Executive, judiciary, and the Treaty

The Herald continues its series on the relationship between the executive and the judiciary this morning, with a pair of articles from constitutional lawyer Mai Chen and Green MP Nandor Tanczos. In the first, Chen argues that despite the progress made under MMP, there is still real public concern about the executive's unbridled power and a desire to subject it to further checks and balances. This will, she thinks, lead to a supreme constitution to redistribute that power. In the second, Tanczos points out that the dispute isn't so much about who rules - unelected judges or elected politicians - but in how they rule. The common thread of both is that the courts exist to uphold the rule of law, and have an essential role as (in Tanczos' words) "a basic protection for ordinary people against the arbitrary power of the state".

Another common thread is the Treaty. Chen, being mostly concerned with the politics of constitutional change points out that such change will require a painful discussion on the exact status of that document, and that

a significant minority of New Zealanders, mostly Maori, will argue that any supreme constitution will lack legitimacy if it excludes references to the treaty.

Tanczos gives a concrete example of exactly this sort of thinking:

The legitimacy of the parliamentary system has its origin not in the democratic mandate but in a genuine social contract. It was the Treaty of Waitangi, an agreement between two sovereign peoples, that provided the basis for Pakeha settlement and government in this country.

It scarcely seems conceivable that the foundation of constitutional legitimacy can act as no enforceable constraint on Parliament. Yet the one thing the foreshore and seabed legislation showed most clearly was the lack of any real constitutional protection for Maori. It was a modern-day confiscation, breaching the Treaty of Waitangi, overturning common-law rights, and enacted in the face of enormous opposition.

That does not mean that the Treaty must be enacted as supreme law (as I've argued elsewhere, it's a little thin for that), but that some moves will have to be made to ensure that future governments conform to its principles. And in the current political climate, where at least three right-wing parties seem intent on just tearing it up and throwing it in the constitutional dustbin, that seems unlikely.