About the Author

Avatar photo

Professor James Allan

Changing an unwritten constitution

Print Friendly and PDF
Posted on

I am a long time believer that an unwritten constitution of the sort you find in New Zealand today, or the United Kingdom before it was enmeshed in the European Union, is a very good sort of constitution indeed.  Among its strengths are its flexibility and incredibly democratic nature.  Rather than have 7 or 9 unelected judges read through the runes of a handful of words from the past, or long past, to decide if there can be same-sex marriage or easy abortions or gun controls or the myriad sorts of big ticket issues decided all the time in Canada and the US by their top judges interpreting their written constitutions, in New Zealand all these issues are decided by you, the voter.

You vote for elected members of Parliament and they decide.  Think of it as each generation being left to decide for itself what it wants to do by voting, by letting-the-numbers-count.  That’s another way of saying it’s democratic.

In Canada, when the legislature was against same-sex marriage but the judges read the written constitution and applied a ‘living constitution’ interpretive approach – meaning that the constitution’s meaning purportedly changes over time, and changes solely and only on the basis of those same judges telling us it has changed – to infer that same-sex marriage was now legal, that could be described in many ways.  But being a ‘democratic’ way to make the decision, whatever you think about the merits of the call, is not one of them.

Far, far better to make these calls in the elected legislature, in my view.  Even if that means you might occasionally be on the side of the judges and have gotten your way a little faster without all the fuss and bother of having to convince over half of your fellow citizens.

So I like that sort of democratic decision-making. And you get more of it with a New Zealand-style unwritten constitution than with any other sort going.

Of course I’ve said that before.  And of course not everyone agrees with me.  A good many people want to move New Zealand to some sort of written constitutional structure.  And as with all such structures or documents the intent is to lock certain things in, to take them beyond the reach of majoritarian democracy.

Well, that is not my preference but it is certainly a respectable one.

But here is what is NOT respectable.  What is not respectable is to change New Zealand’s constitutional structures without giving New Zealand voters a say.  When the US opted for its written constitution it had constitutional conventions in each of the then 13 States so that people could have a say. Better yet, when Australia went down this road voters in each State got an up-down vote.

Now think about what is happening here in New Zealand.  If some sort of written constitution were proposed, maybe one with the Treaty entrenched within it, then before that sort of outcome could have even a scintilla of legitimacy the question ought to be put to all of you.

Proponents of change note that change might come, technically speaking, either via a binding referendum or via a vote of 75 percent of MPs in the House.  But this is sophistry pure and simple.  The vote of MPs would simply be a way to do an end-run around all of you voters, the route you’d take if you feared letting the voters have a say.

Of course that second route, the 75 percent of MPs route, makes perfect sense and would be a legitimate one if before the last election this sort of mooted written constitution had been a campaign issue and had been part of the election manifestoes of all or most of the political parties.

But as all readers well know that simply wasn’t the case.  No one last election voted for a party with any idea this sort of change could conceivably be implemented.  It was only on the horizon of one small party that garnered fewer than one in twenty votes.  Indeed had it been part of the National Party manifesto I go out on a limb and venture the opinion that Mr. Key and Co. would have done somewhat less well, if can put things as kindly as possible.

No, the only two legitimate options on the table today, right now, are either a binding referendum or a future election campaign with whatever changes are mooted made part of the manifestoes of the political parties supporting change. Then a 75 percent vote of MPs might mean something.

So here is an out-and-out challenge to Mr. Key.  Be straight with the voters.  Announce that there will be no changes to the unwritten constitution that has served New Zealand so well without there first being a binding referendum.  Say it now; say it clearly; and stop people from fretting that some illegitimate process might be employed.

After all, this is not merely to do with the smacking debate, or even the foreshore and seabed debate, where Mr. Key might be able to talk of the need for strong public support before going ahead to implement change without all that much concern for what the public supported.

No, this is as fundamental as it gets.  This is about the bedrock set-up for the country.  So when Mr. Key muses, as he recently did, that you couldn’t just change from a 3year electoral cycle to a 4 year one on the basis of a 75 percent of MPs vote – that this less fundamental shift needed a binding referendum – it surely follows that the even more important and central issue of our constitutional arrangements themselves also need a binding referendum before there can be change.

At least I can’t see how you can hold the one position when it comes to a year’s change to the voting cycle but not the other when it comes to the whole constitution itself.  Or at least I don’t see how that can be asserted in any plausible and honest way.

Back when I was living and working in New Zealand I would on occasion find myself defending its unwritten constitution against friends and law professor colleagues, some of whom said that all this talk about democracy was well and good but that the real, core danger of an unwritten constitution was that some unscrupulous party or leader would manipulate it and change the rules without asking the voters.

I poohed-poohed that notion then, and I still pooh-pooh it.  At the end of the day voters get what they deserve and leaders are constrained by their sense of what voters will tolerate.

If any change to New Zealand’s unwritten constitution were to proceed without a binding referendum, my sense and indeed my hope is that the National Party would be obliterated as a political force in New Zealand.

Maybe that’s wildly optimistic on my part.  I hope not.