Editorial: Are we ready to have a constitution?

We have been primed for an important constitutional initiative to be announced at the Labour Party's annual conference this weekend. It will involve, by all accounts, a review of the role of the Treaty of Waitangi and other matters to be undertaken by a special committee of Parliament on which all parties will be represented - if they wish. The National Party had little interest in the idea when it was mooted since it was plainly an attempt to take the heat out of the issues raised by National's leader at Orewa last summer. Now that the Orewa wave has broken, National might be keener on an inquiry that it can truthfully say would not have happened but for the concerns Don Brash aroused.

The Prime Minister denies that, of course. She says public administration is running into a variety of constitutional issues, notably the position of the new Supreme Court which has replaced the Privy Council as the country's ultimate judicial authority. She might elaborate on that and other issues when she makes her announcement on Saturday. There are always weaknesses to consider in the way we govern ourselves. The question is whether a committee, or even a commission, of inquiry can make constitutional change.

The way in which any society governs itself is seldom decided out of the blue by learned people who decide to sit down one day and draw up a constitution. They normally decide to do so only after a war of independence, a revolution or some such upheaval that demands a wiping of the slate and a fresh start. New Zealand in 2004 happily has suffered no such upheaval, nor is it about to suffer any, although it is possible to imagine the worst that could happen if the divergence of understanding of the treaty is not resolved.

At one extreme Maori regard the treaty as an agreement between sovereign tribes and the British Crown which did not extinguish tribal sovereignty but permitted the Crown to govern by agreement with tangata whenua. The other extreme, best articulated by Dr Brash at Orewa, holds the treaty to be a complete concession of sovereignty by the chiefs to the Crown and a document which today has nothing to say about the government of New Zealand beyond issues of compensation for the dispossessed.

Between these extremes there is plenty of room for reasonable people to agree on what the treaty meant in 1840 and what rights and obligations it holds for the different descendants today. But as yet the majority, on the evidence of the response to the Orewa speech, are not ready to accord a Maori minority particular rights and powers as partners in the treaty, insisting on a strict application of the principle "one law for all". This view is so strongly held that it probably precludes agreement on a parliamentary select committee, let alone the wider community.

This view will not change until it has to change. But in the meantime there would be no harm in developing a constitutional draft that might answer the need for change if and when it arises. Something of this sort happened with the adoption of parliamentary proportional representation 10 years ago. The system we adopted was proposed by a royal commission into the electoral system in 1986. At that time there was no popular clamour for change and the royal commission's report lay largely ignored for several years. It was not until the public became sufficiently alienated by rapid economic reform that a demand arose to check the power of ruling parties and MMP was a ready-made answer.

Can some sort of model of modern constitutional application be devised in the same way to await the day the country is ready to accept it? Probably it cannot be devised by a committee of MPs but a well-chosen commission might manage it. And who knows, if the proposal was sufficiently compelling it might be adopted without rancour or conflict. That should be the aim.