The case for a written Constitution in New Zealand

New Zealand Constitutional Arrangements

NEEDING REFORM

New Zealand's Constitutional Arrangements

A truly effective and relevant Constitution must completely reflect the values and norms of society's leaders and their followers (CAC, 2005). Prime movers in New Zealand believe that fundamental issues about its constitutional arrangements warrant the widest popular discussion and approval and the creation of corresponding reforms. One of these issues is the lack of a written Constitution. New Zealand is one of the only three modern nations today without a codified Constitution. The arguments favoring writtenness demonstrate its superiority. Hence, one of the reforms is the creation of a written Constitution (Salgado, 2012; Martin, 2012; Pek, 1980). The Constitutional Advisory Panel is inviting all New Zealanders to participate and express their views on this reform. Public engagement in the exercise will occur in 5 stages after which collective views will be transmitted to the Ministers for legislation (Scoop, 2012). New Zealanders and their leaders need a written Constitution.

Main Body

Current Constitutional Arrangements

A lesson to be learned is that the enforcement and stability of any Constitution depend on the extent of the acceptance and support of all the branches of government and the citizens (CAC, 2005). In written form or other, a Constitution is effective only if the leaders and the people share and enforce its norms and values. These values must be given constitutional protection if a comprehensive and lasting social agreement exists. While New Zealand's present type of constitution is not in crisis, there is need to determine if its society's key values or policy settings are comprehensively and lastingly agreeable to most of its people. On this basis, the lack of and need for consensus on fundamental issues surrounding the current constitutional arrangements justify the cost and risk of embarking in reform even when no crisis exists. What it must work for is to gain systematic attention to these constitutional issues. The House of Representatives identified the committee system, which would identify the specific changes and deal with the in the course of its Parliamentary work (CAC).

In its present structure, New Zealand enjoys flexibility in instituting constitutional reform to identified issues (CAC, 2005). The key elements involved in the process include accurate, authoritative, neutral, responsible and accessible public information; non-partisan mechanisms for the public discussion of these; specific processes to facilitate public discussion; specific processes for models or principles into specific reform areas; processes for public decision-making, such as a referendum; and sufficient time for absorption and deliberation on the issues (CAC).

A number of processes have been applied in changing New Zealand's constitutional arrangements since it acquired full law-making authority in 1947 (CAC, 2005). Ordinary legislation was the central process, as in the case of the Constitution Act of 1986. Other techniques are legislation with a super majority of 75% or more, as in the case of the Electoral Act1993 and the Constitution Act 1996; a combination of public discussion paper and ordinary legislation, as in the Supreme Court Act 2003 and the New Zealand Bill of Rights Act 1990; law commission report and select committee consideration, as in Parliament's role in Treaty-making; referenda, as on the term of Parliament in 1967 and 1990; and by a royal commission, followed by a referendum, parliamentary consideration of legislation and another referendum, as in the case of the adoption of MMP, or mixed-member proportional, voting (CAC).

Advantages of Constitutional Writtenness

The key assumptions are that writtenness best promote the principle in question and that the particular principle enhances the substantive objectives of the rule of law (Pek, 1980). The arguments on the superiority of writtenness are based on the principle of publicity, clarity, and constancy. The principle of publicity makes a written Constitution more accessible than an unwritten one. The scattered and often intangible sources of an unwritten Constitution do not allow public scrutiny of government action. A written Constitution, in contrast, serves as a political check on government. The principle of clarity, already discussed earlier, explicitly sets the limits of government action. And the principle of constancy fixes the intents of the Constitution and the law permanently. That adds a quality of stability to it (Pek).

Soliciting New Zealanders' Participating in the Review Process

The Constitutional Advisory Panel invites all New Zealanders to join and get involved in the changes to be made on their country's constitutional amendments (Scoop, 2012). This independent panel will gather the people's feedback and comments on a wide range of issues concerning them. Among these issues are the creation of a written Constitution, the role of the Treaty of Waitangi, the Bill of Rights Act and parliamentary term of office. Then the panel will report these to the Ministers by the end of 2013 (Scoop).

The engagement plan of the panel will be implemented in stages (Scoop, 2012). It will first prepare the resources and build relationships as the foundation of the process. It will then create public understanding of the current constitutional arrangements. This will be followed with actual engaging with communities for their views, suggestions and sentiments. The panel will then work with a cross section of New Zealanders in considering the gathered views from the people by the panel. And the panel will report all gathered information to the Ministers (Scoop).

The people's involvement in the review of their constitutional arrangement will take five stages (Scoop, 2012). Under Stage 1 on preparing the ground, the necessary tools and relationships for a successful engagement will be developed. Stage 2 is on building understanding about the current arrangements and participation in the constitutional engagement and discussion of issues. Stage 3 is thinking together as a broad and varied range of networks and communities. It will encourage these networks to submit their views to the panel and attend face-to-face meetings. Conversations, discussions and deliberations with select groups of New Zealanders of the feedback and comments gathered from Stage 3. And the presentation of the overall comments and feedback by the panel to the Ministers by the end of 2013 will be Stage 5. At present, the panel is still in Stage 1. It has begun discussing with key stakeholders, such as community groups, academicians and Maori stakeholders on how to best communicate with New Zealanders, especially Maori, on their views about fundamental issues surrounding constitutional arrangements. These constitutional arrangements are the link between the people and their government and their means of collectively governing the country and themselves. Their full understanding of, and participation in, this exercise are essential in making these constitutional arrangements truly reflect their values and aspirations (Scoop).

Conclusion

An efficient Constitution must truly reflect the values, norms and sentiments of a society's leaders and their people. New Zealand is one of the only three modern nations today without a written or codified Constitution. Even without a constitutional crisis, the leaders of New Zealand believe certain fundamental issues justify the risks and costs of assessing and re-aligning constitutional arrangements with the people's views. One of these issues is the lack of a codified Constitution. In response to the felt need for reforms, the Constitutional Advisory Panel has begun inviting New Zealanders to express their views on these issues and their corresponding reforms. The engagement plan with the people consists of 5 stages. Select New Zealanders will comment on the people's views. Then collective views will be transmitted to the Ministers by the end of 2013 for legislation. The time is ripe for a codified Constitution for New Zealand. #