The Law Society and constitutional crisis

The Original Constitutional Crisis
Constitutions are dynamic as they need to adapt to deal with the major problems of the day. That is their purpose; to create rules to help run a democratic society according to our values. In my previous article I suggested the following problems were things a constitution could help our democracy deal with:
  • secure civil rights
  • political parties campaigning on one set of policies, then getting in and acting like dictators by doing something completely different. 
  • small third parties holding democracy hostage to their whims, or pulling politics into extremist positions, ( action on climate change was held back by small parties and look where we are now). 
  • government being paralysed by a lack of consensus. 
  • tyranny by the rich.
But among the comments it was said a constitution can’t deliver the things I have suggested, i.e., a written constitution simply does not do these things.  And this is a problem a written constitution will face; an indoctrinated pre-conception that a written constitution is largely about following the pattern of 18th century constitutions, i.e., a timeless classical and enduring form is what is needed. Rubbish.
To demonstrate it can do the things I suggest, let’s look at one of the prime examples, the US constitution. At the time of the formation of the US the main example for democracy was classical Greece. Not a lot of help.* But many of the wealthy participants in the conference to create the US constitution were terrified by the idea of the illiterate masses getting hold of the government and start doing things. So they made the President like a king, the Senate like an aristocracy, and Congress like a parliament. So all the work of Congress could be carefully controlled and supervised by the wealthy elites.  The president of course was not elected by the people but by the electors.
The US was barely a democracy as we understand one today. And it’s democracy and economy still suffers today from that poorly designed framework which holds back the betterment of its people and the growth of its economy. But they did design the constitution to deal with the problems as they saw it in their day. And the ideas that they had were from a time, over 200 years ago, when the whole concept of the role of government was tiny to what the government is tasked and capable of dealing with today.
James Madison one of the founders of that US constitution did not see a constituion as a permanent structure but said the constitution should be changed on a regular basis. I.e. a constitution has to adapt to the issues it faces on how to run a democracy. Of course kings and dictators don’t need constitutions and a democracy should have rules to stop these outcomes arising.
The reality of a constitution having to deal with modern democratic problems is most clearly seen in the terrifying example of the state of Israel. Like us it has a proportional representation system but with a multitude of small parties. But the chances of a moderate centrist government as they had under Yitzhak Rabin has been squeezed out by the rise of extremism. To form governments centrists have to pander to extremist parties; they can’t call them out or take them on as their government will fall. And when I say extremist, a few of these parties believe in the end times and bringing about the end of world; and what some say about Palestinians is deplorable. Democracy in the state of Israel is becoming a stain on the credibility of democracy as a form of government. 
New Zealand already has an example of how a constitution could shape the functioning of parliament. Mr Peters had an idea of creating a superannuation fund but the agreement was he had to take it out for a referendum. It didn’t get the votes. This could be used to prevent small party policies dominating the large parties policies, i.e., they must be able to demonstrate their policies to the nation and not rely on smoke and whiskey fuelled back room deals. (Referendums must be properly funded to fairly demonstrate the pros and con, and with some money to promote).  And to prevent a major party presenting it as their own rather than the small party it would have had to have been in the main parties election manifesto. This is just an example of a tiny idea about how we can use rules in a constitution to shape our democracy so the tail does not wag the dog. 
The idea of basing a written constitution on a static 18th century concept is not helpful. A constitution could be reviewed every 10 or 20 years by public submissions and a panel from our best active academics with perhaps a few from overseas to give balance to hopefully make it less at risk of local politics? Bring on the debate the crisis is already here. 
*The book ‘The Dawn of Everything’ by David Graeber and David Wengrow has fascinating insights on how early interaction with North American Indian societies helped shape Enlightenment thinking on freedom and society. And ultimately that impacted democracy.
p.s. To the jerk who suggested I’m the no1 wannabe lawyer in NZ. I do know and have heard of many great and principled lawyers but there’s just too many scumbag lawyers for me to desire that moniker. And we live in a democracy; and that’s just too precious to left to lawyers.


  1. 🙂
    “…………..but there’s just too many scumbag lawyers for me to desire that moniker.”
    @Magit probably one of them.

  2. You skirted around the issue on how the Treaty of Waitangi fits in your constitution.

    Instead of the “tyranny of the rich” we could end up with the “tyranny of the 17%”.

    You need to define “democracy” for on one side you have the one person/one equal vote brigade and on the other you have the Willie Jackson interpretation that is a “new” democracy where 17%=50% vote and 83% =50% vote.

    What is your definition of “democracy”? If the Israel one does not suit what is your recommendations?

    In New Zealand the minor parties are 100% beholding to the two main parties. Case in point; the Greens with ACT not far behind. For all the grandstanding the Maori party does it is but a voice in the wilderness and able to achieve diddly squat in terms of legislation or main party policy changes. If we drop the 5% threshold down to 3% and have the TOP and NZFirst in parliament, will we have a better functioning “democracy” or end up with the Israel situation?

