Tuesday, September 18, 2012

Mike Butler: Constitution 101 questions to ponder

Our Bill of Rights Act, the number of MPs, the term of parliament, election date, the number and size of electorates, electoral integrity legislation, and whether we should have a written constitution are all up for discussion and the Constitutional Advisory Panel released a booklet on September 11 to introduce the issues.

The booklet, titled “New Zealand’s Constitution – the conversation so far”, is an easy-to-read introduction to our constitutional make-up and includes the sort of information that would be helpful in a compulsory civics class at high school.

Bill of rights issues
The Bill of Rights Act 1990 claims to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights. Section 7 requires the Attorney-General to bring to the attention of the House any provision in a bill that appears to be inconsistent with any of the rights and freedoms contained in the Act.

The Act stemmed from a White Paper entitled "A Bill of Rights for New Zealand", tabled in parliament in 1985 by Justice Minister Geoffrey Palmer, which proposed a number of controversial features which sparked widespread debate:

1. The Bill of Rights was to become entrenched law so that it could not be amended or repealed without a 75 percent majority vote in parliament or a simple majority in a public referendum;

2. The Bill of Rights was to be supreme law, thereby eroding the doctrine of parliamentary sovereignty;

3. The Treaty of Waitangi was to be wholly incorporated within the Bill of Rights thus elevating the treaty's status to that of supreme law.

4. The Judiciary would have the power to invalidate any Act of Parliament, common law rule or official action that was contrary to the Bill of Rights.

The Justice and Law Reform Select Committee recommended that New Zealand was "not yet ready" for a Bill of Rights in the form proposed, and recommended that the Bill of Rights be introduced as an ordinary statute, which would not have the status of superior or entrenched law.

Questions raised are whether the Act provide appropriate mechanisms to protect rights, and if not, what could be done, and whether the Act should include additional rights, and if so which rights?

Should this Act be entrenched to become supreme law? Support from three quarters of the members of Parliament or a referendum of voters would be required. The answer remains no. Should the Bill of Rights Act be broadened to include additional rights, such as social rights, cultural rights or environmental rights? Again, no, although there is a case to include property rights. Should the Bill of Rights Act be entrenched? No.

Should the Bill of Rights Act be superior law so other laws can not be inconsistent with it, unless parliament explicitly resolves otherwise? This is problematic because the Act affirms New Zealand's commitment to the International Covenant on Civil and Political Rights, which imports a whole host of international concerns that have been used to support separatism.

Number of MPs
Margaret Robinson's 1999 Citizens’ Initiated Referendum showed that 81.5 percent of New Zealanders wanted the number of MPs reduced to 99. A comparison with other OECD countries in terms of people per representative shows that the current number of 120 MPs resembles the level of representation in the United States is higher than the United Kingdom, but lower than Australia.

Dividing our population of 4.43-million by 120 results in a figure of 36,908 people.
In Australia, if you consider its senate, House of Representatives, and elected state representatives, the figure is 27,665. In the United States, each politician (state, lower house, and senate) represents 38,368. The United Kingdom has fewer elected representatives, or so it would seem after dividing the total population by the number of Lords and MPs, which gives a per-representative figure of 43,293.

However, there is no indication that a heavy workload requires more MPs. Voting in parliament requires little thought since MPs vote along party lines on all issues except conscience votes. The requirement to sit on select committees may be more time-consuming, but despite the argument that select committees function as a check on executive power, they have become another area where voting and recommendations are predetermined and are along party lines.

MPs seem to have largely stopped taking constituent concerns to parliament and are more concerned with taking party concerns to constituents. The appearance of list MPs in the changeover to MMP voting, who have no constituents and exist to serve party bosses, worsened this top-down representation. The only other area of public duty is attending conference dinners or saying a few words at opening events.

The booklet noted that the select committee examining the Electoral (Reduction in Number of Members of Parliament) Amendment Bill 2006, which proposed reducing the size of the House to 100 MPs by reducing the number of list seats, with no change to the number of general electorate seats or Maori seats, considered that the benefits of reduction would be outweighed by the adverse effects on parliament’s proportionality and diversity, and therefore its effectiveness.

