A constitution's role in protecting democracy- NZ's constitution.

A constitution's role in protecting democracy- NZ's constitution.

Constitution defined

A constitution is body of fundamental principles, laws and rules; that inform how a nation should be governed. Constitutions offer a safe guard for democracy, defending democracy from falling into authoritarianism.

This is achievable due to clear separation of power and identification of the roles within government. Constitutions establish what the different branches of government are, sets out their principal powers and then makes clear what the limits in those powers are. When the borders around application of power are clear identifying breaches in these borders, holding governments accountable and protecting society from arbitrary misuse of power is feasible.

Beyond this constitutions should be a reflection of that nation’s core values. A constitution provides an avenue for the people to dictate what values they most prioritise and to ensure that the government is bound to respect and reflect those ideals. Constitutions are often analogized to living organisms, in constant evolution. The constitution should be able to change in response to societal changes. This flexibility and transience, is one of the greatest strengths of NZ’s uncodified constitution.

Explanation of the nature of NZ’s constitution

NZ’s constitutional arrangement today

NZ’s current constitution is uncodified. This means it cannot be found in a singular written document. Some of the identifiable sources are common law, NZ legislation, imperial legislation, instruments of the royal prerogative, parliamentary law and procedures, Te Tiriti o Waitangi, international law and broad constitutional principles, conventions and doctrines these pieces of documentation can roughly be broken into laws and rules.

Laws are distinct from conventions, they are enforceable by law.

Firstly, Common law is law developed over time by the courts, these laws are enforced by the state however they more malleable than parliamentary legislation. Common law fluidly changes over time as courts set new precedents and re-define different principles.

Secondly, NZ legislation. There are many different pieces of legislation within our constitution, the Constitution Act 1986, the Electoral Act 1993 and the New Zealand Bill of Rights Act 1990 are a few.

Thirdly; beyond these pieces of NZ legislation NZ also inherited some law from their colonisers, Imperial legislation. The English Laws Act 1858 confirmed that all English law applicable to NZ at the time the Treaty was signed would become law of NZ. The courts looked to the mischief, a problem which exists or is likely to exist should be remedied with legislation.

The problem with Imperial law is that is assumes that there was no formal law in NZ prior to European settlement. Prior to Te Tiriti o Waitangi Maori had their own constitutional system. The Maori constitutional system was based on Tikanga. Maori constitution rotated around a pivot of; Whanaugatanga, the importance of community as the centre of Te Ao Maori. Manaakitanga, caring for others. Mana, the importance of sanctioned leadership and the limits placed on that leadership. Tapu, the importance of respecting ones environment and its spiritual significance and Utu, the principle of equilibrium.

Te Tiriti o Waitangi 1940 is largely accepted to be an intrinsic part of NZ’s constitution but it is not always applied, it is only recently that the NZ government is recognizing Tikanga and incorporating it into everyday legislation. NZ’s constitution should prioritise Maori values, and the promises made to Maori.

Finally; Conventions are habits, understandings and practices that together regulate the conduct of government. Sir Ivor Jennings test is a tool used to determine when a practice becomes a binding convention. Firstly there must be a precedent, secondly the actors must believe themselves bound and thirdly there should be a good reason for the convention. Conventions are similar to common law, that they are formed through custom however they are not enforceable by the courts, nevertheless a breach of them is just as unconstitutional as a breach of law and will pertain consequences. Conventions are enforced by parliament consequences will be political. The enforcement of conventions is not formal but it is effective.

Conditions for the development of a written constitution

The international norm is that a nation’s constitution be consolidated into one document.

The majority of organized societies have a written constitution. Written constitutions generally develop after some political upheaval, they are a way for the people to dictate what they want from their political future and to import rules that will bind the government to uphold these political aspirations. One proposed explanation for NZ not having a written constitution is that, similarly to England, we have never faced severe national upheaval. This theory ignores the NZ Wars, the constitutional crisis in 1984 when our system failed to immediately swear in a new government following general election, two world wars and other internal conflicts. We have been provided an opportunity for a written constitution to be implemented. Regardless of these circumstances “Our constitution has tended to meander oblivious to the events around it."

An unwritten constitution suits NZ attitudes. But Palmer argues a concrete tangible constitution would be more befitting our cultural persona. NZ have not sooner demanded a written constitution for there is little knowledge of the topic.

 Benefits of a written constitution vs benefits of NZ’s current arrangement

There may be no innate reason why our constitution should be codified, there are arguably benefits.

Firstly Accessibility, certainty and education. The current constitution is difficult to find and navigate. This is an issue as the nature of a constitution is to serve the people and liberate them, if they are unaware of their rights or the role of government it is difficult to enforce those rights or to know when to hold their government accountable.

Secondly a codified constitution goes further towards protecting rule of law. The rule of law (RoL) is globally endorsed constitutional principle. Some understand it in a formal nature; law must be set out in advance, be in clear terms and apply equally to all. Others understand the principle in a broader sense; beyond the literal interpretation of legislation.

Written constitution makes fair application of the RoL easier. The formal interpretation of RoL states law should be set out in advance in clear terms. If the current constitution is difficult to access and comprehend, it cannot be said to be in “clear terms”. Secondly the formal definition says rule of law should apply to all, currently parliamentary supremacy threatens that idea. Parliament can overrule any law, difficult to see how they will be bound to respect law that undermines their power. A written constitution would involve entrenchment of constitutional laws and greater judicial independence, the courts could ensure vital rights have protection and hold all people to the same standard.

