Four Months Work: The US Constitution was the work of four frenetic months and some of the sharpest minds the world has ever produced. What were the chances that a group of fifty New Zealand university students could do something similar in just two days?
A big ask, you might object. Surely, given the time-frame, disappointment was inevitable? Maybe. But these young people were not without some pretty impressive intellectual and technical support. Helping them out was Professor Philip Joseph, a significant contributor to the academic literature on New Zealand’s constitutional arrangements. Also present was the doyenne of Treaty historians, Dame Claudia Orange. Mr Dean Knight was there, too, along with a team of facilitators from the VUW Law School. The students weren’t acting alone.
So, what did they give us, these fifty constitutional craftspersons? Sadly, the document that emerged from two days of frenetic work-shopping was, conceptually, a dog’s breakfast. The final draft possessed scant evidence of either legal logic, historical understanding or literary skill. Strictly-speaking, it wasn’t even a constitution. If the generally accepted meaning of the term is a document enshrining the supreme law of a nation; a template of rights and responsibilities against which all other laws and proposed laws may be tested, and if found wanting, struck down or set aside, then their draft constitution was anything but.
Long on bicultural psycho-babble, but woefully short on the clarity of vision and elegance of design that constitutional architects have, historically, sought to provide, the draft contained little more than a confused reiteration of the political and electoral conventions New Zealanders have spent the best part of 170 years defining and refining.
The central, and by far the most important of these conventions, is the convention which declares Parliament supreme: the convention which prevents any other locus of power within the state – most particularly the Judiciary – from over-ruling the legislative will of the people’s elected representatives “in Parliament assembled”. It is this, the convention of parliamentary supremacy, which reduces any exercise in constitution-drafting to little more than an enumeration of legal and political good intentions.
It was the fifty young students’ failure to boldly and proudly affirm this, New Zealand’s existing constitution, which most disappointed me. How I wish they had looked around the Legislative Council Chamber, analysed the political and economic forces responsible for bringing them together, and then brazenly rejected the carefully constructed agenda dictating their every move.
If only they had declined to be pawns in the game being played by the Constitutional Advisory Panel – that gangrel offspring of the National and Maori Party’s 2008 Confidence & Supply Agreement. If only they had refused to play the role of lab rats in the Panel’s quixotic quest to incorporate the Treaty of Waitangi in a new, bi-cultural, binding (and inevitably judicially-defined) New Zealand constitution.
Because that’s what real constitutional architects do: they shake off the constraints imposed by those who set the political agenda – and then proceed to write their own.
In fairness, however, I should congratulate the fifty young university students for demonstrating to those who would play fast and loose with our democratic traditions and majoritarian instincts, just how difficult – if not impossible – it will be to impose anything remotely resembling a judicially-defined, bi-cultural constitution upon the New Zealand people.
These young New Zealanders may have gone along with the well-meaning McGuinness Institute’s wildly optimistic constitution-writing exercise, but, miraculously, the confused, cobbled-together and internally contradictory non-constitution they eventually succeeded in drafting does reflect the radically loose, ingeniously dispersed and infinitely adjustable constitutional instruments that make New Zealand work. They declined to be ruled by unelected judges. They neglected to entrench the Treaty of Waitangi. And they simply refused to surrender Parliament’s supremacy.
Maybe not so disappointing after all.
This essay was originally published in The Dominion Post, The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 14 September 2012.