While the talk of a written Constitution covering all aspect of New Zealand has been with us since many years, it is only in recent times that governments have given a serious thought to such a serious exercise.
The current National-led Government has put in place a 12-member Constitutional Review Panel, which has initiated a nationwide conversation seeking public output, so as to submit a report to the Beehive later this year.
A report appearing in our Homelink pages in this issue outlines the importance of a Constitution and the need for your say in its format, extent and content. New Zealand, Britain and Israel are the three democracies that do not have a written Constitution. Saudi Arabia, which also does not have such a document, follows the tenets of Sharia in its legal and administrative framework.
There is an increasing talk in Britain as well towards such a move.
Some have argued against the need for a Constitution since for conventions have been the basis for governance for hundreds of years in Britain and for more than a century in New Zealand.
However, as the founding fathers in larger democracies such as India and US have said, a written Constitution ‘legitamises the character of a nation’ and eliminates the ambiguity in its legal conduct.
A constitution is a set of rules regulating the powers of a country’s government and the rights and duties of its citizens. There is considerable debate as to whether a written constitution ought to be introduced in order to align New Zealand with other nations, or whether the current system should be retained.
The fact that the British constitution is not written down in a single document does not mean that it does not exist. It is made up of a number of different written documents (including Magna Carta, the Bill of Rights, the Act of Settlement and the Parliament Acts) and unwritten conventions (including the fact that the House of Lords does not oppose legislation from the House of Commons if it was part of the Government’s manifesto).
Has the absence of a written constitution allowed the UK Executive to become too powerful?
Political observers and experts have argued that for most of the 20th century, there was an unofficial understanding between members of the political establishment that the government of the day would not tinker with constitutional arrangements for short-term or self-interested reasons. They believed that changes to the Constitution would be made only after a period of consultation and with broad cross-party support. In UK, such consensus has been eroded over the last thirty years.
In fact, Britain’s experience would be an ideal lesson for New Zealand and an argument in favour of a written constitution.
In contrast to their predecessors, neither Margaret Thatcher nor Tony Blair (both iconoclastic leaders with large parliamentary majorities) felt themselves constrained by precedent or evolved practice.
In contemporary Britain, the government does not see the need to draw any distinction between changes to the constitution and changes in, for example, health or education policy. The players in the political game can change the rules of the game itself, and regularly do so, in a way, which is not possible in other developed democracies.
Many people argue that the UK needs a written constitution in order to restrain the unbridled power of the Executive. However, with the Executive located in and dominating Parliament, anything that limits the power of the Government undermines the traditional doctrine of parliamentary sovereignty.
A written constitution, in particular, would refute the convention that no future government can be bound irrevocably by the actions of a former government.
