Time to revisit our constitutional arrangements

The recent COVID19 emergency and the pressure it put on our civil and human liberties has got me thinking. The response, which has been internationally applauded on one hand was very well done, and true to our legal framework, when the circumstances no longer permitted them to be activated, organizations such as Civil Defence wound down accordingly. But how much trust should we place on a legal framework that in my opinion is not sufficiently codified?

Now, considering that it is election time and I feel that New Zealand needs to begin the process of overhauling that framework, I revisit the issue. My concern that it is time to revisit the issue stems from an increasingly unstable international community, constant challenges to national security, but also some basic questions regarding a national constitution.

To be clear I am not advocating for unilateral overhaul. Unilateral overhaul of the constitutional framework would be damaging for New Zealand. It would almost certainly involve some kind of breach of existing legislation and affect our obligations to the Treaty of Waitangi. Without an all-of-Parliament contribution to the process, New Zealanders will think that one party or another has hijacked the issue and is using it for their own purposes. It might engender permanent public distrust of constitutional arrangements, thereby ending any future attempt, however necessary it might be, to resume work on them.

So, the first step to get the confidence of New Zealanders, is to ask citizens and permanent residents point blank, what they want. The appropriate method is send this to a binding referendum first that asks the question “Should New Zealand adopt a formal Constitution? YES/NO”. In doing so, I accept that this is where the issue might well stop completely for the foreseeable future as a simple majority vote (e.g. 51% to 49%)is not going to be sufficient. To this end I propose that a recommended majority of 66% be necessary to permit the next step to go ahead.

If the answer is yes (66% or more), that New Zealanders DO want a Constitution, a cross party panel chaired by a former Supreme Court judge would need to be established. I say a former Supreme Court judge because the New Zealand Parliament should not be entrusted with it, and a sitting Supreme Court judge would have to recuse themselves from their judicial responsibilities.

Elsewhere I have alluded to the process that I think New Zealand would need to go through to achieve this substantial undertaking, but what sort of topic areas would we want covered in a formal Constitution? I have some thoughts below:

  • Impeachment process for removing officials who are not fit to hold the office to which they have been elected or appointed to
  • Powers of the Governor General
  • Protection of the existing acts, such as the 1986 Constitution Act, Human Rights Act 1993, Bill of Rights Act 1990 among others
  • Do we have a bi-cameral Parliamentary arrangement with an upper and lower house
  • Checks and balances controlling the ability of the Government of the day to declare war, sign treaties or trade agreements without having sent them to Parliament first
  • Where will the Treaty of Waitangi fit in amongst all of this?

If the answer is no (65% or less), that New Zealanders DO NOT want Constitution, then legislation needs to be passed. That legislation provides for the issue being revisited at some point, and sets down the process that would be followed to enable a future revisitation.

This is not a minor exercise and its undertaking will take several years. But it cannot be rushed and the country must be on board in terms of support. How well that will happen will depend on how the Government and the Opposition engage “We the people…”.

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