Wednesday, September 27, 2006



Republican structures

There's an interesting discussion going on between Nigel Kearney and Lewis Holden on republican government. In a post on "The Republican Debate", Nigel argues that there are essentially three constitutional options:

1) The status quo
2) Replace the appointed Governor General with an elected President, but keep his powers and responsibilities the same. Abolish the Queen's role altogether.
3) The full republican approach with separation of the executive from the legislature, i.e. a President and Ministers who run the government, while a completely separate Parliament is responsible for making laws.

[...]

However, as I intend to explain in this post, option 2 is markedly inferior to the status quo and should not be adopted. If we don't like option 3, we should stick with the system we have. Option 2 is actually an almost perfect combination of the worst elements of both 1 and 3.

Nigel's argument for this is essentially that our current system of government - and hence a "twink republic" where the Governor-General is replaced by an elected President - requires the complete impartiality of the Head of State in deciding e.g. when or whether to dissolve Parliament or who to appoint as Prime Minister. And this cannot be assumed where a President is independently elected.

There are two obvious responses to this: firstly, that its not only elected heads of state who can run amok and abuse their power for partisan advantage, and secondly that if election is seen as compromising the impartiality of the head of state, appointment is always an option. But a more important point is that Nigel completely ignores the role of constitutional convention. The Governor-General is decidedly not free to appoint anyone they wish as Prime Minister; by convention (and pure practicality), they appoint the person who can win a vote of confidence in Parliament. In cases where it is not clear where the confidence of the House lies, then it is a matter of waiting for it to become clear, rather than stepping in and choosing a winner. Likewise, they are not free to dissolve Parliament and call elections whenever they wish; by convention, that power can be exercised only on the advice of the Prime Minister. While it's not unreasonable to worry that these conventions could break down if we change our constitutional structure, that shouldn't rule out such change. After all, we can always codify to make clear the exact circumstances in which these powers can be exercised - a move which would protect us from rogue Governors-General as well as partisan presidents. This pretty much removes any "practical disadvantages" of a twink republic, leaving us with the very real advantage - namely, no monarch.

As for the broader question of Presidential vs Parliamentary structures, TIMTOWTDI of course, but I favour a Parliamentary republic for two reasons. Firstly, it is simply easier to get there from here; the changes required are minor, and therefore more achievable (and less likely to undermine existing convention). And secondly, as Lewis alludes, for reasons of accountability. In a Parliamentary republic, the chain of accountability is perfectly clear: Cabinet is accountable to Parliament, which is accountable to the people. Contrast this with the US: who exactly is Donald Rumsfeld accountable to? Who is George Bush accountable to, particularly now that he can no longer stand for re-election? The answer in the latter case seems to be "no-one but himself". As a final note, a Presidential republic would tend to go against the grain of recent political reform in New Zealand, which has been aimed at weakening rather than strengthening the executive.

12 comments:

>The Governor-General is decidedly not free to appoint anyone they wish as Prime Minister

I thought I made it pretty clear that the GG appoints the person who the GG thinks has the support of the majority of Parliament. In order to determine this in a close election, especially with a proposed minority government, the GG may well have to do consult with people and exercise their judgment.

>Likewise, they are not free to dissolve Parliament and call elections whenever they wish; by convention, that power can be exercised only on the advice of the Prime Minister.

Not true. If the PM loses, or may have lost, the support of a majority of MPs, the GG can step in and act independently of the PM's advice.

> we can always codify to make clear the exact circumstances in which these powers can be exercised - a move which would protect us from rogue Governors-General as well as partisan presidents.

Only if you make the codified rules justiciable - in which case it is no longer a 'twink' republic. The question then is what the rules and processes would be. Probably I would have no objection if the whole thing was done properly.

> This is pretty much removes any "practical disadvantages" of a twink republic, leaving us with the very real advantage - namely, no monarch.

Except you haven't removed any of them. The absence of a monarch is not a 'real advantage' for any useful meaning of the word 'real'. There are real disadvantages in that we would lose the ability of the monarch to overrule a rogue GG. It's an open question what the GG or their republican equivalent might do when the possibility of being overruled is taken away.

