Wednesday, October 7, 2020

Barend Vlaardingerbroek: An open challenge to the New Conservative party regarding its stance on constitutional law

From the New Conservative website:

New Zealand’s Parliament has the power to make any legislation governing our country…

This has given rise to laws that breach individual or community rights without any recourse to New Zealanders other than repeal by Parliament, as the New Zealand Courts have already ruled that Parliament is supreme.

The Magna Carta and the Bill of Rights 1688 enshrine individual and community rights and are New Zealand legislation that is routinely ignored by our Parliament.

New Conservative will introduce and pass a Bill entitled the “Legislation and Regulation Standards Act” that: …

  • Acknowledges that two documents, the Magna Carta and the Bill of Rights 1688 are fundamental declarations that form the basis of New Zealand law (“Declarations”).

  • Any New Zealand citizen can make an application to the Supreme Court of New Zealand to review any New Zealand legislation or regulation.

  • The Supreme Court must then review the relevant legislation or regulation to determine if the legislation or regulation is in conflict with the Declarations.

  • If the legislation or regulation is found by the Supreme Court to be in conflict with any of the Declarations, the Supreme Court must rule that such legislation or regulation is null and void.

We have a problem here. On the one hand, the party advocates the English system of governance whereunder Parliament is at the top of the tree as per the Bill of Rights 1689. On the other hand, they want a European system of governance whereunder citizens can challenge primary legislation in a constitutional court.

These two policies are mutually exclusive. The doctrine of the supremacy of Parliament excludes any possibility of a challenge to primary legislation. Even the monarch can’t do that. So proposing a constitutional court above Parliament is a negation of the constitutional model that they promote.

The New Conservative party’s stance on constitutional matters is inherently self-contradictory. It furthermore relies on a constitution made up of two documents , one mediaeval and mostly abandoned 200 years ago, and one the principal function of which was to restrict the powers of the monarchy and declare Parliament supreme. A constitutional court would be hamstrung.

I invite a response from the New Conservatives.

Barend Vlaardingerbroek BA, BSc, BEdSt, PGDipLaws, MAppSc, PhD is an associate professor of education at the American University of Beirut and is a regular commentator on social and political issues. Feedback welcome at

1 comment:

Barend Vlaardingerbroek said...

What, still no comments from anyone?
Surely the issue of constitutional law is of interest to citizens of one of the very few countries in the world that doesn't have a 'written Constitution'?
I don't want this challenge to be seen as an 'attack' of any sort on the New Conservatives. I share many of their concerns. If they turn out to be catalysts for a wide-ranging discussion of NZ constitutional arrangements, all the better.
It's a conversation that has to be had. Soon.