    Maybe you could draft a tentative constitution for us to discuss? For while you shoot down detractors of your non defined constitution, and conveniently don’t publish what you would like to see in a constitution that would rectify all the problems you expound. Hence the vitriol of comments in your last post.

  3. The US constitution did in fact adapt. They’re called ‘amendments’ and require a supermajority to get them passed.

  4. A constitution that is reviewed every 10 or 20 years? No thank you.

    That is why we have elections every three years, though I would prefer once every four years. The issues that come up regularly are the issues that should be contested in elections.

    Yes, constitutions do evolve, but on a longer time cycle than Stephen suggests. A modern written constitution for New Zealand would have to deal with the role of parliament, the role of head of state, the role of the judiciary, and the fundamental rights of citizens and residents. I would say these rights would be limited to the rights set out in the New Zealand Bill of Rights. Yes, you could could put in a whole host of social and economic rights, but these are typically the things of political contest. For instance different governments have different views as to the number of state houses there should be.

    A New Zealand Constitution would also have to deal with the place of the Treaty of Waitangi.

    There would need to be a process to amend the constitution, either by referendum or a parliamentary super majority.

    In my view, the adoption of any written constitution would have to supported by a referendum, though a case can be made that a constitution that was simply a codification of existing arrangements would not need a referendum. Sir Geoffrey Palmer introduced the 1986 Constitution Act by an ordinary act of parliament. However, this means it is also an ordinary act. A serious written constitution that is seen to sit above parliament would need to be introduced by referendum.

    Yes, I am a traditionalist as to the role of constitutions. Though I do support New Zealand having a written constitution, one that would be widely accepted.

    • Exactly KCC! That’s why the Westminster system is superiro it has a flexibility so that change occurs at a steady pace. It evolves it is not set in stone which is the USA’s problem.

    • Exactly KCC! That’s why the Westminster system is superior it has a flexibility so that change occurs at a steady pace. It evolves it is not set in stone which is the USA’s problem.

    • Edit to add- a condition may get minor amendments but the whole idea is an enduring set of principles and rights to define a nation. These should not change with fashion.
      If we changed it every 5 minutes a constitution would mean nothing and protect no one.

  5. Things which require legislative change should require consensus, if that makes them slow to implement so be it. Things that need fast action, e.g. a pandemic, should be executive.

    I agree a modern constitution should be changeable, there should be a considered mechanism to do so periodically or even continuously. But there needs to be a high bar to change, at least to core parts, ideally backed by consensus among citizens.

    Perhaps parliment needs a sort of governing board. Citizens directly elect members to the board, and the board oversees constitutional issues and the structure of parliament/government. Perhaps the board could provide confidence and supply for minority governments, preventing deadlock and extremism – though I’d prefer to see that limited to executive matters and not legislative, allowing minority govt to pass legislation without consensus would be highly problematic.

  6. Constitutions. Conventions. Traditions. Nothing should change. EVER!
    Not even when the facts, or population demographics, or climate or anything else changes!
    NO ….. not EVER!

    Ekshully, I’m quite happy with an ‘activist’ judiciary – until such time as we get an upper house and a proper written challengeable constitution. At least it causes sleepy hobbits and the engaged to think and have a discussion. Ooops – I mean “to have a conversation” in this space

  7. Let have a crack at been governed by referendum. Let’s do this for a term. Take it for a spin because it couldn’t be any worse than the crap choices of political parties that we have now. Let the people have more direct influence on policy, rules, law and governance.
    Neither of the two main political parties gives two fucks about all kiwis. They’re just embedded in political tribalism and will cannibalise all that is not of there liking. Fuck’m I say.

    With LINOs recent RM polling of 25.5%. That in itself is an endorsement for Governance by referendum because what the opposition is offering is no different to what they’ve always pitched since Muldoon!

  8. Tane I like your idea. But if parties were honest with their manifestos before elections we would know what we are voting for. Perhaps the referendums could happen during the term so if anything controversial comes up we can vote bindingly on it.
    To commenters, I reply I would be happy to have any tertiary qualification even a law degree but sadly, boo hoo, I did not make it to university. One of my regrets. Some of us just have to battle on without a degree but still can use our critical thinking skills. Speaking of which I seriously doubt they still teach at uni.

  9. Well I think that a Constitution can, by legal definition, deliver any number of things including Stephen Minto’s suggestions. It is a set of rules, agreed upon by lawmakers, outlining the manner in which a country is to be governed.

    New Zealand does not have a written Constitution as such but rather a myriad of different laws and regulations which have been passed over the decades, and in many cases amended as time has gone on.

    Is it time for us to have a written Constitution? Of course it is!

    • Interesting part of your comment Daniel L. – … a myriad of different laws and regulations which have been passed over the decades, and in many cases amended as time has gone on. That is an indication of what we need from a written Constitution – the ability to amend it but then of course we also need citizen agreement and I have noticed on here people talking about 60% to 75% majorities. I think in between 65 – 70% myself.

      But when you think of how obviously our lives have changed since 1984 and how invasive into our ways and practices the electronic media and particularly IT is, then it requires us to be able to make measured, thoughtful changes. Wouldn’t it have been good if we could have taken Roger and his mates and rogered the lot of them! The Storming of the Bas…ds
      would have been effective not like the time we wasted on protest marches attempting to change the slide-show.

