Wednesday, April 06, 2005

Thinktank: constitutional arrangements

In light of the Constitutional Arrangements Committee's call for submissions, it's time for another No Right Turn Thinktank. Given that the Committee is still in the terms-of-reference stage and deciding what to inquire into, we probably want to go broad. So, what parts of our constitutional structure do you think need clarifying? And what parts seem "broken" and in need of fixing?

There's at least two obvious answers to the first question: the role of the Treaty and the role of the judiciary. But what options would you like to see considered?

My submission will probably be informed by this discussion, but I'm also hoping that a few people out there will be inspired enough to work up something of their own. Our constitution belongs to everyone, and so public discussion and input can only be a Good Thing.

(The first No Right Turn Thinktank was devoted to liberal issues. And one day soon, I'll actually get around to sending out that candidate survey...)


My thoughts for stage 1 are that they should:

- establish our current constitutional arrangements as set down in law and precedent - in other words write down our unwritten constitution.

- establish how these arrangements could be robustly codified and entrenched.

- propose a measure to do that.

Note that this involves no actual change - it merely ensures that no future government will be able to vary our constitution either by simple majority legislation (like the present government creating the Supreme Court) or by ignoring precedent (like Muldoon refusing to devalue).

The biggest hurdle is the treaty - should the "Treaty Principles" be entrenched in the constitution or included in future legislation at the discretion of government.

Posted by Rich : 4/06/2005 04:08:00 PM

The scope should definitely need to include a consideration of Tino Rangatiratanga, which fundamentally concerns autonomy at a hapu/community level.

Key questions include:

* What are it's implications ?
* How could it be implemented ?

Mikaere Curtis

Posted by Anonymous : 4/06/2005 05:59:00 PM

A written constitution with an entrenched Bill of Rights guaranteeing an adequate standard of living, access to housing, health care and education. See the South African constitution.
A republic with a non-executive President.
The Judiciary empowered to strike down legislation that is unconstitutional.
Guaranteed access to justice on human rights issues.
Severe criminal penalties for tax dodgers and their advisors.
That'll do for a start.

Posted by Anonymous : 4/06/2005 06:24:00 PM

I don't agree with the presumptions expressed above that this review should necessarily result in a codified constitution.

It seems to me that one of the good things about our current arrangements are their flexibility and ability to move with the times.

The courts and parliament have the ability to regognise societal shifts and shape constitutional arrangements that reflect what is actually happening in our country - think about the development of jurisprudence on Maori issues in the last 20 years. I doubt that would have been possible under a written constitution set in place by the power brokers of 100 years ago.

Posted by Michael Wood : 4/06/2005 09:08:00 PM

Michael makes a good point - how much of our constitution actually needs to be set in stone? OT1H, flexibility is undoubtably useful - it has allowed us to change with the times. And OTOH, it is also dangerous, allowing any government with a majority to trample on the very core of our system of government.

I'm in favour of strong protection for human rights - but I'm not sure that we need to go much beyond that.

As for the development of Treaty jurisprudence, what's interesting is how little of it actually flows from the Treaty itself. Instead, many of the most controversial cases rest on common law - or explict New Zealand law. Te Weehi v Regional Fisheries Officer, for example, rested on common law aboriginal property rights, plus an explicit clause in the Fisheries Act (repeatedly carried over from previous versions) that respected customary fishing rights. Ngati Apa (the foreshore case) likewise rested on common law. Even if a 19th Century written constitution had explictly stated that the Treaty was "a simple nullity", these cases could still have been won. It would have ruled out a case like NZ Maori Council v A G (the "lands" case, which so many right-wingers love to hate) - but then, a government informed by those sorts of values would never have explicitly recognised the principles of the Treaty of Waitangi in the legislation (which is what the case was about - a conflict in legislation between explicit recognition, and another clause which seemed to trample all over those principles).

Posted by Idiot/Savant : 4/06/2005 11:35:00 PM

Mikaere: and the flip side, Kawanatanga. The Treaty clearly envisioned some balance between the two, but it doesn't say what it is. So, where do we get it from?

Posted by Idiot/Savant : 4/07/2005 12:01:00 AM