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Professor James Allan

What a bastard!

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I recently wrote an article 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 less power.  That is the fact and inherent nature of any such written constitution.

Worse, 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 instance.  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 issues.  The result would be a transfer of decision-making authority from the elected legislature over to the judiciary, under the guise of constitutional ‘interpretation’.

So my earlier article warned against making this move, not least on democratic grounds.

But 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 constitution.  In this article I want to turn to the question of process, and how a country might legitimately change its constitutional arrangements.

Let 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 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 [emphasis mine] 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.  Why?  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.

Indeed, 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.

Only 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 accordingly.

But that, as anyone would notice, wholly and completely sidesteps any input from the voters.  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 haven’t.  It’s a Bill Clinton-like fudge.

So 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 Maori Party.  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.

Look, 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.

A 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 such proponents).  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.

Let’s be clear.  Barring that, cross-party agreement – however broad – is democratically illegitimate.  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.

When 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.

But when it is done on something as fundamental as changing the constitution itself, 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.

What a disgrace constitutional change of that nature would be.