A constitution all New Zealanders can understand

Many New Zealanders don’t know the country has a constitution, let alone know what’s it in. That has to change, says Sam Bookman.

It is often said that New Zealand does not have a constitution. This is not quite correct.

In the sense that we have a broad framework which sets out how our government works, we have a constitution. Our Parliament passes laws; our executive (such as government departments) carry out those laws; and our judges, well, they judge according to those laws.

What people really mean when they say we don’t have a constitution is that we don’t have a written constitution. That makes us very unusual. In fact, alongside Israel and the United Kingdom, New Zealand is the only country in the world without a written constitution. Go to Ireland, Brazil, South Africa, even North Korea, and someone will be able to show you a single written document which sets out all the government’s powers and the rights of the citizens.

Our unwritten constitution might have some benefits, but its main problem is that it is difficult to understand. It is made up of lots of different laws, court decisions and traditions (called ‘constitutional conventions’). Any discussion of all these documents and ideas would run to hundreds of pages. Scholars, judges, lawyers and politicians often disagree about what the constitution even is, and what it includes. In 2004, this led to a public argument between the Chief Justice Dame Sian Elias, and the Deputy Prime Minister Michael Cullen.

New Zealand’s most famous constitutional scholar, Sir Geoffrey Palmer, once said that New Zealand’s constitution is like the Lewis Carroll poem The Hunting of the Snark. In that poem, a group of people unsuccessfully scour an island looking for a mythical and elusive creature, losing their sanity and even their lives in the process. In other words, Sir Geoffrey has suggested that figuring out our constitution is like searching for a creature that does not exist.

If people who spend their whole lives studying the constitution cannot agree about what it actually is, then what chance do the rest of us have?

The fact that so many New Zealanders don’t know that we have a constitution — or don’t know its contents — is disturbing. It means that many people don’t know what the government is allowed to do, and what our rights are. It lets the government get away with lots of things that in other countries would be unconstitutional: overriding decisions of the courts, giving itself extra powers or passing laws that are bad for human rights. The government can do that because very few people will notice or be able to tell it that it is wrong.

A written constitution would change all that. We would have access to a single document that clearly spells out what it is that the government is, and is not, allowed to do. It would be a document that all New Zealanders can understand, not just those who have access to lawyers and textbooks. In countries such as France, one of the world’s oldest constitutional democracies, the constitution is simple and clear enough to be taught in primary schools. In other countries, the constitution can be printed a small pocket-sized booklet. Many of us will have seen the photos of Khzir Khan, the father of an American soldier killed in battle, wave his copy of the United States Constitution as a symbol of his democratic rights earlier this year. In those countries, people have access to the document that tells them how their government works.

By having access to a written and knowable constitution, people can understand their rights and responsibilities: whether they be students, workers, migrants or retirees. This is important. Without understanding the constitution, it becomes very difficult to understand how our government might affect us. We can’t interpret a court decision, or work out whether a politician’s election promise is actually possible. Without understanding our constitution, we cannot participate fully as citizens in a democratic society. And without writing it down in one place, it is very hard to work out what the constitution is.

A few years ago, the government set up a Constitutional Advisory Panel to review our constitution. The Panel disagreed on a lot of things, but there was consensus on at least one issue: that New Zealand’s constitution is inaccessible, and that one way to fix this would be to write it all down in one place. In other words, even if we changed nothing else, everyone could at least agree that a written constitution was a good idea.

A written constitution would not solve all our problems, and we would still have to argue about what should actually go in it. But at least we would all know what the constitution was and how to find it. Knowledge is power. By letting ordinary people know what is allowed and is not allowed in our country, a written constitution would rebalance power in favour of all people: not just people in government or with law degree. Instead of hunting for the Snark, we could simply reach for a little booklet in our pockets.

The views expressed in this blog are entirely the author’s own.

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