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Dr Muriel Newman

Major constitutional change without a referendum is illegitimate

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Egypt is in a state of constitutional crisis. Newly elected President Mohammed Morsi has granted himself near enough to absolute dictatorial power in order to neutralise the judiciary – the only branch of the state not already under his control. This act of absolute control has again divided his county. On the one hand are his Muslim Brotherhood supporters, and on the other, a largely secular and liberal opposition along with the nations’ judiciary. Two people have been killed and hundreds injured as civil protest grows.

It is worth noting the parallels between what is happening in Egypt and what is going on in New Zealand – over constitutional change.

In Egypt, President Morsi is attempting to force through a draft constitution that would impose a new Islamic vision on the country.

In New Zealand, using a low-profile government constitutional review, the Maori Party is attempting to force through a new bicultural constitution that would impose the vision of the Maori sovereignty movement onto the country.

In Egypt, the draft constitution states that the Islamic institution Al-Azhar must be consulted on any matters related to Sharia law, a move that critics fear will give clerics oversight of legislation.

In New Zealand, a new bicultural constitution would require an institution like the Waitangi Tribunal to be consulted on all new laws to ensure they complied with the Treaty of Waitangi, a move that would give the Waitangi Tribunal oversight of all legislation.

In Egypt, the new constitution seeks to define the “principles” of Islamic law by saying it reflects theological doctrines and tenets. It is claimed that by trying to define the intentionally vague “principles”, the reach of Sharia and its influence on the country will be vastly expanded.

In New Zealand, a bicultural constitution would almost certainly redefine the “principles” and the rights outlined in the Treaty of Waitangi so they can be enforced by Maori in a way that’s not possible at present. This would massively expand the reach and influence of the Treaty on the country. Such power would have the effect of legally enforcing Waitangi Tribunal decisions as well.

In Egypt, critics are arguing that the constitution is being “hijacked” by the Muslim Brotherhood in an attempt to “kidnap Egypt from its people”.

In New Zealand, it is the Maori Party who is attempting to “hijack” the constitution in order to radically change the governance of New Zealand.

In Egypt, the President is expected to call for a nation-wide binding referendum on the draft constitution within the next two weeks to give voters the final say on whether his new constitution passes into law or fails.1

And that is where the parallels end.

In New Zealand, although we have a long and stable democratic tradition, astonishingly, the Government has not ruled out completely bypassing the public over what could become the most radical constitutional change in our history. Instead of guaranteeing that any major constitutional change would only be approved as a result of a binding referendum of voters, it look likely that the majority will be locked out from having a say.

This week’s NZCPR Guest Commentator, Professor James Allan of Queensland University, a constitutional law expert and member of our Independent Constitutional Review Panel, explains in his article What a bastard:

“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 euro currency.

“And yet, unbelievably, that same disgraceful possibility is a real one here in New Zealand of all places.  It is 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 require either broad cross-party agreement or the majority support of voters at a referendum’.

“The 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 agreement’.

“And that is a completely bogus and illegitimate way to change New Zealand’s constitution.”

Professor Allan goes on to explain that there are in general two legitimate methods commonly used by governments for major constitutional change. One is to hold a binding referendum as most countries do – and as they are doing in Egypt. The other is for parties to make the issue such a major part of their manifesto that voters are given the chance to have their say through the ballot box at the next election. The fact that neither of these options has been definitively championed, could mean, as Professor Allan surmises, that the top echelon of the National Party will stitch up a deal with the Maori Party – and possibly the Labour Party – in favour of cross party support for a bicultural constitution, bypassing the public altogether.

And before you say no, that couldn’t possibly happen, what about the National Party’s secret deal with the Maori Party to commit New Zealand to the United Nations Declaration on the Rights of Indigenous People? And don’t forget the foreshore and seabed debacle. No supporter of the National Party would have believed at the outset, that the party could have possibly considered doing a deal to repeal public ownership of the coast to open it up for Maori tribal claims – when it hadn’t even been mentioned in their election manifesto. But they were wrong.

