ICRP: BULLETIN 1 - Written, treaty-based constitution puts judges above MPs

A written constitution overrides parliamentary sovereignty and gives un-elected judges the final say on all the line-drawing choices related to abortion, same-sex marriage, how to deal with those claiming to be refugees, where tobacco companies can advertise, and myriad other such debatable, highly disputed issues, constitutional law expert James Allan has warned.

James Allan is the Garrick Professor of Law at the University of Queensland, who spent 11 years teaching constitutional law at the University of Otago. He was commenting on the Maori Party initiated constitutional review, part of which considers the role of the Treaty of Waitangi within New Zealand's constitutional arrangements.

“I think it would be a disaster for New Zealand to move to a written constitution of the sort almost certain to be offered. And I would run a mile from incorporating or entrenching the treaty into any such instrument, not least because overwhelmingly no one knows what it means when applied to any specific issue. So all you will be buying is the views of the top judges, instead of your own, the voters.  That’s not a trade I would ever make,” he wrote.

He described how constitutions are vulnerable to being “filled up” with new meanings by judges, and how they are increasingly regarded as a “living tree”, in that their “words stay the same, but their meaning can change over time”.

“The exact same thing can be said of the Maori Party’s push to have a written constitution that incorporates the Treaty of Waitangi”, he wrote. “The latter has little content in its few short paragraphs.  Talk of its ‘principles’ inherently involves a lot of ‘stuffing it full of latter day content that no one at the time imagined or intended’.” 

Professor Allen’s full article “A written constitution for NZ?” can be viewed HERE.

Professor Allen is a member of the Independent Constitutional Review Panel (ICRP), a diverse group of New Zealanders who share a common concern that an out-of-control Treaty industry threatens not just New Zealand's prosperity but its very survival as a nation. The ICRP supports the Declaration of Equality which:

1. Rejects any reference to the Treaty of Waitangi or its principles in any constitutional document.

2. Requires that such references be removed from all existing legislation.

3. Requires that race-based parliamentary seats be abolished.

4. Requires that race-based representation on local bodies be abolished.

5. Requires that the Waitangi Tribunal, which has outlived any usefulness it may have had, be abolished.

The ICRP Panel is chaired by Canterbury University law lecturer David Round and consists of Auckland University Associate Professor Elizabeth Rata, Massey University Emeritus Professor Martin Devlin, Queensland University Professor James Allan, New Zealand Centre for Political Research Associate Mike Butler, and NZCPR Founder and Director Dr Muriel Newman.

For more information please contact:

David RoundChairman Independent Constitutional Review Panel

ConstitutionalReview.org