Do we want a formal written constitution?
By Prue Hyman
This may feel like a pretty boring topic, but it DOES matter.
Of course we have lots of bits and pieces of a constitution in various Acts of Parliament (including the Bill of Rights and human rights legislation), judgments and precedents – and we have the Treaty of Waitangi.
But there is no overall document with the ultimate power when politicians write new legislation – to enable the legislation to be challenged on constitutional grounds. And politicians often say that documents, including the Treaty, mean whatever they feel like defending at the time.
Earlier constitution attempts
We’ve been talking about this on and off for many years. Remember the Constitutional Advisory Panel, co-chaired by John Burrows and Sir Tipene O’Regan that
ran from 2011 to 2013 as a result of the National/Maori party accord after the 2008 election?
It conducted a ‘constitutional conversation’ during 2013, received over five thousand submissions, and made some good, if limited recommendations in its report – which is still worth reading at http://www.ourconstitution.org.nz/store/doc/FR_Full_Report.pdf.
The recommendations included developing a national strategy for civics and citizenship education in schools and in the community, including the unique role of
the Treaty and assigning responsibility for the implementation of the strategy.
It discussed a written constitution, the role of the Treaty, Maori representation in many areas, the size of Parliament and the electoral term (reporting fairly high levels of support for a four year term). The ongoing work the Panel wanted in many areas disappeared with little trace.
Matike Mai Aotearoa report
Equally or more important, and probably even less widely discussed, was the 2016 report of the Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation (http://www.converge.org.nz/pma/MatikeMaiAotearoaReport.pdf).
Its Terms of Reference were broad – “To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition.” Its Chair was Margaret Mutu and its convenor Moana Jackson and it held as many as 252 hui between 2012 and 2015.
Its trenchent discussion and important alternative models with the Treaty central should be widely discussed. “The kaupapa underlying the suggested indicative models is that Te Tiriti envisaged the continuing exercise of rangatiratanga while granting a place for kawanatanga.
It provided for what the Waitangi Tribunal recently described as “different spheres of influence” which allowed for both the independent exercise of rangatiratanga and kawanatanga and the expectation that there would also be an interdependent sphere where they might make joint decisions.
Rangatiratanga and Kawanatanga
We call those spheres of influence the “rangatiratanga sphere”, where Maori make decisions for Maori and the “kawanatanga sphere” where the Crown will make decisions for its people.
The sphere where they will work together as equals we call the “relational sphere” because it is where the Tiriti relationship will operate. It is the sphere where a conciliatory and consensual democracy would be most needed.”
The report recommended that “at an appropriate time during the next five years Iwi, Hapu, and lead Maori organisations initiate formal dialogue with the Crown and local authorities about the need for and possibilities of constitutional transformation” and transformation means just that, really major changes, with several indicative models canvassed. This should be a major challenge for government.
Geoffrey Palmer’s book
Another strand in the debates is a recent book by Sir Geoffrey Palmer and constitutional expert Dr Andrew Butler, explicitly calling for a written constitution.
They say it should be “easy to understand, reflect New Zealand’s identity, enhance public confidence in government, and better protect rights and liberties” – with public participation and involvement a core aim of their project.
Despite this emphasis, they have a fully developed proposal, at http://constitutionaotearoa.org.nz/constitution/read-chapters/proposed-constitution-full-text/ with 17 parts and an appendix (the Treaty in both Maori and English).
Maybe that’s a good thing – most of the suggestions in the 2013 report are the result of extensive consultations and writing by committee and are therefore highly tentative.
The preamble lists six basic principles on which it is based. Shortened, they are the democratic basis of government with separation of powers, transparency and public participation, the rule of law, respect for the Treaty, human rights and liberties, and respect for the international rule of law.
‘Nitty gritty’ issues for a later column
Unfortunately this article has to be too short to get into some of the nitty gritty issues – maybe next month. For now, just one point. Clause One of the Palmer/Butler draft asserts the supremacy of the Constitution – “Where there is an inconsistency between any law and any provision of this Constitution, the provision of this Constitution prevails.”
This could provoke some fear among politicians who like to pass legislation rapidly in response to whatever is the latest issue. There is provision, though, for amending the Constitution – with a 75% majority in Parliament and a majority of votes at a referendum (if I read clause 116 correctly!) The Treaty appendix cannot be amended.
It will be a pity if the issue of a written constitution is always put into the ‘too hard’ basket. I can’t decide what is it priority given our pressing problems – climate change and the environment, poverty and inequality, and the rest – but it is worth serious discussion.