Time for a Constitution Party?


As the Queen begins to wind down her daily activities, and her husband Prince Philip, Duke of Edinburgh enjoys retirement it is time to consider what sort of constitutional arrangement New Zealand wants going forward. New Zealand does not have a formal constitution per se – its current arrangement is a framework of six Acts of Parliament and the Bill of Rights 1990.

I have tried to outline my thoughts on the best process to revisit our arrangements, which I expect will come under scrutiny once the Queen dies. But before then there is considerable work to be done. New Zealand needs to have a debate about our interpretation of our constitutional framework – can we even consider it to be that, and if not what is it?

Whilst I have outlined my ideas, I have wondered about whether or not New Zealand needs a Constitution Party or similar in Parliament to push the issue. Of course, like every other party it needs to be established and needs to get into Parliament. Would someone like Sir Geoffrey Palmer be a suitable person to lead it – an obscure figure from the political wilderness would be meaningless. Colin Craig reckoned he could lead the Conservative Party into Parliament. After spending hundreds of thousands of dollars of his own money he and his party managed 2.2% at the 2011 election.

With only a few years until the Queen either abdicates or dies, New Zealand cannot afford to continue taking a “she’ll be right” approach to our constitutional arrangements. But without some sort of organization or party to turn the spotlight on something many are happy ignoring, the potential for a problematic knee jerk “what do we do now” approach exists.

Answering questions about becoming a Republic


As I watched coverage of the Duke of Edinburgh’s car crash I was reminded that this is a man who is in his late 90’s. I was also reminded that his wife, and New Zealand’s head of state Queen Elizabeth II is also over 90. With their great and advancing age, one must assume that they will be starting to wind down their official engagements.

And as they contemplate whether to, or how to wind down their engagements, New Zealand needs to be stepping up its national conversation about our constitutional arrangements once they depart.

I have never seen the need for a foreigner as New Zealand’s head of state. As a grown up nation that has a degree of civility lacking in many others, I believe New Zealand is more than capable of having its own head of state. However I know many people who do not believe New Zealand is ready to become a Republic, or that it is not needed or welcome.

I have mentioned my reasoning for a Republic, the process I believe would be necessary to achieve it and what it might look like in past articles. This article is more about addressing public concerns about how a Republic might look and function. This is part of the debate that is necessary to have in order to inform public opinion prior to any attempt at changing how New Zealand determines its Head of State.

What will happen to the Treaty of Waitangi and the settlements reached under a Republic?

Under a Republic, New Zealand will transfer responsibility for the Treaty of Waitangi from the Crown to the Head of State. The Treaty itself and the settlements reached with Iwi will not be affected in any way by this change. This is commonly acknowledged by the Monarchist League as well as the Republican Movement.

Will New Zealand be made to leave the Commonwealth should it become a Republic?

No. Most nations in the British Commonwealth are already Republics – India, Pakistan, South Africa, Singapore, Malaysia, Nauru, to name just a few. There are 52 nations in the Commonwealth and 36 of them are Republics.

New Zealand’s heritage is British

This is a fortunately dying tunnel vision argument that ignores the fact that New Zealand is now a multicultural nation with large Pacific Island and Asian communities. Nothing about becoming a Republic will change our culture – we will still play cricket and aspire to one day win the Cricket World Cup; Queen’s English will still be the dominant language and New Zealanders will still be as welcome as they have ever been in the United Kingdom.

Should New Zealand become a Republic, what are the types of Republic?

There are several types of Republic. The one that New Zealand is physically closest to in terms of governance is the Parliamentary Republic. This type means that the President would largely be a figure head with mainly ceremonial but also constitutional powers – greeting Heads of Government and Heads of State, appointing and dismissing Cabinet members and – heaven forbid this happen – enact any necessary declaration of war on a foreign power.

A Presidential Republic is more like the United States, where the President has a large role in the day to day running of the Government and may make key foreign policy decisions. This is in addition to the ceremonial and constitutional roles as mentioned above.