When it comes to power, National, like most political parties, is more than capable of sacrificing almost anything for the right to rule. The National Party sacrificed public ownership of the coast in order to retain the support of the Maori Party and the right to govern again. However, given the underlying tensions between the founder of the Maori Party and the Labour Party, it is unlikely that the Maori Party’s support would have gone anywhere else – even if National had refused to do more than hold a review, which is all their coalition agreement required!

New Zealand is in exactly the same position now as it was back then. The National Party has done a coalition deal with the Maori Party that included a review of our constitutional arrangements. It has committed $4 million of taxpayers’ money to the project. The Maori Party is very clear – it wants a new written constitution enshrining the Treaty of Waitangi as supreme law. The question is would National will go that far? Knowing the divisive impact a bicultural constitution would have on the country, would National sign away our social cohesion and unity to satisfy the Maori Party? If they did, they would, of course, claim they were doing it “in the interest of stable government”. In truth they would simply be deal-making to fortify their diminishing chances of governing after the next election.

This question of what National may or may not do is clearly something that we cannot answer. What is a concern, however, is that they are using a deliberate strategy of keeping the whole constitutional review under the radar of public opinion. That means there is a genuine risk that the country as a whole will remain largely unaware that any major threat is on the horizon.

The same cannot be said about Maoridom. A whole separate engagement process has been set up for active consultation with Maori. Some $2 million out of the total $4 million budget has been allocated for this purpose. This means that supporters of the Maori sovereignty movement will be extremely well informed and very aware of what is at stake. They will no doubt be encouraged to actively engage in support of a new bicultural constitution with the Treaty as supreme law.

With a pro-Treaty bias underpinning the whole government review process – including the appointment of the Advisory Panel – it is clear that a public referendum would be our only real democratic safeguard. A public referendum asking whether New Zealanders want a bicultural constitution would raise awareness of the issues to enable every voting-age Kiwi to understand what is at stake.

If a public referendum held on the proposal to introduce a bicultural constitution into New Zealand resulted in a massive defeat, it would send a definitive message to the government that New Zealanders want to move forwards not backwards, that we are a nation of many peoples not just two, and that we completely reject the notion that race should define our future in New Zealand.

Three years before the Maori Party did its 2008 deal with the National Party to launch a review of “New Zealand’s constitutional arrangements”, the then Labour Government had established a special Select Committee of Parliament to undertake a sweeping review of “New Zealand’s constitutional arrangements”. The Select Committee, which reported back in August 2005, had spent nine months undertaking the review to conclude that “There are no urgent problems with New Zealand’s constitutional arrangements”.

This fact, more than any other, demonstrates that in spite of all the soft-soaping rhetoric, the sole purpose of the National/Maori Party review is political self-interest.

The Select Committee’s investigation found that the most widely used process for constitutional change is through a public referendum. They reported that New Zealand’s only Royal Commission into electoral affairs recommended its suitability for New Zealand: “The 1986 Royal Commission in New Zealand recommended that referenda ought to be held on major constitutional issues”.2

They explained that “using referenda to consult citizens directly on constitutional issues is beneficial because it acknowledges the fact that a nation’s democracy and its constitution ultimately rest on support from the people”.

The Select Committee also reported on the results of a decade-long investigation into constitutional issues that had been carried out in Australia. They believed it was relevant to New Zealand’s situation. The investigation found there was, “overwhelming public support for referenda as part of the process for constitutional change”, and that public trust was an essential element in any discussion of constitutional arrangements – which means ensuring that “information and activities are independent of party politics”.

Judged on these two criteria, the current constitution review being held in New Zealand is an abject failure. With no guarantee that major change will need to be approved by voters through a public referendum, the whole process is a disgrace. And with the Maori Party controlling the review, there is no possibility that the process could be deemed to be anything but political, so they fail on the public trust criteria as well.

Meanwhile we will watch developments in Egypt – as outrage over the political manipulation of their constitution builds – with interest!