30 November 2016: Speech by Sir Geoffrey Palmer to a meeting in Dunedin introducing A Constitution for Aotearoa New Zealand.
One of the reasons in the 1960s for deciding that a written constitution was unnecessary in New Zealand was that we were British – we did not need to write it down.
Hardly correct now – 25 per cent of the people who live here were not born here. That figure rises to 40 per cent in Auckland. People of Asian ethnicity will outnumber Māori by 2030 according to Statistics New Zealand.
How can people of diverse backgrounds understand how this country is governed unless they can find the rules altogether in one document written down?
There are some disconcerting issues emerging for governance in countries with whom we have close ties.
The United States election of Donald Trump as President and the referendum on Brexit in the United Kingdom both raise issues about how democratic politics is conducted. In particular, these developments suggest a loss of confidence in the institutions of representative government.
They challenge the manner in which politics has traditionally been conducted in western democracies. The expressions of anger, hate, racism, misogyny, lying and policy recklessness set a new low in democratic discourse. How do politics in what has been called the post-truth age of the social media work?
The Oxford Dictionaries of both Britain and American announced recently a joint US-UK word of the year “post-truth.” The new word, an adjective is defined as “…relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeal to emotion and personal belief.”
This condition has been described as a political culture in which politics have become entirely disconnected from policy and substance.
People are thinking political institutions and methods are not meeting their interests. They feel dispossessed and disconnected from the decision-makers. These developments have important implications for the way government is conducted. The methods used by professional politicians are becoming discredited.
This situation raises constitutional issues, and in particular whether the methods of democratic government can be improved so that the faith of people in democratic government and representative institutions is restored.
How can we make sense of this new political world? How much knowledge do people have about how they are governed? What capacity do citizens have to engage in public discourse and evaluate the performance of those in political office? How can they participate in a meaningful manner in the decision-making of the governments they elect?
These recent developments in two of the world’s leading democracies suggest that meeting the challenges of the future within the confines of existing political institutions will be made even more difficult. Climate change poses a serious known issue for the future. Combatting it has taken a giant step backwards, given President-Elect Trump’s policy positions.
The politics of the future pose many challenges. One point is clear. The cure will require more than providing the people with what their rulers think they want, as indicated by public opinion polling. It will require leadership on hard issues in order to future proof policies.
The future will be quite different from the past. We are not in New Zealand afflicted with some of the problems that other countries face. We ought to be able to make a reasonable fist of the future, but we will have to lift our game. We do not suffer from low trust government, incapacity of the state, corruption, social disintegration or a break-down of law and order. But the fragility of our democracy, of our institutions should give cause to pause. Lack of concern, apathy, indifference and ignorance can be very damaging to democratic values.
We think that these developments in countries with which we compare ourselves should sound warning bells. We think that these developments suggest it would be desirable to adopt a codified written Constitution in New Zealand so that the values of democratic representative government cannot so easily be blown away.
A constitution is the foundation of law and politics in any country. It should be easy to find, so that people know the basic rules by which they are governed and public power is regulated. New Zealand is one of the few countries in the world where a citizen cannot go to a single source of those rules. In the modern age it is frankly shocking this is so. There are only two other countries in the world that have constitutions as fragmented, unorganised and uncodified as we have. This alone suggests that putting all the rules in one place is the minimum that needs to happen. As matters now stand it is not clear what is “constitutional” and what is not.
The constitution governs the rules we have for making public decisions. It sets out who the people with power are. It sets up the restraints under which they must act. Given the grave consequences of policy failure in the future our public institutions need to be strengthened. The public service needs to be protected so the Government of the day cannot stop the public servants giving ministers advice they would prefer to be without. We need greater freedom of information and transparency. We need to have enhanced protection for human rights and Māori interests. We need to improve our methods of making law and we need greater adherence to the rule of law.
We have laid out how our new suggested Constitution will work, we have drafted it and described it. We will take submissions upon it and publish a final version next year. We have already had many submissions and we want as many as possible. Many of them have been very thoughtful.
Just for a moment recall the recent decision of the Divisional Court of three Judges in the United Kingdom on 3 November holding that the UK Government could not use the royal prerogative power to give notice of withdrawal under Article 50 of the Treaty of the European Union.
Parliamentary action was required. Hardly a surprising result to New Zealand lawyers schooled in the decision in Fitzgerald v Muldoon in 1976 that recognised that the rule of law and sovereignty of parliament were basic principles of the unwritten constitution. Muldoon could not suspend the operation of a statute using the royal power. To try to do so was a breach of the Bill of Rights 1688.
The judicial decision on Brexit was greeted with outpourings of scorn and derision by the media against the judges who were described by one newspaper as being “enemies of the State.” The British decision and the reaction to it shows how little even informed people in the UK understand about their own constitution. Whatever happened to the rule of law and independence of the judiciary foundational constitutional principles? What happened in 1688 is not easily brought to mind.
Whatever the Supreme Court finally decides, the furious arguments that are going on in the United Kingdom about these developments suggest to us one basic point. The primary argument for a written constitution is that it would enable everyone to know and see what the rules and institutions were that governed and directed ministers, parliamentarians, public servants, judges and other state officials and public office holders, in performing their public duties. It is the same here.
The constitutional task is all about avoiding decay and ensuring success.
Some nations are more successful than others. It has been said by the leading scholar Francis Fukuyama that to be successful a nation needs three elements:
- a competent state—which means the administration is efficient and the authority of the state is respected and free of corruption:
- strong rule of law—which means all are subject to and equal before the law, including the law makers and enforcers themselves:
- democratic accountability—that is, accountability of those in power to the people they govern.
Without these fundamental elements underpinning it, a state would not function as it would be administratively inefficient, corrupt and subject to arbitrary and wrongful abuses of government power against the citizens of the state.
The codified Constitution put forward in this book seeks to prevent this from occurring here in New Zealand by ensuring that everyone has free and easy access to the set of rules that set out government power, so that the people can hold Government to account for any breaches of the requirements and uphold the rule of law.
It facilitates accountability and competence by strengthening the system of checks and balances or safeguards within the State which keep tabs on different branches of government and protect the interests and rights of the people.
A constitution must stand above the interests of any particular political party or political philosophy. It must belong to all of the people because it is under their will that government is conducted in a democracy. They are the ultimate authority, not the Parliament.