The term of parliament
Regarding the length of terms of parliament, one view is that we should stick to three- year terms to contain the damage done by a rogue government. Another view is that a four-year term would make it more difficult for a government to smile and wave for their entire first term, making their level of incompetence apparent sooner, thereby enabling voters to change the government at the end of the first term. The booklet noted a referendum in 1990 that had an 85.2 percent turnout showed that 69.3 percent favoured a three-year term.

Election date
Should there be a fixed end date? Currently, the prime minister can announce an election date to his or her own advantage. A fixed date, or a semi-fixed date, such as the last Saturday in November, would level the playing field, although there would need to be some means of calling an election earlier if a parliamentary deadlock results in no working government.

Number and size of electorates
The somewhat arcane process for deciding the number and size of electorates is based on the South Island always having 16 electorates. After each five-yearly census, the Representation Commission divides the number of people living in the South Island by 16, to get the “population quota.” the Commission then divides the Maori electoral population and North Island electoral population by the South Island population quota. This calculation results in the number of North Island and Maori electorates.

The question is whether this method is still appropriate considering a big difference between the sizes of small and large electorates, and considering electorate boundaries move independent of community groupings.

New Zealand currently has 70 electorates in total, with 63 general electorates and seven Maori electorates. The commission tries to keep the population size of each electorate roughly the same. I would suggest fixing electorates based on regional, city, or suburban boundaries first, then adjusting the number of representatives per area to retain a balanced voter-per-representative ratio while allowing for more representatives for areas of higher population.

Electoral integrity legislation
After the first MMP election in 1996, a number of list and electorate MPs left their parties, but remained in parliament, a phenomenon known colloquially as waka-jumping or party-hopping. To cope with that, the Electoral (Integrity) Amendment Act 2001 enabled the Speaker to declare vacant the seat of an MP who had notified the Speaker that he or she ceased to be a member of the political party that he or she stood for, or if a party leader gave written notice that he or she reasonably believed that the member had acted in a manner that distorted the proportionality of representation in Parliament.

That Act expired in 2005, when the Electoral (Integrity) Amendment Bill 2005 proposed to reinstate it, but was not passed. The question now is whether we need such legislation, or should voters decide that an MP should leave parliament? Should such provisions apply only to list MPs?

Written constitution
New Zealand is one of only three countries in the world without a formal written document known as a Constitution. Would New Zealand benefit from one formal written document collating the rules and practices that make up our constitutional arrangements. Written constitutions are generally supreme law, which means all other laws and state actions must comply with the rules in the constitution. Written constitutions are generally enforceable by the Judiciary, and some establish constitutional courts with the final say on interpretation. Written constitutions are usually entrenched.

The questions are whether there is there any need for change, what are the implications of a written constitution, whether our constitution should be entrenched, and how would we deal with the ‘hard’ issues?

A move to a written constitution would be a significant change and may inspire people to think about: The Treaty of Waitangi and the future position of Māori, whether it should be supreme law, the effect on Parliament’s full power to make laws, the role of the Judiciary, whether we should reintroduce a second legislative chamber, the role of the head of state, whether the head of state continue to be a hereditary monarch, or should New Zealand become a republic with a president as head of state, whether a president should be elected or appointed, what powers should that President hold, and how would the constitution reflect the relationship between central and local government?

Some of the issues the Constitutional Advisory Panel is looking at are:

Should the size of Parliament be changed?
Should the term of Parliament be increased?
Should the election be a fixed or semi-fixed date?
How many electorates should we have?
Should the South Island requirement of 16 electorates remain?
Should the population tolerance for electorates remain 5% or increase to 10%?
Should we have electoral integrity or anti-party-hopping legislation?
Should the Bill of Rights Act be supreme law so other laws can not be inconsistent with it?
Should the Bill of Rights Act be superior law so other laws can not be inconsistent with it, unless Parliament explicitly resolves otherwise (a notwithstanding clause)
Should the Bill of Rights Act be broadened to include additional rights, such as property rights, social rights, cultural rights or environmental rights?
Should the Bill of Rights Act be entrenched?
Should we have a written constitution, with the judiciary able to strike down laws inconsistent with it?
Should we reintroduce a second legislative chamber or upper house?
Should we become a republic?

Sources
New Zealand’s Constitution – the conversation so far
http://www2.justice.govt.nz/cap-interim/documents/CAP%20-%20summary%20info%20booklet.doc

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