Constitution is a verb

It really is the silly season in New Zealand. Pollies all on leave, the usual stories about floods and people being rained out of campsites, and retrospectives of whatever journalists can dream up to write about. Even the best have resorted to cat stories and look at the way we were pieces. Newspaper editors, in their most cynical moments, must have been delighted that they were able to fill their pages with stories about Sir Edmund Hillary. He is, of course, a man whose death should be remarked, and his life celebrated, but I wonder if the newspaper coverage would have been quite so fulsome had he died a few months earlier, or later?

In the midst of all this, former prime minister Mike Moore has decided that it’s time to debate republicanism. His main point – there should be a group of eminent persons writing a new constitution for New Zealand. Idiot/Savant has already disposed of Moore’s “eminent persons” group, a proposal that ought to be anathema to republicans anywhere. But if you look closely at some of Moore’s other arguments, you will see that he is not really interested in republicanism at all. He is far more interested in writing a new constitution for New Zealand. So in the Trojan horse of arguing for a republic, he really hopes to wangle some new arrangements for how we constitute ourselves.

He does start with an argument for New Zealand becoming a republic: Australia is likely to become one, so New Zealand should too. Well, that’s compelling. I wonder what else New Zealand should just follow Australia in doing? Protectionism of primary producers? Imprisoning refugees and their children? Removing resources from indigenous people and then using the army to force them to live a certain way?

Don’t get me wrong – I think Australia is a fabulous country, and I’m very happy to be living here. There are many things that Australia does that I think New Zealand could emulate – the separation of powers through having an upper and a lower house being a case in point. However, we should not have an upper house just because Australia has one – we should have one because it introduces serious checks and balances into the process of making law. “Australia does it so New Zealand should too” is a very poor argument, for anything. The case for New Zealand becoming a republic should stand on its own merits, not on what is happening across the Tasman.

But then Moore’s real intent becomes clear. He thinks that we should engage in writing a whole new constitution, in order to avoid ad hoc change. As examples of ad hoc change, he cites the move to MMP, the inclusion of the principles of the Treaty of Waitangi, whatever they might be, in legislation, and the recent changes to electoral finance law.

It’s bizarre to claim that the move to MMP was ad hoc. The electoral process was reviewed by Royal Commission on the Electoral System, which came up with some radical suggestions about how New Zealand could elect its government. The Commission’s suggestions were tested in an indicative referendum, which selected MMP as the preferred system of voting, and then MMP vs FPP was tested in a binding referendum. There was a huge amount of discussion and debate about just how New Zealand should be electing its politicians. It was hardly an ad hoc process.

The inclusion of the principles of the Treaty of Waitangi in legislation was certainly introduced without anyone quite knowing what it meant. But again, the process was hardly ad hoc. There had been years and years and years of Maori protest and debate, demanding that the Treaty be honoured. Over time, the attitudes of Pakeha New Zealand started to change. Of course, this debate did not happen in parliament, so maybe that’s why Moore regards it as ad hoc. Parliament finally took notice, and started making changes, at first under the 1984 Labour government, and later under the 1990 National government, notably when Doug Graham was Minister of Treaty Negotiations. In the meantime, the principles of the Treaty of Waitangi, as they applied to legislation, were being teased out by courts and judges, in a time honoured practice, of taking a case, getting a judgement, possibly appealing that judgement to higher and higher courts, with each appeal and review refining our understanding of what the principles of the Treaty of Waitangi comprehend (in the sense of “include”, not “understand”). Again, hardly an ad hoc process. Indeed, the most ad hoc part of this process in more recent years has been the foreshore and seabed legislation, overturning a carefully thought out judgement from a court.

