Tuesday, January 15, 2008

Against a constitutional convention

In a think-piece in the Herald this morning, former Prime Minister Mike Moore floats the idea of a constitutional convention to manage constitutional change. He's concerned by the prospect of "ad hoc" or "populist" change, but reading between the lines he seems more interested in impeding change than in ensuring it is done properly. There's also an unhealthy tone of MMP-revanchism which suggests that in some cases he hopes his "eminent persons group" will take us backwards rather than forwards. But then, Moore and the political programme he represented is one of the main reasons we have MMP, so it's hardly surprising he wants to roll back the clock and return to the "good old days" of executive dictatorship, when a tiny clique could impose their political program on the rest of us, without having to worry about coalition partners, let alone the wider public. But I digress...

As the report of the Constitutional Arrangements Committee found two years ago, constitutional change in New Zealand has overwhelmingly been by a process of "pragmatic evolution" and tinkering with the core system as needed. And this is one of the strengths of our system, in that we can respond to constitutional challenges and problems as they arise. One of the problems with this process has been that Parliament has often failed to discuss such issues properly with the public (though again, I doubt anyone could make that claim of the switch to MMP, given that we forced it on them), and this is one of the itches Moore is attempting to scratch. However, his proposal for an "eminent persons group" is the very opposite of the public-driven process we need; it takes the constitution out of the hands of the people, and turns it into a plaything for the elite - who as we saw during the debate over MMP and their continued attempts to revive an upper house, have a very different idea about democracy and constitutional arrangements from the rest of us. While their findings would eventually be debated by an elected constitutional convention, leavened of course with a bunch of MPs and unelected "eminent persons" (who while they will not be able to vote, are explicitly intended to have an influence on the outcome without any democratic mandate to do so), the nature of their selection puts them at some remove from the public. A citizen's jury, randomly selected from the electorate, and with a primary goal of driving public engagement and debate and so a sense of public ownership, is a far more democratic mechanism for discussing major changes such as the final shift to a republic.

But the biggest flaw in Moore's proposal is the belief that we can and should try and solve all of our constitutional questions all at once. We can't, and neither should we try to. Every generation effectively remakes its constitution anew, and questions arise constantly as the balance of ideas - and power - shifts. The idea that we can solve these problems once and for all, so that they will never arise again, and institute a form of government perfect for all eternity is nothing but a pipe dream. We have only to look at the US to see the results of such a utopian belief: ossification, and a constitutional structure burdened with the skeletons of 18th century issues. A robust constitutional structure allows evolution to meet the challenges of the times, rather than strangling everyone with the dead hand of the past.

This does not mean that I think constitutional change should be made in an ad-hoc manner, without public consultation - far from it. I simply think it should be done by evolution, rather than revolution, with issues addressed as they arise, and the public involved every step of the way. And if this process results in changes which end up not working in the long run, we can always change them again. Our constitution should be a living thing, which grows to respond to the challenges of the times, not something embalmed in a tomb.

As for Moore's proposal it is undemocratic, revolutionary, and ignores the fundamental need for constant change. And that is why I am against it.