What is a constitution?
By Julian Batchelor M.ED (Hons), B.Th, Dip T’chingThe constitution of a nation is the set of rules that govern how a government can exercise public power. A constitution identifies who or what institutions should exercise power and how they should do it. The government is the most powerful coercive force within a country, so the rules about how a government should exercise power are very important.
Function
In a democracy the purpose of a constitution is to to ensure that the government exercises its power as the people wish. It can be complicated to create, as people will disagree over how a government should exercise its power.
Written or unwritten?
In most countries the constitution is a written document. The USA, Australia, Canada, China, India and almost every other nation have a single written document.
A written constitution usually provides for the basic institutions that exercise public power, and how they do it. It also usually provides procedures for how the constitutional rules are enforced and how they may be changed.
Unlike most countries, New Zealand follows the UK in considering itself to have an ‘unwritten’ constitution.
New Zealand has had a succession of constitution acts, passed first by the UK Parliament in 1846 (but then suspended) and 1852, and then by the New Zealand Parliament in 1986. These acts have contained key provisions relating to the institutions and procedures of government.
The Constitution Act 1986 brought together key legal provisions regarding the institutions and procedures for the exercise of power that had previously been scattered in several places. It was organised in four main parts, dealing with:
• the sovereign – the king or queen and their representative in New Zealand, the governor-general
• the executive – government ministers
• the legislature – the House of Representatives which, together with the sovereign, is Parliament
• the judiciary – judges.
Judges are to put into practice what parliament has ruled. That is all. They were never to make the rules / laws, only to make sure what parliament enacted was honoured.
Canada, Australia and other former British colonies have also had constitution acts, initially passed by the UK Parliament, which have been referred to as ‘the constitution’ in those nations. But, since around 1860, New Zealand has not considered that it has a constitution. This is still the case today.
Some say that our constitution is unwritten.
Key institutions and rules governing the exercise of public power in Australia, Canada and the USA still consider their constitution to be in one written document. New Zealand does not have this ‘one written document’. Thus it does not have a constitution.
New Zealand’s constitutional history have led to a greater focus on the importance of constitutional conventions rather than written documents. New Zealand’s ability to amend the Constitution Act itself from 1857 lessened its apparent significance.
It is significant that New Zealand’s Constitution Act 1986 is not supreme law: the New Zealand judiciary does not have the role or power to strike down other laws as inconsistent with the act.
New Zealand considers that its basic institutions and procedures governing the exercise of public power are set out in written and unwritten practices. As I have said, we do not have one single written ‘constitution’.
The laws and rules governing the power of government are located in a variety of laws, court judgments, other instruments of government. Different scholars and commentators identify and emphasise different elements. But there is general consensus that the rules guiding parliament include:
• statutes passed in the UK before New Zealand was independent, such as the Magna Carta, which was confirmed as statute law in 1297, the Bill of Rights Act 1688 and the New Zealand Constitution Act 1852
• statutes passed by the New Zealand Parliament, such as the Constitution Act 1986 and the Electoral Act 1993
• significant court judgments, such as Fitzgerald v Muldoon (1976), which declared that the prime minister could not suspend the law
• elements of other instruments of New Zealand branches of government, such as the letters patent (legal documents issued by heads of states or governments which confer rights and privileges) and the Cabinet manual
Maori radicals / re-tribalists consider the Treaty of Waitangi to be part of New Zealand’s constitutional arrangements, but in reality it’s not at all. They want to make it New Zealand’s constitution. We should resist this at all costs. If the Treaty was made New Zealands constitution, Maori radicals could and would rule the nation, especially since the principles of the Treaty can be defined at will by the Waitangi Tribunal, and the Tribunal alone determines what the Treaty means and says.
For these reasons, the Tribunal must be abolished.