I recently wrote an article (HERE)
about why any move in New Zealand to a
written constitution would be fraught with
uncertainty and potential dangers.
The unelected judges who would be
charged with interpreting the final
document would have much increased power,
and the elected legislature would have
That is the fact and inherent
nature of any such written constitu
New Zealand would be highly unlikely to
opt for an Australian-style written
constitution, one that has hardly any
morally pregnant, vague and amorphous
provisions – no bill of rights for
No, New Zealand would be very
likely to opt to constitutionalise the
Treaty of Waitangi, a document whose every
word is contested and that at the least is
highly indeterminate as regards to how it
bears on many of today’s contested
The result would be a transfer of
decision-making authority from the elected
legislature over to the judiciary, under
the guise of constitutional
my earlier article warned against making
this move, not least on democratic
that earlier article of mine was focused
on the substance of the debate, the
dangers and demerits of making any move
from New Zealand’s current unwritten
constitutional structure, to a written
In this article I want to turn to the
question of process, and how a country
might legitimately change its
me lay my cards on the table straight up
and say this:
For a country in today’s
democratic era to change its constitution
without in any real way asking its own
citizens would be a disgrace, the sort of
thing one might expect after a military
coup in Pakistan or as a consequence of a
passing whim of Mr. Mugabe in Zimbabwe.
Or, to focus on more salubrious
nations, the sort of thing the amazingly
democratically-deficient European Union
might, and did, do before moving to the
yet, unbelievably, that same disgraceful
possibility is a real one here in New
Zealand of all places.
a real possibility because Deputy Prime
Minister Bill English, at the launch of
the Constitutional Review in December
2010, stated that ‘significant change
will not be undertaken lightly and will
[emphasis mine] broad cross-party
agreement or the majority support of
voters at a referendum’.
key point to notice is that Mr. English is
clearly implying that New Zealand’s
constitutional arrangements –
arrangements that have been amongst the
world’s most successful over the past
century or two – might be changed solely
on the basis of ‘broad cross-party
that is a completely bogus and
illegitimate way to change New Zealand’s
Because not one of the major
political parties before the last election
signalled to voters that this was a live
or real possibility. In fact neither
National nor Labour had a review of the
constitution as part of their manifestoes.
only the Maori Party even mentioned a
possible review of the constitution.
So the sole signal to voters that
their highly successful constitution might
be changed was made, and made quite
briefly at that, by a political party that
garnered fewer than 1 in 50 votes.
in negotiating a confidence and supply
agreement with the Maori Party did the
National Party and Mssrs Key and English
agree to a review of the constitution.
They did not make such a change
party manifesto policy or commit National
to such a change so voters could vote
that, as anyone would notice, wholly and
completely sidesteps any input from the
Worse, with Mr. English’s
Clintonesque formulation of ‘broad
cross-party agreement’ there is the
pretence that the political parties have
earlier asked their supporters about this.
For 49 out of 50 of us, they
It’s a Bill Clinton-like fudge.
this, should it come to pass, would be an
incredibly illegitimate process.
As I said, it would be a disgrace.
It would amount to a country’s
constitution being changed on the say-so
of a few top National Party people and the
Or throw in the Labour Party too,
it would still be a stitch-up, a top-down,
bypass-the-voters ploy to make any EU
bureaucrat smile with envy.
smart, nice, reasonable people can and
will differ on whether they prefer a new
constitution for New Zealand, or not.
But there are legitimate and
illegitimate ways to attempt that change.
binding referendum would be a legitimate
process (though I personally am quite
confident proponents of change would be
slaughtered in any such referendum, which
may explain why it is frowned upon by some
Another legitimate process would be
for all political parties inclined to
support this change to make it a clear,
major component of their manifesto before
the next election, so that after that
coming election ‘cross-party
agreement’ had some scintilla of
legitimacy to it.
Barring that, cross-party agreement
– however broad – is democratically
It mimics the ‘do everything we
can to avoid asking our own citizens’ EU
approach to change that is looking
less than wonderful these days, to put it
as kindly as is humanly possible.
deals are stitched-up after
elections without changes having been
signalled to voters by political parties
before the election, well that is bad
enough when it comes to regular,
day-to-day political issues.
when it is done on something as
fundamental as changing the
we are then in the realm of near total illegitimacy.
It has then become a bastard
process worthy of scorn, defiance and
a vow by all of us never in future (under
any circumstances) to vote for political
parties that foisted it on us.
a disgrace constitutional change of that
nature would be.
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