Susanne Ruthven: Trump shows we need a proper constitution

Any law in this country can be changed by a majority of one in a single sitting of Parliament. Photo / AP
Any law in this country can be changed by a majority of one in a single sitting of Parliament. Photo / AP

Watching what's been happening recently on the world stage is unnerving and brings into sharp focus the question of how we safeguard our democracy and our hard-won rights and freedoms in Aotearoa New Zealand.

We have very few safeguards. Any law in this country can be changed by a majority of one in a single sitting of Parliament. That includes our Human Rights Act and our New Zealand Bill of Rights Act.

In theory, our Governor-General is a safety net. In reality, no Governor-General has ever used his or her powers to act without or against the advice of Ministers.

Yes, the Opposition can voice its protest loud and clear, but the voice of the Opposition cannot overcome a simple majority in Parliament. Sure, we could resort to civil unrest. But if civil unrest is the answer, then we really have a problem on our hands.

As one of only a handful of practising constitutional lawyers in New Zealand, I know how weak the rules are that limit the powers of Government. I shudder at the thought of how fragile our rights and freedoms are in New Zealand.

A constitution lays out the fundamental rules around how the country is governed. Its purpose is two-fold: To protect us against the Government's wrongful use of power and to protect fundamental human rights. In New Zealand, our constitution is unclear, inaccessible, and inadequate.

Our "unwritten" constitution is made up of a jumble of statutes - some so archaic that lawyers have difficulty interpreting them; non-binding conventions - along with a set of obscure norms which rely on politicians playing fair, and many decisions from our courts.

Like us, Britain does not have a written constitution. Brexit has highlighted how there are no rules setting out how Britain goes about leaving the EU. Most constitutional lawyers in the UK don't even know how to do it.

Unlike us and Britain, the US has a written constitution. We saw the constitutional protections in full-swing when US courts temporarily over-ruled the executive order banning travel to the US from seven Muslim-majority countries.

In New Zealand, Parliament can run rough-shot over our rights if it chooses to.
Could Parliament pass a law to kill every blue-eyed baby born? Right now it could. Sure it's an extreme example, but it highlights how much we rely on the moral compass of Parliament.

We are failing to protect ourselves for the day something goes wrong, the day we elect someone like Donald Trump.

Most New Zealanders think we are strong on human rights. Because we took a stance against nuclear weapons, our Government will stand up for our rights and freedoms. Because we were the first country to give women the vote, our Government respects democracy.

I see the slow erosion of our hard-won rights and the misuse of power.

One example is the law denying Cantabrians their democratic right to elect their regional council. The right to vote is fundamental to a democracy. What's more, this law was rammed through in haste under urgency.

Laws are passed under urgency when the Government wants to side-step any scrutiny and do something controversial.

Our laws are exposed to the whim of the Government. There are very few checks and balances in place. We don't have an Upper House, we can no longer seek redress from the Privy Council and our Supreme Court cannot strike down laws.

The protection of our rights and freedoms shouldn't be subject to political whims.
We don't think there's any risk of drowning yet we still swim between the flags, so the lifeguards will keep an eye on us.

In the same vein, a written constitution doesn't show its true value unless a government abuses its power or erodes our rights. But if that day comes, we'll be mighty pleased to have the protections a written constitution offers.

Advocating for a written constitution isn't a knee-jerk reaction to what's happening in the world. As a country, we have been debating a written constitution for many years. What's happening in the world illustrates why we need one.

• Susanne Ruthven is a constitutional lawyer working at Harbour Chambers with former prime minister Sir Geoffrey Palmer QC, author of the New Zealand Bill of Rights Act 1990. The information here does not constitute legal advice.

- NZ Herald

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