As for electoral finance reform, I’m with Moore, in part, on this one. The process by which the recent Electoral Finance Act was put in place was hardly ideal. It nevertheless followed the standard parliamentary protocol for legislation, and I think the result is weak legislation that far too clearly serves political parties’ interests, instead of the interests of the electorate. But Moore claims there had been a previous consensus on electoral finance. Sure! It was a consensus that allowed parties to use parliamentary funding for political purposes, and let donors hide behind “anonymous” trusts. It was a consensus that benefitted political parties, and because their own interests were at stake, neither party has had the courage to deal with electoral finance properly. I’m not sure that there is a problem with that particular consensus being broken. Nevertheless, that particular law is going to be tested in the coming year, through the courts, like the principles of the Treaty of Waitangi. And at least one political party has promised a thorough going review of electoral finance should they be elected. Again, not an ad hoc process, ‘though perhaps one that Moore doesn’t like.

As you can see, none of these arguments is about New Zealand becoming a republic. They are actually all about perceived problems with our existing constitution, and therefore, a need for it to be rewritten. I’m all for New Zealand becoming a republic, but I don’t think these are the arguments for it. I can’t help thinking that these are the things that Moore finds irksome about New Zealand, so he would like to change them. Even more than that, I can’t help thinking that MMP, the Treaty of Waitangi and electoral finance are issues that politicians find irksome and would like to change, to a system that suits them better. But I think that many ordinary citizens are rather pleased to have at least some constraints on politicians.

Mike Moore ignores the success of the existing New Zealand constitution in his rather specious arguments for a rewrite. We have never had a written constitution, and I’m not sure that we need one. What we have is a series of interlocking agreements, both legislative and by convention, dating back as far as the 1688 Bill of Rights, that define the way we constitute ourselves. From time to time we rewrite or change or add to those agreements, but it’s a bit here and a bit there, never a wholesale change. So for the most part we keep the framework and the warp and weft intact, just making changes that are needed, without disrupting the entire edifice. In doing this, we constitute and reconstitute ourselves, in a process that makes constitution a verb, not a noun. We engage in a constant process of revising and re-visioning ourselves. It’s never settled, it’s never certain, it’s never black and white, once and for all. And that gives us real freedom to act and to be.

So while I am for a little tinkering, replacing an unelected monarch with a republican president, I am not interested in codifying and setting in stone our understanding of who we are.

And as for the eminent persons group. Republicans bow their heads to no one by virtue of position. They might revere acheivement and expertise, but not mere eminence. In any case, who is going to be involved in and select the “eminent” persons? More politicians? I hope not. Politicians need to remember that they are the servants of the people, not the other way around, and that they work within the system that citizens give them. They most certainly should not be allowed to set up the rules themselves. I much prefer the idea of using experts to come up with some ideas, and a citizens jury to debate and decide on them. Who would the experts would be? It turns out that we are a very wealthy society, so we can afford to employ some people just to think about how we should govern ourselves, in universities, the public service, think tanks, the judiciary, even consultancy firms. There are plenty of people who have real expertise in this area, rather than picking some “eminent” people. The one major qualification for being on the panel of experts coming up with a range of ideas, or for being on the citizens jury? Members must not be, or have been, parliamentarians.

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5 responses to “Constitution is a verb

  1. It’s a bit rich for Moore to be complaining about the principles of the Treaty of Waitangi being “undefined”, given that he was, what, number three in Cabinet when the Court of Appeal defined pretty clearly what they were? Was he asleep at the time, or would he just rather that we all forgot that he approved the law and helped pass it?

  2. Excellent post, calm, measured and draws well from the past with a good dose of erudite opinion.
    I/S, your post on this is also excellent, thank you both.
    In reference to your question I/S, I wonder if Mr Moore was approached by the NZ Herald or the other way around. The smell of whiffy agenda lurks round this and his other Herald musings.

  3. Members must not be, or have been, parliamentarians.

    Hah! Exactly. I find myself more and more enamoured of the American approach to constitution which, although written, seems to be based on the premiss politicians are a necessary evil, to be constrained at every turn.

  4. Yes, an excellent coverage of Moore’s musings/opinion
    Personally I don’t see us getting a Republic till the present Queen dies but given the prospect of Charles as our ultimate ruler and all hell will break lose
    And not before time I might add

  5. Thanks for that deborah! I’ve been musing on the substance of Mike’s mutterings but have been too lazy/busy to write something up.