Posted by Nigel Kearney : 9/27/2006 07:41:00 AM

My idea for incremental reform:

1. Change the procedure for electing the Speaker - have an exhaustive secret ballot and a requirement for a supermajority of MPs, thus ensuring that only a figure with wide support can be elected.

2. Codify the procedures to form and dismiss governments. Remove the G-G from this process, replacing them with a constitutional panel consisting of the Speaker, Chief Justice and Cabinet Secretary.

3. Codify the powers of government, replacing any circumstance where the G-G acts on advice of the PM with the ability of the PM to act directly.

4. Remove other archaic powers from the G-G, such as Royal Assent - bills would become law when approved by parliament.

At this point, we still have a nominal G-G but they will have no power. They can still hold garden parties or whatever. They could then at any stage be replaced by an elected or appointed President as Head of State, or the PM could become HoS as (effectively) happens in South Africa. If monarchists prefer, the position could be held directly by the British or Maori monarchs - it wouldn't matter as they would be a pure figurehead.

Posted by Rich : 9/27/2006 01:42:00 PM

Nigel:

I thought I made it pretty clear that the GG appoints the person who the GG thinks has the support of the majority of Parliament. In order to determine this in a close election, especially with a proposed minority government, the GG may well have to do consult with people and exercise their judgment.

The key to your argument is that having an elected Head of state (and hence someone with political allegiances) would mean that such judgments would be made in a partisan way. I cannot agree on this point - examples from other Parliamentary republics (such as Germany in 1983, when a CDU aligned President told the CDU Chancellor to go to an election, rather than simply align with the Free Democrats, or Portugal, or India, etc) show otherwise. Moreover, as I/S points out, it's actually been the most "neutral" Gov-Gens that have caused the most problems (Sir John Kerr was a former Chief Justice, Lord Byng was a foreign diplomat).

>Likewise, they are not free to dissolve Parliament and call elections whenever they wish; by convention, that power can be exercised only on the advice of the Prime Minister.

Not true. If the PM loses, or may have lost, the support of a majority of MPs, the GG can step in and act independently of the PM's advice.

That's not exactly true either - by convention the GG can't simply unilaterally dissolve Parliament if an alternative government may exist. The best example of this was at the Selwyn by-election in 1994(?), when Winston Peters wrote to the GG, Tizard, stating that she should dissolve Parliament if the government lost its one-seat majority; the Gov-Gens response was that she wouldn't if Labour plus someone else had a majority.

Only if you make the codified rules justiciable - in which case it is no longer a 'twink' republic. The question then is what the rules and processes would be. Probably I would have no objection if the whole thing was done properly.

I don't know if you've seen the code I've written Nigel, but it isn't justiciable; save for the Government acting illegally, where it is for the Supreme Court to decide. (My code is derived from the Australian Republic Advisory Committee proposal, which didn't make it into the model proposed at the 1999 referendum - because the monarchists opposed it). However, I could easily change this, although as I state above I don't think the President's ability to act in a non-partisan way will be so greatly impaired that they cannot make fair judgments.

There are real disadvantages in that we would lose the ability of the monarch to overrule a rogue GG. It's an open question what the GG or their republican equivalent might do when the possibility of being overruled is taken away.

I think you know full well Nigel that, if for nothing else, the Queen will never overrule her Governor-General (She let Ganilau validate the Fijian coup in 1987, not before they overthrew the monarchy...) simply because to do so damages the standing of the monarchy. In other words, the Queen won't overrule a "rogue" Governor-General. The reality is that this power doesn't really exist, like the refusal of assent, except where the Prime Minister has the support of the House of Representatives to have the Governor-General recalled; which they can do unilaterally.

Posted by Lewis : 9/27/2006 02:57:00 PM

Nigel: In order to determine this in a close election, especially with a proposed minority government, the GG may well have to do consult with people and exercise their judgment.

Not really; all they have to do is look at the public statements from party leaders on who they will be backing. And if the situation is not sufficiently certain, their job is to wait and allow a deal to work itself out; as 1996 showed, a few months of caretaker government never hurt anyone.

If "judgement" is required, then the candidate cannot be assumed to have the confidence of the House, and should not be appointed. It really is that simple.

