes New Zealand's basic constitutional document - The New Zealand Constitution. It should not be capable of being altered except by a referendum of electors or a 75% majority in Parliament. Such a constitution would give the courts power to declare unconstitutional government actions or legislation contrary to it."
"In New Zealand there is a lack of balance between the three components of the system - the executive, Parliament and the courts. The situation now is one of overwhelming executive power.. The crisis of the New Zealand constitution lies in the maldistribution of power between its component parts." It remains to be seen how MMP will redistribute power in government. The fraudulent, undemocratic and deceitful actions of our governments in recent decades produced a loss of public confidence in the system of democracy. Reforms "have been implemented by stealth or ambush because their sponsors thought that the only way of having them accepted. I have taken part in a good deal of policy development of this character: the State Sector Act 1988 is the example which most clearly comes to mind.. for the last few years there has been developing a dissonance between the expression of will, translated through the political process, and the policies implemented. The disjunction has produced dysfunction. There is widespread mistrust of the system." Palmer doesn‘t seem to be boasting, but makes no apology. Cynics might even guess he was setting himself up for a career change... "Politicians in New Zealand now are perilously close to levels of credibility which will cause the system to decay and collapse. The politicians need to be rehabilitated and public faith in the system of government restored by restructuring the constitution." And who better to employ as technical consultant than the eminent constitutional law professor Sir Geoffrey Palmer? ·
"The Queen is legally the head of the government of New Zealand", Sir Geoffrey just now said on National Radio as I write (22/8/95). In his book he stresses that the sovereign's representative now has purely formal powers by virtue of the prior convention. "By a constitutional convention of long standing the power was one that was exercised by the Governor-General on advice; the advice of responsible ministers. Since 1 January 1987 it is still part of the constitutional law of New Zealand that unless a bill passed by parliament is assented to by the Governor-General it is not the law. The 1986 Act provides in section 16: "A Bill proposed by the House of Representatives shall become law when the sovereign or the Governor-General assents to it and signs it in token of such assent". But if that power were exercised by the Governor-General without advice there would be a first-rate constitutional crisis."
"Even in the event of a crisis in which the Governor-General's reserve powers may be called on it is not clear these extend to not signing legislation which she is advised to sign.. Still there are occasions when people have made representations to the Governor-General that the Governor-General ought not to sign some piece of legislation or other that they do not like. Maori people have made such representations, for example. But the Governor-General does not have that power and it is time people understood the point. If it were otherwise there could hardly be said to be democratic control over the content of legislation. The question of royal assent aside, nothing controversial has emerged from the Constitution Act." The Governor-General acted contrary to the advice of the ministers of the government of Australia in 1975, and dissolved parliament. I watched carefully at the time, and saw nothing in the media coverage to suggest it could not happen here. Nothing has happened since to change my mind so I believe Palmer's confidence is somewhat misplaced. What use is a monarch, other than a legal rubber stamp and symbolic figure-head? None, it seems to me.
Sovereignty ought to be vested in the people as a whole, rather than in the person of the monarch, in the preeminent article of a constitution. A real democracy requires this surety. The ratification of parliamentary acts is a suitable function of the president of a republic. I would even go so far as to give the president power to refer suspect legislation to a constitutional court or parliamentary committee if it appears to infringe upon minority rights. The validity of sovereignty as a component of international or constitutional law is a subject too substantial to address here, but it is of vital relevance.
Palmer says "much of our domestic legislation has its origins in international obligations which New Zealand has undertaken. The Legislation Advisory Committee in 1992 listed more than 185 New Zealand statutes which appeared to be affected in some way by treaty obligations. That figure amounted to about a quarter of all the acts of Parliament New Zealand has.. That tendency can only increase in the years ahead." Our governments have however refrained from ensuring that domestic laws are consistent with our global commitments. "The International Covenant on Civil and Political Rights which has been ratified by New Zealand has also an Optional Protocol which the Labour government ratified. This issue sleeps now, but it will awaken. The Optional Protocol allows New Zealanders to make complaints to the Human Rights committee of the United Nations. New Zealand lawyers have apparently not yet discovered it."