There are other types of Republic including Semi-Presidential Republic, where the Head of State takes responsibility for foreign policy whilst the Head of Government looks after domestic policy. Examples include France and Taiwan.

Other types exist as well, but these are the three types New Zealand would be most likely to vote for a number of simple reasons. New Zealand is not Islamic so therefore we cannot have an Islamic Republic. The best known such example is the Islamic Republic of Iran. The Peoples Republic and Democratic Peoples Republic are typically aligned with Marxist-Leninist politics and with the exception of the Peoples Republic of China and Laos Peoples Democratic Republic, all have failed.

Republics are unstable, so why have one?

So are Monarch’s. Tonga, one of the worlds last Absolute Monarchy’s was plunged into devastating riots in 2006 as a result of widespread anger at the lack of democratic progress in the Government.

Swaziland (now Eswatini) is another. King Mswati III is well known for leading a luxurious lifestyle that is increasingly the cause of internal unrest, as well as international criticism. He holds all the powers of the state, as well as holding control over the legislature and the courts.

 

Winston Peters ignites flag debate


Acting Prime Minister Winston Peters has reignited the flag debate, two years after a national referendum rejected the idea of a new flag. The restarting of the flag debate came after he called on Australia for reasons I am not yet clear on, to change their own flag – imagine that, a(n acting) New Zealand Prime Minister telling Australia to change its flag – because New Zealand had apparently had its flag longer and the Australians had merely copied us.

I actually support changing the flag. There is however a simple reason why I refused to support the referendum in 2016 – it was too sudden for many New Zealanders and raised a bright red flag: why now? What was the then Prime Minister John Key trying to hide or divert our attention from? It just all seemed suspicious.

But also, this is the flag that thousands of New Zealanders fought and died for. This is the flag that my Grandmother’s brother Lance Corporal Eric Dennis Green died for. Whilst the wartime generation is still alive, this is not the time to change that flag.

However, the correct procedures I believe were followed for having a flag referendum. The referendum was to happen in two stages:

  1. Ask whether the public want a flag change or not – this would be a simple YES/NO referendum. It would be binding, meaning whatever outcome would have to be respected and acted on by the Government
  2. ASSUMING the answer is YES, then ask from the two most popular designs, which flag should be our new one

None of the designs in the 2015 competition, or the two that were shortlisted should New Zealand have said yes, were inspiring in the least. In fact Red Fern looked more like a corporate logo than anything else.

I have had thoughts about what a flag could look like. One idea that I have had would be the outline of a Kea (nestor notabilis), New Zealand’s cheeky and inquisitive alpine parrot whose behavioural characteristics I think nicely sum up how New Zealanders aspire to be – social, inquisitive about the world around them and perhaps a tad cheeky.

It will however have to happen at an appropriate time. The earliest such occasion that I can think of would be the death of Queen Elizabeth II, our reigning sovereign. At that point it would be appropriate to go through the full rigarmole – seeing if the people of New Zealand wish to set about overhauling the constitutional arrangements, changing the flag, and then adhering to their wishes, whatever they may be.

So, the day of a new flag is coming. It was a premature dawn on the idea in 2016 and New Zealanders knew and understood it then. But that dawn is coming – it just might be another several years.

 

 

New Zealand needs to decide on a formal Constitution


Former Prime Minister Sir Geoffrey Palmer has written about his desire as a constitutional lawyer to see New Zealand adopt a formal constitution. And as a citizen concerned about an encroaching surveillance state, abuses of New Zealand and international human rights laws and an increasingly unstable world, I can understand his reasoning – albeit for different reasons to the ones he mentioned.

The current constitutional legal framework is a hodge podge of several different Acts of Parliament. Whilst all are relevant, several have provisions that are old or unwieldy in use. There is also no clear cut set of checks and balances to stop these Acts being abused, amended unnecessarily or even (however unlikely it might seem) revoked. Currently there is a risk that if New Zealand has a referendum on the matter, it will not be binding and that therefore Members of Parliament may elect to ignore the will of the public.

