Should NZ have a written constitution?

This post is part one of my draft submission to the 'constitutional conversation'. Constructive critical comments are welcome.

Should our constitution be written in a single document?

Yes. As our society becomes more diverse and more open to complex influences, domestically and globally, we need to codify the basic values, rights and institutions that have enduring worth and widespread support. We do not presently have enough checks on the unicameral parliament and the executive, and a written constitution could prevent governments and legislators from overstepping boundaries that are crucial to the values and basic rights of the people. Much of the performance of our constitution presently relies upon convention, and so a written constitution would set out the basic democratic principles in compliance with which a matter would then have to be settled in situations where there may be doubt or disagreement, or where new practices are needed.

The content of a written constitution can largely be gleaned from existing documents, such as the Cabinet Manual, the Constitution Act and the Bill of Rights Act. A constitution’s contents should be relatively brief and clearly written, so that all can understand it, and include only those essential matters that New Zealanders would not wish to see compromised or neglected by their elected representatives or by the courts. That is, it should cover those matters that we believe have been essential for the good functioning of government and law so far and that will continue to be of value for future generations. Knowing that we have developed, in the course of our history, a relatively stable system of government, a constitution should be regarded as a gift we give to future New Zealanders, for the preservation of sound and enduring values, rather than a set of rules that we hope might deal with today’s problems. In writing it, we should be thinking of that which has endured through our history, and that which, in our best judgement, will continue to be of relevance and importance to generations not yet born. We should try not to leave future citizens with a document that needs frequent amendment.

We should get on and do this job soon, while we have the luxury of time on our side, rather than wait for some unforeseeable crisis to force the need for a written constitution onto us.

Should such a written constitution have a higher legal status than other laws (supreme law)?

Yes. Although New Zealand has done well in preserving the principle of parliamentary sovereignty, it must also be admitted that executives have in the past abused their powers, and parliaments have passed legislation that was acknowledged to be discriminatory and inconsistent with the Bill of Rights Act. Given such behaviour, it would be best for the people now to constrain law-makers and administrators to certain indelibly marked boundaries.

Who should have the power to decide whether legislation is consistent with the constitution: Parliament or the Courts?

It is already parliament’s job to decide whether legislation is consistent with the Bill of Rights Act. But, on occasions, it has been decided that a Bill is inconsistent, and yet it has been passed anyway. Hence, we cannot trust legislators alone to be always the arbitrators of our constitutional rights. The courts should have the power at least to impliedly repeal, if not to strike down, legislation that is found to be inconsistent with the constitution, as a supreme law. This should not include the right of citizens to seek declaratory judgements on constitutionality from a court. Such findings should be restricted to occasions that arise from litigation involving parties affected by the Act in question. That is, I do not think that a constitutional court should be politicised by disgruntled citizens seeking to overturn legislation they happen not to like.

One criticism of the idea of giving courts the power to over-ride legislation is that it may allow unelected judges to reverse the decisions of the elected legislators who are democratically accountable. If, however, the constitutional oversight of the courts is limited to situations in which they are protecting the rights of the citizen against a parliament with full law-making powers, and only in safeguarding popularly accepted standards of human rights and due process, then this new role of the courts would be seen to be a part of the democratic rule of law, rather than an exception thereto.