Steve Baron: New Zealand - Parliamentary or People Sovereignty?

In 1840 the British government signed the Treaty of Waitangi with indigenous Maori tribes which gave Britain sovereignty over New Zealand. In 1852 the New Zealand Constitution Act was passed to implement the British Westminster style of government, which is based on the doctrine of Parliamentary Sovereignty.

British constitutional theorist, Prof. Alfred Dicey said that Parliamentary Sovereignty was, “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”. Given that New Zealand does not have a codified (written) constitution, this gives the government of the day supreme power, making it unaccountable to voters apart from once every three years at an election.

The core of the doctrine of Parliamentary Sovereignty is that parliament can do anything it likes except bind its successor. The principal behind this doctrine would appear to be that a single sovereign authority will control power much better perhaps, than the system used in the United States of America—the home of the most famous and oldest constitution which was founded in 1787. There, a written constitution, overseen by the separation of powers, and an elected president, effectively reduces Parliamentary Sovereignty.

The 20th century has seen an explosion in the introduction of constitutions around the world. A constitution is a powerful way for society to influence government as it puts a check and balance on government powers, promotes accountability, and protects the rights of minorities and all citizens. A constitution also critically restricts what a government is able to do in terms of passing laws. There are two types of constitutions, a codified constitution which is a single document, and an uncodified constitution which may exist across a number of documents. New Zealand's system is an uncodified system. Further, constitutions may be flexible or rigid in terms of their potential for challenge and modification. Britain and New Zealand are examples of flexible constitutions and are relatively easily changed, most often by a simple majority in parliament. Parts of the New Zealand constitution such as Section 268 of the Electoral Act 1993 are entrenched and require a 75% majority in parliament or the majority in a referendum to be changed. However, this is rather misleading because a simple majority in parliament can remove the entrenchment, thus making it possible for a simple majority to then change it. For example, the New Zealand Bill of Rights Act 1990 can be changed with a simple majority in parliament. These are important considerations for a society. If a government can change the rules of the game with a simple majority, it leaves the political system open to abuse and at the whim of the controlling party in government.

While New Zealand governments have been fairly democratic on a number of important issues, such as having national referendums to change the electoral system, it has not been so democratic on others. A good example of how easy it is to change laws in New Zealand was the removal of the right of citizens to appeal to the Privy Council in London. This was what most would consider a major constitutional change that should be agreed to by voters in a referendum. However, the Clark Labour government did just this in 2003 with a majority vote in parliament. In 1951 Parliamentary Sovereignty was also strengthened when parliament (or perhaps more accurately, the Party or Cabinet in power) removed the second chamber (Upper House) with a simple majority vote, and parliament became unicameral. What was surprising is that this important decision for a constitutional change was not even put to the people in a referendum.

Although it might be argued that Parliamentary Sovereignty has been limited for many years now, parliament still wields immense power over people's lives. Perhaps more than it should? In a bye-gone era, society at large was mostly uneducated and illiterate and people looked up to their elected representatives, who were the learned and successful people in society. This is not the case today. The vast majority of educated and successful people in society do not enter parliament. Arguably, the standard of elected representatives has dropped and their records leave a lot to be desired. Given huge improvements in education and a far more informed society, it is no surprise there are now more calls for the Parliamentary Sovereignty that still exists, to be reduced. Simply electing politicians once every three years is no longer satisfactory, given so much water can pass under the political bridge during this period, and so much damage can be done. The trend and demand for more public sovereignty is growing worldwide and also in New Zealand.Cabinet Government still holds too much power and it must be reduced if real democracy is to prevail. In my opinion, New Zealanders put a huge amount of faith in a benevolent dictatorship with few real checks and balances. So long as this faith is respected there is no need for concern. If not, the outcome does not bear thinking about and one has to wonder why more precautions have not been put in place before the unthinkable happens. A codified constitution and the public's right to veto any government legislation may very well be the first steps in the right direction.