It is now time to save our Constitution

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New Zealand’s Parliament is where the Constitution should be saved (File Photo)

Kieran Madden
Auckland, May 15, 2022

Unite against Covid-19. Stay at home, save lives. Save our constitution.

One of these things is not like the other. Public Health was the immediate focus and goal during the Covid-19 outbreak. The “relentless pursuit of this Government,” the Prime Minister said earlier this year, was “to save as many lives as possible and to protect jobs and cushion the blow to the economy.” While our economy is in questionable health, we did well on the saving lives front. Our case count, hospitalisations, and deaths were the lowest in the OECD. This is worthy of celebration.

Culture under attack

But there was a less obvious casualty in this relentless focus on saving lives, we made unnecessary constitutional mistakes along the way. Maxim Institute Research Fellow Alex Penk has stepped back and looked at the bigger constitutional picture over two years in a paper released last week: Covid and Our Constitution: How A Pandemic Affected Our Body Politic and Culture. Having comprehensively surveyed relevant court cases, reports, and legislation introduced other the past two years, Penk argues our constitutional culture has been haemorrhaging.

Our constitution is precious but fragile. Constitutions “create power, legitimate it, and limit it,” and reflect and protect our shared values like civility, protection of minority rights, and parliamentary sovereignty. One major problem Penk outlines is a “rising tide of incivility,” we are building on what we share has become almost impossible—even talk of values has been shut down. Public discourse is more polarised, twisted, and toxic than ever before.

Kieran Madden

Our short-term mindset is another. Desperate times call for desperate measures as the saying goes, but unprecedented times call for unprecedented measures. The thing is, as Penk (and the High Court) notes, Covid was “extraordinary,” but not wholly unprecedented. The Spanish Flu, for example, ravaged New Zealand in 1918; 9000 people dead in two months. Similar lockdowns have been imposed in the past too. Governments of all stripes failed to plan for this, relying on reactive orders rather than proactive regulation.

Never too late to mend

These are just two of the areas that Penk explores in this timely paper. While his overall assessment is that the formal machinery of our constitution like the courts and select committee review “generally served us well” over the crisis, our constitutional culture needs rejuvenation. The prognosis is dire, but there is a good prospect for recovery. It’s not too late.

Without a healthy constitutional culture, no amount of institutional tinkering will save our constitution. The paper suggests the next steps for our cultural recovery include firstly, promoting a more genuinely civil discourse where values are discussed; secondly, coming together to heal the “social virus” of polarisation; and finally, learning the lessons of history and doing the work to better for the next inevitable crisis. This is not just up to leaders to model and change; we all have our part to play.

We saved lives, but we now need to save our constitution and the culture that gives it life as well. Our nation’s long-term health depends on it.

Kieran Madden is Research Manager at Maxim Institute based in Auckland.

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