Thursday, September 06, 2018

Let's entrench MMP as well

Rino Tirikatene's bill to entrench the Māori seats passed its first reading last night, thanks to the support of NZ First. The bill will now go to the Māori Affairs Select Committee, who will debate NZ First's proposal for a referendum on entrenchment or abolition - something likely to be both unpalatable to the bill's supporters, and outside its scope. There's an argument - made here by electoral lawyer Andrew Geddis - that the seats may be entrenched anyway by implication, but that's a lot weaker than a clear legislative statement by Parliament that it considers Māori representation fundamental to our democracy. But getting that statement ultimately depends on the National Party, who still like to chase votes by pandering to racism. So unfortunately the bill seems unlikely to pass.

But while we're on the subject of entrenchment, maybe its time to look at the other huge unentrenched part of our electoral system: MMP. While there's a consensus among political parties that changing the electoral system requires a referendum, a consensus isn't law, and offers no real protection. And contrary to the Herald article, MMP isn't actually entrenched. Section 168, governing the method of voting, is entrenched, and it refers to a party vote. But the clauses governing the size of the threshold, or proportionality, or that there are list MPs at all, are not protected. So, legally speaking, nothing is stopping National from deciding that the way to win elections is to raise the threshold to 20% to return the old two-party duopoly, remove the requirement for overall proportionality and switch us to Supplementary Member, or just set the number of list seats to zero to re-implement FPP by the back-door. Our level of constitutional protection is so weak that they could even do all of this at the last minute before an election is called, though that would naturally invite a public backlash.

All of this would be grossly unconstitutional, in the sense that it would violate established constitutional norms around the electoral system and how we alter it. But it wouldn't be illegal. And as we've seen from Trump's election, constitutional norms aren't the defence they used to be. If we want to protect our democracy, we need solid law, not just convention.

In theory, both of the parties would support this, based on their respect for the convention that changes require a referendum. But we need to get them to put that in statute. Words are nice, but without law, they're just politicians' bullshit.