New Zealand’s unwritten constitution provides for flexibility and clear lines of democratic accountability, writes Steven Sutton
I come to this debate not with an abiding affection for the form of constitutional monarchy as it exists in our country, Aotearoa New Zealand, but rather a practical acknowledgement, grudging respect even, for the robustness of our constitutional form.
We have taken the majesty of monarchy, placed it on the bi-cultural compact that forms the foundation of the country, and then shaped a constitutional monarchy to the needs of a closely-knit independent nation. We may not have chosen the form of our constitution, and would not likely choose the current form if asked to design it today, but we took a non-bespoke constitution and fashioned it to our needs. What could be more New Zealand than that?
My belief in Aotearoa New Zealand’s constitutional status quo stems from two factors:
- first, the practical benefits from the form of constitutional monarchy; and
- second, the substantive achievements made possible by the flexibility of our country’s so-called unwritten constitution.
First, as to the form of constitutional monarchy, what with reference to nineteenth century Britain Walter Bagehot called the “dignified” part of the constitution, its inherent practical benefit in New Zealand is that the sovereign and her representative, the Governor-General, enjoy legal power, but no real political power.
The same is true of Australia, Canada, and the other thirteen countries with whom we share the same sovereign. While governmental power emanates from the sovereign, and the sovereign appoints the prime minister and all ministers, the legitimacy of the sovereign’s power rests entirely on a democratic mandate, that is MPs in the House of Representatives. While the constitutional form is nominally monarchical, the substance is entirely democratic, just as it should be.
But most importantly, the absence of real political power in the sovereign’s hands ensures that we know who holds power, we do not have different poles vying for legitimacy. Governmental power rests on a democratic decision renewed at each election, and aside from popular pressure or shifting parliamentary numbers, competing sources of power do not chip away at a government during its term of office.
Second, our unwritten constitution allows for substantive changes and has created the type of society we enjoy today, in a way that a more rigid constitution would not necessarily permit. New Zealand is lucky in this respect for two reasons.
In the first instance, governments can govern and implement their programme, having formed a parliamentary majority after an election. The ultimate check on excess rests in the fact that voters will have their say on a government’s performance just three years later. Consequently, our governments throughout history have been able to reform social, economic, environmental, and other policies without having to thread the substance of reforms tortuously through the narrow pinhead of archaic constitutional language, for fear that policies (often policies supported by the electorate) will be declared invalid.
Further, and just as importantly, Aotearoa New Zealand can innovate and add to what comprises our constitution to meet the needs of our dynamic society. Establishing Maori representation in Parliament, granting women the vote, abolishing the moribund Legislative Council, establishing an independent body to draw electoral boundaries, creating a right to see and a mechanism to request official information, nascent recognition of the Treaty of Waitangi in law, a mechanism for redressing historical wrongs in Crown-Maori relations, recognising the rights in the Bill of Rights Act, and introducing MMP: all are examples of additions to our constitutional rubric achieved simply by ordinary legislation. These sorts of important constitutional changes would likely have been much harder to achieve in the face of the wording of a single written constitution.
Under our so-called unwritten constitution, much is left to convention developed over time, but that is also true of similar countries with a single written constitutional document. Those searching for a declaration of the Prime Minister’s or the Cabinet’s roles in Australia’s or Canada’s constitutions will search in vain, just as those seeking the single authoritative statement under which the Supreme Court can invalidate legislation will read the United States’ constitution without joy. At best, a constitution written at one time can encapsulate the priorities and preferences of its authors, leaving changes to a sometimes arduous amendment mechanism, or unwritten conventions to patch over the cracks. It is, I contend, to our country’s credit that by sticking to a grouping of constitutional statutes and conventions that we are at least honest about the limitations of a single written document.
As a footnote, I want to add that I do not expect the constitutional status quo will last forever in our country. One day something will supplant constitutional monarchy. For my money, many of the ideas posited by Geoffrey Palmer and Andrew Butler in their draft constitution would work as substitutes for our existing arrangements when that day comes.
Steven Sutton practised law in Wellington at Russell McVeagh and in house at government departments, including two years as the legal and constitutional advisor at the Department of the Prime Minister and Cabinet. Nowadays he is learning Mandarin before starting work on New Zealand’s primary industries’ trade with China. Steven graduated in law and history from the University of Otago, and holds a masters degree in history from the University of Cambridge. The views expressed are entirely his own.