Would a codified constitution reduce accountability?

Adopting a written constitution could move New Zealand from ‘a very healthy culture of constitutional accountability’ towards ‘an austere mindset of bare compliance’, writes Dr Ed Willis.

New Zealand currently has an unwritten constitution. Should it move to adopt a written one? I think there are two broad reasons to remain sceptical about arguments that New Zealand should adopt a written constitution. The first reason is that such a change would make no difference. The second reason is that it would. Let me explain what I mean.

Written constitutions and unwritten constitutions tend to have the same broad goals, and this means that moving to adopt a written constitution is unlikely to make much difference when it comes to abstract outcomes. Democracy,  the rule of law,  human rights,  the Treaty of Waitangi – all the ideals and values that we uphold and respect as ‘constitutional’ – are already part of our unwritten constitutional tradition.

This is an important point, because the argument for reform is usually put forward in terms of an improvement in constitutional outcomes. That argument conveniently ignores the fact that continuous improvement in constitutional outcomes over time is part of any serious constitutional project. It doesn’t matter if the target system is ‘written’ or ‘unwritten’.  The shortcomings identified in the current system by proponents of reform – both real and theoretical – are, usually, fair dinkum criticism of areas where we can do better. But in the context of a system that is flexible enough to work continuously towards addressing these problems from their root to their symptoms, they don’t by themselves provide a meaningful case in support of wholesale reform.

To really make that case in a compelling way,  proponents of reform would need to put forward a plausible claim that there would be a widespread, significant improvement in constitutional outcomes – some kind of rising tide that would lift all boats along with it. A step change in the benefits derived from the constitutional system, if you will, so that we are all just better at recognising and protecting freedom of speech, due process, or democratic mandate.

So far, the case for reform has not been put in those terms. Instead, the argument comes with caveats about what reform can really be expected to achieve. In practice, other factors may play a role and the sought-after benefits may be quite limited in scope. Adding this type of caveat is both truthful and prudent, but also telling. There is no guarantee that a different approach will fix the sorts of problems we face any better than incremental constitutional development.

So, in an important sense, moving to adopt a written constitution would make no real difference. Written constitutions, when they work well, aim to protect a well understood set of constitutional values but fail at least some of the time to do so. Our unwritten constitution, which we already know works well, also aims to protect that same well understood set of constitutional values but fails at least some of the time. In both cases we need to remain vigilant and work hard to ensure those failures are minimised, and when they occur we can fix them.

But I think there is at least one sense in which a written constitution will make a real difference. It will change the way we think about constitutional government. There are inherent differences between an abstract unwritten constitution and an abstraction in the form of a written constitution, and these differences cannot help but shape the stories we construct about the nature of government power and its limits. I am not sure that this kind of change would be to New Zealand’s benefit.

If this sounds esoteric, let me pause for a moment to explain why the stories we tell ourselves about government power are so important.  Those stories form a shared narrative about what is constitutionally legitimate in New Zealand and what is not. This shared narrative in turn sets the parameters for the acceptable ways to justify (or, conversely, challenge) the decisions and actions of government. My concern is that a move to adopt a written constitution for New Zealand may move us away from what I consider to be a very healthy culture of constitutional accountability and towards a more austere mind set of bare compliance.

It is easier to explain this shift in thinking by starting with consideration of a written constitution. A constitution that proclaims to have written down definitively all of the important rules about government tends to promote a very legalistic way of thinking. By this, I do not mean that it forces New Zealand to adopt a form of judicial supremacy of the kind experienced in the United States. I simply mean that compliance with the constitution is treated as a technical ‘tick the box’ exercise. A written constitutional document can therefore become a black-and-white standard against which government decisions and actions can be assessed. While this may promote ‘accessibility’ of ‘the Constitution’ at the most superficial level, it leaves significant room for government expediency. Unless the written constitution prohibits certain decisions or actions in clear and express terms, the government has room to argue (quite plausibly) that is it not prohibited from doing so. Its decisions and actions are, by definition, constitutionally valid.

This is a very narrow, austere vision of constitutional legitimacy. The unwritten constitution that we currently have demands a more exacting standard of accountability. Because constitutional standards are not thought of in definitive terms, government action is never able to be completely free from meaningful constitutional scrutiny. What standard is the government held to in this case? Well, we know that it involves shared values based on democracy, the rule of law, human rights and Treaty values, but we can’t be sure of the detail of that accountability standard until the detail of the government proposal is also shared. That approach might be described as “ambiguous” or “uncertain” or even “shifting the goal posts” by some, but interpreted generously it can also be understood as a standard that adapts exactly to the needs of the specific issues it is faced with at any given time. Faced with such a standard, the activities of government can never be undertaken in reliance on a narrative of constitutional compliance. The government must actually be accountable for its actions.

An unwritten constitution forces us – all of us – to think about the valid arguments that justify or challenge government action every time the government acts. It forces the government to do that thinking too. A written constitution pretends that this kind of hard work has already been done for us: that a definitive answer has already been determined. The reality is that it never has, and the more we are required to work towards good constitutional outcomes, the more accessible and effective our constitution will be.

The views expressed in this blog are entirely the author’s own.

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