Dialogue: Written constitution could give the people more say

BOB CATLEY* says centralisation of power in the cabinet has enabled a succession of governments to impose their will quickly on the nation and many people would like greater checks on the Executive.

The impetus for most proposals for reforming the structure of New Zealand's political process comes from one of three sources: a desire to stabilise the policy regime after two decades of radical and oscillating change; opposition to the continuing liberalisation of the economy; or the objective of continuing the establishment of a radical, welfarist utopia in the South Seas.

These are all understandable impulses.

The centralisation of power in the cabinet has enabled a succession of quite diverse governments, and their dominant personalities, to impose their will very quickly on New Zealand - from Muldoon, through Lange-Douglas, Richardson and Shipley-Peters, to the present Government, dubbed by its critics as Helengrad. Many people would now like greater checks on Executive power.

MMP has not provided this. Indeed, it has arguably increased cabinet power by introducing to Parliament a greater number of politicians dependent not on their independent standing with the public, but on their support within their much more ideological and Executive-controlled political party.

On the left of the spectrum many also believe a less powerful cabinet would not have been able for the past 15 years to dismantle the welfare state and public sector, with the resulting national social calamity.

Although their cries are now muted by support for the present Government doing much the same in the opposite direction, their thoughts are both valid and widespread.

Others again believe that the political system should continue to be used for the creation of a more egalitarian and new society.

To that end, Executive power should continue to be used forcefully to establish a republic, design a Maori sovereignty, dramatically equalise wealth and income and advance the cause of the environment, peace or feminism, and so on.

My brief here is more limited: how may we better stabilise and cement core and consensual values?

I have discounted quite radical constitutional proposals that deserve - and will probably receive - wider consideration, including the abolition of the monarchy and joining a closer political relationship with Australia, both of which I favour in principle.

I have also ignored issues which would merely trim the power of the Government of the day, such as abolishing the special seats for Maori, on which I am agnostic.

Instead, I concentrate on suggestions designed to create a more stable political environment, that enhance democratic procedures and facilitate a better economic performance by producing greater predictability in the policy regime.

Unlike almost all other democracies, New Zealand has no deliberately structured system of checks and balances, little separation of powers and very few review processes.

These features produce, again nearly uniquely, the almost total domination of the country by the cabinet of the day.

Unlike in the United States or Australia, whose founding fathers faced these issues in the 1780s and 1890s, the New Zealand cabinet is not restrained by: a written constitution; a powerful High Court; the need to get legislation through a Congress or Parliament that it doesn't control; a Bill of Rights (US); a House of review (Senate and even the Lords); an entrenched and powerful committee system in the legislature (US); a back bench wholly independently elected by the population (Commons); other powerful tiers of government (US, Australia, Canada); or a serious mass political party membership (New Zealand, once upon a time).

Because winner-take-all is so supreme in our political system, it often appears that the Government faces no opposition. Since National can do little to prevent Executive power being exercised, it has for the past year quite rationally had a bit of a rest. Labour did the same 10 years ago.

The result of this supreme, but temporary, power has been gyrations in public policy for 20 years. This has contributed to the poorest economic performance in the OECD and an impending exit from First World economic status.

How might this problem be addressed?

New Zealand could do with a written constitution. At present its constitutional procedure is an amalgam of the British annexation, the Treaty of Waitangi, various acts of the British Parliament and Crown, many acts of the New Zealand Parliament and a lot of procedures generally followed (even the Privy Council has been in there).

Many people, almost all of them British and fans of Edmund Burke and not necessarily including Tony Blair, think this is a good idea. New Zealanders should not.

The first, and possibly last, draft of such a constitution could be drawn up by experts - let us try the parliamentary draftsman - from existing practice as best it can be determined. It might then be readily agreed to.

Constitutions need not be long. Take out the archaic financial provisions and the Australian constitution need be only 10 pages, the American one no longer.

Parliamentary procedures are more complicated and, as in Australia, might run to 1000 pages and be printed separately, like the electoral laws, commercial codes, taxation regimes and so on.

This could then form the basis for a serious High Court to which people might appeal if the Government overstepped its power.

In both Australia and the US, the highest courts have struck down Government acts on a broad range of issues both to the left and the right - bank nationalisation, taxation, eligible members of Parliament, capital punishment, abortion and indigenous land rights - if not routinely, then frequently.

It could also enable, possibly later, the reforming of another parliamentary House of review - abolished in New Zealand in 1950 - elected separately and under different constituencies.

Usually these would be geographically based on, say, the regions of the country rather than its classes, as in the Lords, or its states, as in the US or Australia. This was always a better option than MMP and it need produce no more politicians if all list MPs had to shift.

I would favour a simple bill of rights in the constitution, and the US model or New Zealand's would serve for a first draft. If we can find a poet, a preamble would also serve to get schoolchildren interested in the text. The sovereign power of the state rests in its people - or whatever.

There is great confusion about what New Zealand is and where it is going: a welfare state returning to the fold; a liberal experiment temporally suspended; a green, underdeveloping, feminist utopia in the making; all of the above and whatever else turns up?

A written constitution would provide a legal bedrock that might help define these purposes more clearly as well as set limits to them, for New Zealanders as well as others.

*Bob Catley is professor of political studies at Otago University.

Herald Online feature: Common core values

We invite to you to contribute to the debate on core values. E-mail dialogue@herald.co.nz.