Constitutional law: it is all the rage

Parliament’s debating chamber. PHOTO: GETTY IMAGES
Parliament’s debating chamber. PHOTO: GETTY IMAGES
Who would have thought we could get the people of New Zealand to spend hours talking about constitutional issues in 2024?

But that is precisely what has happened.

Much of the talk has come around the Treaty Principles Bill.

We have had the media, and the Labour Party in particular, berating the Prime Minister for not breaching the coalition agreement and refusing to allow the treaty Bill to be brought to Parliament for its first reading.

It was understandable the Labour Party would be suggesting a breach of the agreement, since you would expect them to understand that not following the agreement would likely mean the breakdown of the government.

It was less understandable that the media seemed to have little understanding of where a breach would lead, as if such an agreement was just a suggestion rather than a deal which took weeks to reach and bound all three parties to various promises.

Then people became outraged by the idea that a Bill such as this would be sent off to a select committee, which was also part of the plan from the start.

The outrage seemed to come from the thought that since the Prime Minister said he would not continue to support it, it was a waste of time to allow people to submit their views and be heard.

Many people were at the same time chastising the Prime Minister for what they considered were broken promises. This suggests it is at least in the contemplation of people that the Prime Minister could change his mind on this as well, especially if enough feedback from the select committee process supports a version of the Bill.

After all, the select committee process makes a significant contribution to our democracy. It is one of the few ways we can really be heard between elections.

Then we had various people, including some Kings Counsel, suggesting this Bill may not be something our Parliament could actually properly pass.

We do have times where there has to be more than the usual 50% of our Parliament who must pass a Bill for it to become law.

Such times are when constitutional changes are being proposed, and this might be one of them.

However it is astounding that such senior lawyers in New Zealand could suggest there are some laws which are prohibited for a sovereign state such as ours to pass.

In this situation, what is even more surprising is the meaning of the Treaty has not been established by any parliament so far.

It has been discussed over the years by various courts and by the Waitangi Tribunal. (The Waitangi Tribunal is not actually a court, and has as its members people who do not even need to be lawyers).

The idea that the courts and Waitangi Tribunal could have any views on the Treaty which binds the government of New Zealand forever brings a whole new perspective to discussions about constitutional matters and goes to the heart of the very idea of the sovereignty of Parliament.

We have also had discussions around what it means for Te Pāti Māori to assert Parliament is not the sovereign governing body in New Zealand while serving as members of Parliament and making the oath that all members make about following the laws of New Zealand.

And then there has been the issues around the Manurewa marae.

Takutai Tarsh Kemp was the chief executive of the Manurewa marae until becoming a member of Parliament at the most recent election.

Concerns have been expressed about irregularities alleged to have taken place at the marae around the local body elections in 2022 and around the use of the marae during the census.

The suggestions made by some staff were that information given around the census was used to form a database to contact people for electioneering purposes.

Allegations of irregularities are strenuously denied by the Manurewa marae and Te Pāti Māori.

However the chief electoral commissioner acknowledges they got it wrong in allowing the marae to be used as a voting base in the election.

To run a credible representative democracy requires decent statistics around who the voters are, and that there is both the reality and the perception of fair elections.

The idea of muddling up census forms, having a voting booth on a marae headed by a candidate, picking up personal details from people not given out for that purpose would (if it were found to be substantiated) be heading down a dangerous Third World election system.

And finally we heard that a district court judge, Judge Emma Aitken, gatecrashed a New Zealand First party and abused the deputy prime minister, calling him a liar.

Our democracy protects judges from being fired by politicians so the court system can be free of political interference. This system comes under risk when a judge behaves in such a manner.

The apology which followed from the Chief Judge Heemi Taumaunu did not sort this serious breach of judicial standards.

So what a busy year it has been with constitutional conundrums.

For some, the idea that we should have vigorous discussions around such things is uncomfortable and possibly divisive.

However a vibrant democracy should not be afraid to talk about issues. It should not be afraid to hold the institutions and procedures which underpin democratic systems to the highest standard.

It encourages its citizens to take an active part in thinking about what it means to be a citizen, and the role each of us has in expressing our views, hopefully well informed, as to how our country should be governed.

If it has given us nothing else, discussions about how we all belong in New Zealand and how to defend our democracy are making us all more invested in our role as people of New Zealand.

hcalvert@xtra.co.nz

• Hilary Calvert is a former Otago regional councillor, MP and Dunedin city councillor.