Sunday, September 25, 2016

Stephen Franks: Sir Geoffrey’s draft constitution

I have yet to read Andrew Butler’s and Sir Geoffrey Palmer’s book.

From what I have seen of their draft constitution there are admirable elements, some badly needed, such as the proposed protection of property rights. Section 104 is well drafted, as one might expect from the intelligence and experience of those authors.

I expect the book to make a strong case for the benefits of a good constitution. I could even prefer for New Zealand to have such safeguards, despite the risks that it would increase the power and arrogance of our lawyer class.

But there are three compelling reasons to oppose this attempt to propel New Zealanders into a constitutional debate.

The first is simple – there is no guarantee that we would get a good constitution. It is highly likely we would end up with deliberately uncertain words designed to grant rewrite/trumping powers to the elite groups that already show they despise ordinary people, and democracy.

Second – even a good constitution will only be as safe as the quality and integrity of the watchdogs given the enormous power to interpret and enforce it. Our judiciary have shown repeatedly that they cannot be trusted with such powers. See for example the sophistry with which they have contrived to nullify the clear Parliamentary intention of the three strikes law.
Thirdly, the process of adopting a constitution can be highly damaging. In the absence of forces compelling us to remember our shared interests and to put them ahead of all the things that could divide us, it could end with a generation poisoned and divided into the irreconcilable ‘tribes’ we see emerging elsewhere in the Anglo political world.

I will revert in future posts to dangers in particular suggestions in the Palmer/Butler draft. The proposed bald proposition for founding (supreme?) authority to the Treaty of Waitangi has already attracted plenty of attention. It seems foolish to entrench it without anything to remedy the constitutional and practical problems  stacking up from abuse of the invented so-called principles.

But I focus here on the third objection.

The process of gaining a written constitution, if conducted without the unifying exhaustion of a just concluded civil war, or a major external threat, could distract us into division and dispute for which there is no end, and no solution.

The attempts to get a constitution for the EU ended with a vast document including the wish-list promises and guarantees of a host of lobbyists and single issue political fanatics. They all saw the chance to get their cause entrenched beyond normal democratic challenge, without having to first win the hearts and minds of a majority, let alone the overwhelming majority needed for true foundation value status.

The document was so unweildy and controversial it became an instrument of division. It was among the reasons why voters in founder members of the EU started voting against ever-closer union. That document played an important part in the respectability of some of the parties and politicians now wanting to break up the EU.

Deciding on what is in, and what is out of a constitution is a fight to ensure that courts and lawyers make very difficult and controversial decisions, instead of elected representatives. Once a rule is in the constitution, many of the policy preferences it embodies become effectively non-debateable. So, for example socialists have incorporated “rights” to adequate housing, leaving it up to courts (not elections and democratic leaders) to decide who pays, where, what contribution should be expected of the beneficiary, how they qualify, what kind of housing, and what behaviour (if any) might disqualify.

Constitutions should be the fundamental rules agreed when the constituents are closely focused on the values they share and the purposes that unite them. Nothing more This applies whether it is a club, company, or country.

So it is breath-taking naivete to steer a country (or a company or club) into trying to decide such matters midflight, without a compelling uniting objective, or external threat or pressure to compromise and agree. Every group senses the chance to get trump status for their favourite rule or privilege, getting it safely beyond normal democratic question, challenge and evolution.

A society cursed with a constitutional debate becomes consumed by the issues that divide them. It will divide over the potentially permanent consequences of a loss on an issue to the majority or ruling clique of the time.

That is corrosive of the essential mutuality ethic of democracy – that each of us accepts adverse rulings of our elected rulers for the time being, in support of a greater rule. That greater rule is agreement in advance that if some can persuade a majority of our fellow citizens to replace the current subordinate rules and rulers, the latter and their supporters will respect that decision and mechanism, no matter how passionately they feel it is wrong. They do so in expectation that the new winners will reciprocally accept replacement when they too are displaced under the same due procedure.

The procedural rules of the game are the proper primary subject of a constitution. The Butler/Palmer draft highlights the dangers of a process that as well sets out to entrench a selected sample of the policy prejudices and preferences of a current elite. Their draft makes sure the process could never be safely confined.

Stephen Franks is a principal of Wellington law firm Franks & Ogilvie and a former MP. He blogs at


paul scott said...

Constitution. Another layer of power and more treaty treason to democracy.
No. No. No, and No.

Anonymous said...

Stephen, I think your reference to the aspect of increasing the power of the lawyerly sector deserves to be at the forefront rather than as an indirect aside. Palmer was the architect/draftsman of the RMA which promised to enable development provided the effects of the development were avoided, remedied or mitigated satisfactorily. We now have the RMA gravy train, where the hurdles start with the impenetrable regulatory authority planning documents, move on to administrative bureaucrats who think applicants are the enemy, often involve endless iwi consultation, and lastly the step in the process of either challenging or defending decisions, in hearings at Council and/or Environment Court, all of which are in the lawyerly domain and beyond the funding capacity of ordinary citizens. Palmer Constitution - no thanks!

Barry said...

I agree with Paul Scott and 2:28AM Anonymous.

Bruce said...

I agree entirely with Stephen. A pox onPalmer and his like.

Leigh said...

I am both disappointed and concerned that Stephen should believe that agreeing on a Constitution would be so divisive. If the people of England and King John could agree on a Magna carta, why should a constitution for us be so difficult? That said, the Treaty of Waitangi will certainly be the hurdle to overcome.

Jonathan said...

Whilst Sir Geoffrey Palmer is an honorable man, he is often naive. I well recall him saying that the Waitangi Tribunal process (which he helped initiate) would be over within two or three years.....and STILL it drags on....a gravy-train for lawyers!

K M Findlay said...

Royal Powers abolished. No thanks. One of the most important things about the Queen is the power that She denies to others. Without that politicians would have absolute power. We all trust elected politicians don’t we? Hands up all those who trust elected politicians. Wot? Nobody? Oh dear.

One Law for All said...

I would back/trust Stephens judgment on a constitution, if he thought it was ok, that would work for me ..