Colin James: Voice of the people unheard on constitutional change

COMMENT

I am at a disadvantage: I have never seen The Terminator. So I am unschooled in Arnold Schwarzenegger's qualifications to be Governor of California.

His election does tell me that celebrity is valued more than substance. Princess Diana demonstrated that six years ago in death. As the Economist drily observed, once people were famous for what they did, then for what they were, and now for being famous. Diana was vapid and empty but she looked the part. So, it appears, does Schwarzenegger.

He stuck to slogans - centrist Republican (a novelty) - on his campaign. Now he has to balance California's impossible budget.

Californians, you see, have the vote and over the past 25 years they have made it impossible to raise enough revenue to run the services they say they want.

This is because Californians don't just vote in elections of candidates. They vote to decide policy and can even throw politicians out mid-term.

Think back to 1989 here. If the people could have called a vote mid-term to throw out the hated Labour Government, it would likely have passed. The same goes for when Winston Peters kept an unpopular National Government in office after 1996. It and he would likely have gone.

Think what actually happened here in 1992-93. Given a real chance to say what they thought of two Governments that broke promises, broke hearts and broke lives, the people vented their anger by voting into law an election mechanism that tempers big parties' power.

Reflect a moment on that: on MMP the politicians turned over to the people a decision on a pivotal element of our democratic system - and agreed to be bound. They could have flicked the issue aside, as a select committee already had in 1988.

Now reflect again: the leading politician-opponent of MMP was Helen Clark. She is no enthusiast for referendums.

Referendums "should be used sparingly", she told Parliament last Wednesday on the Supreme Court Bill, "and this does not present a case for it."

How come?

"I do not believe a change in the courts structure requires a referendum."

It is, indeed, a change in the courts structure and most such changes are organisational. But this one is not a minor or technical reorganisation.

The courts are part of the constitution. It is hard to imagine a constitution without courts. The Supreme Court Bill's change to the "courts structure" is of high importance, since it radically changes the final court of appeal, the court which shapes the interpretation of our law.

That is at least a significant change in the constitution and arguably a major one.

Next, ask whose constitution it is.

Tradition says the Queen-in-Parliament is sovereign. That is descended from the ancient notion that the monarch personified the state. Since Parliament now dominates the Crown, it now owns the constitution.

So Parliament, by 63 votes to 57, can make a significant, arguably major, change to the constitution.

Most people would accept that Parliament has wide authority to act. The country can't be run by the equivalent of village meetings or by radio polls. MPs are delegates with necessarily wide discretion, for which they account at general elections.

California's severe fiscal problems demonstrate the pitfalls in too readily providing for binding referendums. There a petition of 5 per cent of the turnout in the previous gubernatorial election can get a "proposition" on the ballot paper. That is a similar hurdle to getting a non-binding referendum up here.

So to work effectively, at least in a country unused to binding referendums as this is (except, until 1987, for liquor control), the hurdle would need to be set high.

But in any case there is limited thirst for them: for lack of signature-gatherers, the Voters Voice Action Group has withdrawn its petition for a referendum on a mechanism to force binding referendums.

So Parliament decides. The poachers are the gamekeepers. And the majority in Parliament - which includes the Greens, who claim to be democratic but are only when it suits - says this is just a change in the courts structure and is, in any case, too complex for dumb ordinary folk.

Phooey. If the people own the constitution, as they probably mistakenly think they do, they can surely decide on amendments to it.

There are cautioning arguments against a binding referendum on the Supreme Court Bill. One is that referendums are majoritarian and may ride over minorities' legitimate interests (for example, in this case, over Maori opposition).

Another is that opponents have failed to get even a non-binding referendum up, which suggests no groundswell of concern.

The weakest argument is a private Cabinet fear that well-funded and unscrupulous opponents would whip talkbackland into a fearful lather and the vote would fail.

Maybe. Talkbackland is the realm of celebrity, not substance. But winning arguments before the people is what democracy ideally is. A knife-edge majority in Parliament is disputable. A judgment by the people is not.

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