I have worked out a step by step process that I believe needs to be followed in establishing a constitution:

  1. Announce a binding referendum whose wording needs to be simple, such as: Should New Zealand adopt a formal constitution? YES/NO.
  2. Establish a working group to guide the referendum and explore what to do based on different outcomes – if the result is YES, who takes charge and how to involve the people of New Zealand; if the result is NO, will legislative changes be necessary to reflect the outcome and if so, what?
  3. In the period between announcing and holding the referendum, an intensive effort utilizing radio, internet, television and newspaper highlighting the referendum; drop in sessions at high schools and tertiary institutions; public meetings and so forth.
  4. The referendum is held
  5. The result announced and acted on (if the vote is YES, announce a timetable within weeks for the next step; if the vote is NO, make any legislative changes recommended and stop)
  6. ONLY if the vote is YES: Prepare a draft constitution
  7. ONLY if the vote is YES: Submit to public for consultation
  8. ONLY if the vote is YES: Prepare amended version based on public submissions
  9. ONLY if the vote is YES: Public vote on final version

Any constitution will need to deal with the following issues among others:

  • Where does the Treaty of Waitangi fit into New Zealand law
  • Impeachment proceedings for public servants who endanger or bring their office into disrepute
  • Codifying the basic rights of New Zealanders
  • Establishing minimum requirements for non codified laws to be repealed/amended

I personally believe New Zealand should adopt a formal constitution. However I would want to know that any Constitution of New Zealand comes about because New Zealanders had a binding referendum in which they voted for it. It does not need to be a fundamentally entrenched one like the United States, where politicians and private citizens alike are starting to wish there was more flexibility in the system. But I do not believe the current hodge podge arrangement with its inadequate checks and balances is the answer.

 

Until next time, this is the New Zealand Flag


This is not an endorsement of the current New Zealand flag. This is simply accepting that for the time being the New Zealand people have decided that the Union Jack + 4 Stars of the Southern Cross shall be the New Zealand flag.

The time for changing the flag is coming. This was not it for  several reasons, not least key voting constituencies were not having a bar of a new flag, but also because there seemed to be something quite artificial about the manner in which it was done.

We might not know the full rationale that led Prime Minister John Key to think that there would be a good sound case for changing the flag. However, we do know that in the years and months proceeding it, there was a determined and persistently strong chorus of resistance that the Prime Minister ended up not being able to ignore. It came from all corners of society, from fellow National party members, to war vets and even to those barely old enough to vote, but old enough none the less to realize the importance attached to the flag.

Although the Prime Minister may have gotten it wrong this, as many think he did, Mr Key may have set off something larger in terms of constitutional change whose full impact might not be known for several years. This something – whatever it maybe – may end up being the true legacy of an otherwise unspectacular Prime Minister.

For me it was the links to Britannia and the acknowledgement that the wartime generation fought and died for this flag. It was an acknowledgement that under this flag, although the Silver Fern is imprinted on New Zealand graves overseas, 30,000 men and women in two world wars and a host of smaller conflicts went to war under it and did not come back under it. I cannot ignore that.

But eventually that generation will die out. And sometime between now and then, the ultimate symbol of Britannia that New Zealanders fought and died for, the Queen of England will die too. As a figurehead of the monarchy who grew in stature and saw off some of the most challenging post war issues in Britain, the Queen as much as the Union Jack in the corner of the flag was – and still is – a link back to a place that some call the Motherland or the Fatherland.

When that connection is severed – it might be tomorrow or another decade and a half – I will acknowledge the departure of the link between New Zealand and the British Empire, for the Union Jack will then be redundant. It will be a part of yesteryear, just like the old naval ensign. That time is coming, but this was not it.

So, enjoy this flag whilst it lasts because when change eventually comes, even the traditionalists are going to have a hard time stopping the tide.

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