Many in my generation rebelled against the hypocrisy and fascism in our government a quarter of a century ago. From that a groundswell of shared disgust and resentment has grown to electorally decisive proportions. But the social problems remain to be solved. Aotearoa must be reconstituted on a sound basis, to enable more consensual development of our country in the new millennium. This must include incorporating a duty upon the government to provide domestic legislation that fully conforms with our obligations under United Nations Covenants, endowing all of our people with the civil rights they are due. Current and previous National governments have continually refused to do this, retaining laws that deny target sections of the community various of their rights.
Citizens need effective legal protection against a malevolent state, and for those not wealthy this can only come from entrenched laws that provide civil rights. "Neither the Constitution Act nor the New Zealand Bill of Rights Act is entrenched. They are ordinary statutes enacted by the New Zealand Parliament in the ordinary way and they can as easily be undone. The Constitution Act should be revised to contain more of the basic rules of our constitution and the Bill of Rights Act should be added to it. They should then be entrenched so the new Act becomes New Zealand's basic constitutional document.. It should not be capable of being altered except by a referendum of electors or a 75% majority in Parliament. Such a constitution would give the courts power to declare unconstitutional government actions or legislation contrary to it." Any new Constitution we adopt must compel our government to adhere to United Nations agreements that we have ratified, by requiring it to legislate in conformity with them.
[Dennis Frank, 22/8/95.]
Reconstituting this country is a waste of time if it remains shackled by the current antique form of democracy (refer to the paradigm page). Incorporation of the principle of local autonomy is essential. Communities must be legally able to administer local governance, particular in time of crises when the national authorities can barely cope at the national level and inevitably are unable to help.
The Treaty is indeed the foundation of the constitutional structure of the country, yet public debate persistently ignores the recognition by the British government of the tribal sovereignty of Maori chiefs. That recognition was formalised in 1836 - readers unfamiliar with this ought to check out the historical developments on the Confederation of United Tribes website http://www.united-tribes.com/history.htm .
I recall supporting Mat Rata's call for a separate Maori justice system, at a Greens meeting on Alliance justice policy, back when the Green Party was in the Alliance ('93, I think). I was leading the Greens justice policy working group at the time. I went on to advocate the recognition of Maori sovereignty provided it was done in the context of a dual-sovereignty constitutional structure. Maori sovereignty was explicitly recognised in the Maori version of the treaty, in the form of local sovereignty exercised by chiefs over their tribes. Legally, it would apply only to signatories to the document, and it was not included in the English version of the Treaty for reasons known only to the translator.
The viability of the Treaty as the foundation for 21st century democracy is questionable. The problem is that it is merely an agreement between the British sovereign and some local chiefs. Sure, it seems to provide a principled basis for bi-racial partnership, but how useful is that in a multi-racial society? And how many Maoris are still keen on being ruled by chiefs?? I suspect that many feel that Treaty settlements have yet to yield any real trickle-down, and they are merely a way for the tribal aristocracy to enrich itself. Rather than cling to the residual structures of the patriarchy, both Maori & Pakeha folk are best advised to collaborate on a constitutional structure that invests sovereignty in the people as a whole.
The old slogan `power to the people' tends to seem valid when elected representatives serve vested interests instead of the people. If the constitutional structure gave the people that formal power in principle, that wouldn't necessarily mean they would be able to rule themselves in practice, so there would remain a place for representation in governance. The way to preserve the common good is to incorporate clauses into the constitution that enforce accountability on elected representatives. Waiting until the next election to vote them out has never been satisfactory. A suitable recall mechanism to curtail misbehaviour must be included in the design. The above constitutional review therefore must be seen as providing an incomplete prescription for progress. Enhancement of democracy is required as well. It needs to become more participatory, and more principled, in order to seem credible.
There's an evident common-interest basis that oppressed minorities ought to use to establish solidarity. Cannabis smokers are still around a third to half the country but remain unable to participate in public debate by providing personal testimony of their life experience lest they be imprisoned. All those Maori tribes that did not enter into formal agreements with the British crown cannot claim sovereignty or traditional on any historical basis - the Treaty has never applied to them. All such minorities not yet included ought to collaborate and present the public with a principled articulation of solidarity based on the human rights specified in United Nations covenants. The common interest is served by inclusion rather than exclusion, so all minority groups whose rights are not currently recognised - or whose rights remain suppressed by current legislation - must be included in the reform process. Since Labour and National remain in collusion in preventing this happening, anyone who wants real democracy in this country will have to unite against them to force progress to occur.