      • Thank you for your reply. I agree with you. 65 – 70 percent is an appropriate majority in my opinion as well

  10. Just thinking when checking out Dame Anne Salmond’s book The Trial of the Cannibal Dog:
    Captain Cook in the South Seas and seeing at the end her other books delving into Pakeha and Maori interactions, this could very well be the time to soak up all her findings and learn something to promote new thinking. All the time wondering if this new extreme Labour iniitiiaitive has been subject to enough knowing ‘eyes’ and thoughtful brains, going forward.

    1 Two Worlds: First Meetings Between Maori and Europeans, 1642-1772 by Anne Salmond
    This book is a provocative synthesis of two previously separate views of the dramatic, action-packed first meetings of Maori and Europeans in New Zealand. What were those first meetings? From one contemporary perspective – that of the tribal Maori of the seventeenth and eighteenth centuries – the first encounters with European explorers such as Tasman and Cook were, in Sal …more |

    Anne Salmond’s extraordinary Between Worlds begins with the arrival of Cook’s second expedition in 1773 and takes the story through to 1815, with the establishment of the first Br …more

    An epic, award-winning account of Pakeha-Maori relations immediately following Captain Cook’s voyages to New Zealand.
    Vivid, convincing and utterly memorable.’
    —Michael King, North & South

    Then, also by Penguin these two from Michael King RIP would also be relevant:
    In 2004 his book, The Penguin History of New Zealand, was overwhelmingly voted the readers’ choice award winner. and two books payng attention to both peoples –
    Being Maori – John Rangihau (1981) and Being Pakeha Now: reflections and recollections of a white native 1999

    And to add Maori perspective is Dr Ranginui Walker RIP – with his history of New Zealand Maori (revised).
    Ka Whawhai Tonu Matou / Struggle Without End (1990) Second Edition (2004)

    James Belich has also had published a two-volume work from first settlement to the present
    Making Peoples and Paradise Reforged 1996, now Penguin 2007
    A new paperback reprint of this best-selling and ground-breaking history. When first published in 1996 Making Peoples was hailed as redefining New Zealand history. It was undoubtedly the most important work of New Zealand history since Keith Sinclair’s classic A History of New Zealand.Making Peoples covers the period from first settlement to the end of the nineteenth century. Part one covers Polynesian background, Maori settlement and pre-contact history. Part two looks at Maori-European relations to 1900. Part three discusses Pakeha colonisation and settlement. James Belich’s Making Peoples is a major work which… challenges traditional views and debunks many myths, while also recognising the value of myths as historical forces. Many of its assertions are new and controversial.

  11. RE “we live in a democracy”

    Any alleged expert who talks about “we live in a democracy” AS IF a real democracy ACTUALLY EXISTS ANYWHERE IN THE WORLD (or has existed at any time) is evidently living mindlessly and blindly in the propaganda world fed to them since a kid and/or is part of the (unconscious, ignorant, naive, willful) crowd who disseminates this total lie — see “The 2 Married Pink Elephants In The Historical Room” …

    “All experts serve the state and the media and only in that way do they achieve their status. Every expert follows his master, for all former possibilities for independence have been gradually reduced to nil by present society’s mode of organization. The most useful expert, of course, is the one who can lie. With their different motives, those who need experts are falsifiers and fools. Whenever individuals lose the capacity to see things for themselves, the expert is there to offer an absolute reassurance.” —Guy Debord

    Isn’t it about time for anyone to wake up to the ULTIMATE DEPTH of the human rabbit hole — rather than remain blissfully willfully ignorant in a fantasy land and play victim like a little child?

    “Separate what you know from what you THINK you know.” — Unknown

    • It is unfortunate (i.e. there is small fortune and profit in it) that the word ‘democracy’ – for people-centred real government – has entered the realm of Orwell’s and Huxley’s thoughts and works.
      What is the difference between Huxley and Orwell?
      Huxley feared those who would give us so much that we would be reduced to passivity and egoism. Orwell feared that the truth would be concealed from us. Huxley feared the truth would be drowned in a sea of irrelevance. Orwell feared we would become a captive culture.7/02/2017
      QUOTABLE: We’re Living in Aldous Huxley’s Nightmare, Not Orwell’s
      William Holland 2010
      Both Orwell (real name Eric Blair) and Huxley left a substantial body of work that bore out the conviction that modern man was incapable of coping, resolving the demands of his time.

      Other writers, less artistic yet still formidable in understanding both the soft and hard tyranny that became secular humanism reigning the 20th century, tackled similar political ground, yet unafraid to acknowledge their theological debt in such an undertaking: James Joyce, Samuel Beckett, Fyodor Dostoevsky, Vaclav Havel, Alexander Solzhenitsyn, Andre Malraux, Francios Mauriac and Raymond Aron come to mind.

      All tackled the issues that the Church herself was born to ignite and resolve, yet was late in doing so.

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