Constitutional reform – the need of our times

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By Guy Hatchard

Sometimes in life we find ourselves at a moral crossroads. On the path of our development as a nation that point has now arrived for New Zealand. No one should think that the failure of our governmental system, which has just happened, will not impact their life and that of their children. A bond of trust between our government and us has been broken.

Our parent’s generation knew that once discriminatory laws that disenfranchise whole sections of society are passed a precedent has been set. Loss of profession, freedom of movement, housing, income, education, and personal medical choice for many of us invoke the darkest days of the last century. This government has crossed its Rubicon. How soon will it be before other discriminatory laws are passed? Something has to be done.

Two years ago, full of confidence, we voted into power a government who had promised us a more caring and intelligent future. It was not to be. Why?

What we didn’t know or had forgotten

Concepts of national law in cultures all around the world were originally derived from philosophical ideas of Natural Law and/or God’s will. The idea is that people everywhere are subject to universal laws of nature. For example, the sun shines on everyone equally. It gives life to all.

Thus early concepts of the rule of law assumed that the king would be just and benevolent as they considered nature to be. As time went on confidence in the benevolence of rulers gave way to an acceptance of the need for shared responsibility. In 13th century England, Baron Simon De Montfort called together two parliaments. The first stripped King Henry III of unlimited powers and the second enfranchised citizens in the towns.

From then on parliamentary systems evolved with more checks and balances on the exercise of governmental executive authority and the legislative power vested in parliaments. The intention of these is to avoid parliamentary overreach and exclusion of the interests of minorities and stakeholders, and to provide a measure of continuity of responsibility beyond that afforded by the short elective term of parliaments such as ours.

It has also been considered very necessary to have an independent judiciary. This was achieved in the UK through the concept of common law – what is naturally fair between persons, and between the individual and the state. In the USA this was achieved through a written constitution.

Being a young democracy, New Zealand initially relied on the British courts for determinations of common law. When we broke from the British Privy Council in 2004, we left behind some of the checks and balances in British common law. We didn’t realise it at the time, but this has left the NZ political system vulnerable to undue influence and manipulation.

Key weaknesses in the NZ system include:

  • Parliament is supreme. 62 newcomers can pass any law without reference to any longstanding body of wisdom.
  • The NZ Bill of Rights is advisory only – we have no rights other than those granted to us by whomsoever happens to be in the majority this week.
  • We don’t have a formal written constitution – leaving the door open for the abuse of power.
  • Because of parliamentary privilege politicians are not obliged to speak the truth and there are no mechanisms such as impeachment to hold them to account for lying.
  • The judiciary serves the dictates of Parliament – there is little reference to universal standards of fairness.
  • Control of much of our economy and the media is in the hands of foreign entities who wield subtle influence on government.
  • Levels of party allegiance and conformity restrict independent discussion.

Jacinda Ardern’s Labour government did not win a mandate to upend our Kiwi values, but they chose to do so in the form of the divisive covid legislation. They did not win a mandate for social control, but they have begun manipulating information as in their assurances of covid vaccine safety and effectiveness in the face of clear evidence to the contrary.

Immediate fixes that avoid social disruption are possible:

  • The NZ Bill of Rights could be ‘entrenched’ as a constitutional provision that is beyond the reach of parliament alone to alter. This will strengthen the individual rights that the judiciary can protect.
  • The control exercised by party whips can be reduced to allow MPs to vote more often according to conscience. For example by reducing the MMP threshold to one per cent.
  • Parliamentarians should not be allowed to tell lies once they step outside the debating chamber, but should be subject to the same laws as anyone else.
  • Provisions of direct democracy such as those in Switzerland can be introduced and implemented through the use of modern technology.
  • Options for choices in health and education need to be strengthened.

A NZ constitutional conference should be called to discuss these and other issues which would strengthen our democratic institutions.

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