Of course, the entire question could be removed by requiring someone to actually win a vote of confidence before being appointed, rather than being appointed on a promissary note; that would make things absolutely crystal clear. The only reason we don't do this of course is attachment to monarchical tradition.

(Oh, and like Lewis, I think you're also vastly overestimating the uncertainty of MMP elections, and not paying enough attention to the key constitutional requirement: that the Prime Minister must win a confidence motionin the House).

On dissolutions, one of the ways our constitution has evolved in recent years is that the former Governor-General regarded the ability to dissolve Parliament in the event of a loss of confidence as itself being subject to the caretaker convention - that is, to be determined by the will of the House (likely as expressed by party leaders) rather than the whim of the Governor-General.

The easiest way of codifying convention would be to simply add it in to the Constitution Act 1986 (Lewis has an example bill - which I comment on above - here). This would make it justicable, but at the same time keep our current constitutional structure pretty much intact. And its a change we should make whether or not we go down the republican path. If the problem is the "judgement" of the Governor-General, then lets remove the possibility of their exercising it. Their job is not to "judge" on anything; it is to host garden parties and sign whatever is put in front of them.

Posted by Idiot/Savant : 9/27/2006 03:11:00 PM

Lewis: by convention the GG can't simply unilaterally dissolve Parliament if an alternative government may exist. The best example of this was at the Selwyn by-election in 1994(?), when Winston Peters wrote to the GG, Tizard, stating that she should dissolve Parliament if the government lost its one-seat majority; the Gov-Gens response was that she wouldn't if Labour plus someone else had a majority.

In the UK they've formalised this as the Lascelles Principles; the monarch can refuse to dissolve if Parliament is still "vital, viable, and capable of doing its job", or if they can rely on finding another PM with a majority in the Commons.

Posted by Idiot/Savant : 9/27/2006 03:17:00 PM

I/S: Heh. Good old British constitutional law, formulated by letters to the editor of The Times.

Perhaps this could be added to the description of our constitution: New Zealand's constitution consists of Acts of Parliament, Royal Proclamations, Orders-In-Councils, Treaties, Letters Patent and letters to the editor. Hehe

Andrew Stockley (a Canterbury Law Prof) basically confirmed what you said I/S, that while the G-G might be able to use their powers more following MMP elections, it wasn't likely to happen - and as you note, the G-G just stays out of it. There's nothing to suggest a President would act differently.

Posted by Lewis : 9/27/2006 03:27:00 PM

I'm not sure how the "Lascelles Principals" square with the ability of British PMs to call an election at will. Possibly then parliament votes (or is assumed to be willing to vote) for a dissolution?

Posted by Rich : 9/28/2006 11:02:00 AM

Rich - because I that case they still have the confidence of the Commons. Although the Lascelles Principles do seem to state that the Queen could refuse the advice of the PM... strange...

Posted by Lewis : 9/28/2006 01:24:00 PM

Re: Lascelles Principles

Excuse my ignorance, but how the fuck can some royal hand holder institute constitutional change/confirm constitutional convention by writing a letter to the editor of the Times? He didn't even put his name to the letter!

I assume that if the letter had been written prior to 1947 the priciple would aply here too?

Posted by PabloR : 9/29/2006 09:55:00 AM

PabloR: To quote a certain TV show, "These things happen in a monarchy". Which is yet another reason to get rid of it.

I suspect it would have to have been written a long time before 1947 to apply here automatically, but I'm not really sure about the exact constitutional status of letters to the editor in New Zealand law (other than that they shouldn't have any, and that such principles should be enacted by Parliament and subjected to proper public scrutiny and debate)

Posted by Idiot/Savant : 9/29/2006 12:11:00 PM

"I'm not really sure about the exact constitutional status of letters to the editor in New Zealand law (other than that they shouldn't have any..."

I believe they're a protected form of free speech =)

Posted by Graeme Edgeler : 9/29/2006 01:21:00 PM

I'd go for anything that takes us toward a participatory polity. Probably number 2. It's a pity you're so invested in the representative parliamentary system that you don't even discuss the alternatives.

Posted by Anthony : 9/29/2006 08:06:00 PM