Finally, having a written constitution would act as a safeguard for vital human rights. Under the current system the Bill of Rights Act 1990 is legislation with no more importance than any other, it can be altered or removed from law with a bare majority vote from parliament. Codification would give more protection to constitutional law such as the Bill of Rights or Te Tiriti o Waitangi, legislation vital to the fair and humane treatment of all. Although this makes for a more secure constitution a written constitution has little flexibility.

The most notable strength of our current unwritten constitutional arrangement is that it is flexible. As said earlier one of the more important aspects of a constitution is that it changes with the people. Legislation can be made rapidly therefore keeping in step with societal change. However Palmer suggests our system has too much flexibility, he uses the example of the NZ Public Health and Disability Amendment Act which was enacted in one sitting to public outcry. NZ relies on Government representing the people and therefore accurately interpreting our voices, however this is not always so.

On a very basic level this passage is accurate in its portrayal of the NZ constitution. It is perhaps overreaching when it says there is no reason for codification. It then goes onto state that some people think our constitution anachronistic, this is not the whole picture, there is some value in leaving our constitution unwritten. The truth falls somewhere in between the two statements. There are benefits in retaining our current system however these are debatably outweighed by the potential benefits of a written constitution.

Constitutionalism reflected in NZ’s constitutional arrangement.

 The concept of constitutionalism in NZ

“Constitutionalism” concerns itself with the purpose of a constitution, reigning in the power of government and defining their power. An uncodified constitution enforces limits upon the government in an informal manner; through conventions, parliamentary process and public scrutiny. The public act as a control on state power in the same way that binding laws do in other jurisdictions. For democracy to stay intact in a system controlled by the people transparency is essential, all official decisions should be debated and scrutinized by the people.

Constitutionalism in NZ is unique due to our heritage. Maori values and constitutional traditions lend themselves to an uncodified system. The Maori constitutional principle of Whanaugatanga is especially relevant, it emphasizes the idea of community at the centre of constitutionalism.

B  Constitutionalism in action in NZ

Structure and the flexibility of conventions allows our constitution to function. Flexibility allows parliament to respond quickly to societal concerns and our structure enables the people to keep executive power within reasonable bounds. This can be seen in the case of Fitzgerald v Muldoon. It was only due to our strong traditions of upholding constitutional principles that he was not successful. This decision showed the strength of separation of powers in limiting executive power. The case emphasized the significance constitutional principles in Parliament, especially in an uncodified arrangement where values and conventions are some of the only protection from authoritarianism.

Parliamentary supremacy and conflict with a codified constitution

 Parliamentary supremacy means that parliament has the power to pass any legislation they see fit, parliament essentially has un-constrained law making capacity. This concept clashes with the principles of a written constitution. A written constitution increases judicial independence. Parliamentary supremacy has always wielded great power within the New Zealand system.

Parliamentary supremacy undermining constitutionalism

 Though NZ does not have any entrenched constitutional law we do have normalised conventions, constitutional principles protecting our democracy. It is arguably advantageous for democracy that the branch representing the people has supremacy in introducing law. Potential danger lies in placing too much power in those who are not democratically elected. This can be seen in the US Supreme Court where the judiciary has a monopoly over interpreting constitutional law. The power to dictate constitutional values has been taken from the people and been given to the elite, the constitution has stagnated.

Constitutionalism is reflected in New Zealand’s system, though not in the same way as in jurisdictions with a written constitution. Constitutionalism in NZ is fluid above all else and largely depends on trust that the Government with maintain transparency and open dialog with Parliament and the people.

References:

 Geoffrey WR Palmer and Matthew SR Palmer, Bridled Power (4^th ed, Oxford University Press, Melbourne, 2004) at 3.

Sir Kenneth Keith, “On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government” in Cabinet Office Cabinet Manual 2008 at 1.

Matthew SR Palmer, “What is New Zealand’s Constitution and Who Interprets It?” (2006) 17 PLR 133 at 134.

AV Dicey, Introduction to the Study of the Law of the Constitution (8^th ed, Macmillan, London, 1923) at 140.

 Matthew SR Palmer, “What is New Zealand constitution and who interprets it? Constitutional realism and the importance of puBlic office-holders” (2006) 17 PLR 133 at 135.

 English Laws Act 1858.

 Morgan Godfery, “The political constitution: from Westminster to Waitangi” (2016) 68 Political Science 192.

Colin Turpin, Adam Tomkins and John W Sap, British Government and the Constitution (6^th ed, Cambridge University Press, Cambridge, 2007) at 156.

 John McGrath QC “The Harkness Henry Lecture: The Crown, The Parliament And The Government” [1997] 7 Waikato Law Review 1 at 19.

AW Bradley and KD King Ewing, Constitutional and Administrative Law (14^th ed, Pearson Longman, New York, 2007) at 4-8

 Geoffrey Palmer and Andrew Butler, A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2015).

 Brian Z Tamanaha, On the Rule of Law (Cambridge University Press, Cambridge, 2004) at 91.

Phillip A Joseph, Constitutional and Administrative Law in New Zealand (3^rd ed, Thompson Brookers, Wellington, 2007) at 9.

Fitsgerald v Muldoon [1976] 2 NZLR 615 (SC) 

Geoffrey Palmer, “New Zealand and the Glorious Revolution” [1976] NZLJ 265 at 265.

 Mark Elliott, “Parliamentary Sovereignty” (15 October 2014) Public Law for Everyone.