Constitutional Guardian: Only the person who can assure the Governor-General Sir Jerry Mateparae, that he or she commands a majority on the floor of the House of Representatives has the right to assume the office of Prime Minister. If John Key cannot give the Governor-General such an assurance then David Cunliffe must be given the opportunity to do so.
PUTTING A GOVERNMENT TOGETHER after Saturday may prove to be a more than usually difficult task. Minor – actually very minor – shifts in voter support could open up multiple configurations capable of delivering the statement which, constitutionally, the Governor-General needs to hear: that a solid, working majority exists for either John Key or David Cunliffe on the floor of the House of Representatives.
It is this, and this alone, which confers upon a political leader the right (and the ability) to govern New Zealand.
We need to be very clear about this. The right to govern is NOT about which political party wins the most votes. National could be 15 percentage points ahead of its nearest rival in the Party Vote, but if it cannot assemble a clear, working majority in the House of Representatives it will not be entitled to form a government.
Let’s make that even clearer. Let’s suppose that on Saturday night National receives 45 percent of the Party Vote, and that the combined vote of the Labour and Green parties comes to 40 percent. The remaining 15 percent is divided up between NZ First, Internet-Mana, the Maori Party, Act and United Future. Crucially, Colin Craig’s Conservative Party fails – but only just – to clear the 5 percent threshold. In these circumstances, it will be the smaller parties which determine the identity of New Zealand’s next Prime Minister.
Ideally, this process of coalition-building should not extend beyond a few days – at the most. At that point, their negotiations complete, the victorious combination of parties will announce themselves to the public. Upon hearing the news, the Governor-General, Sir Jerry Mateparae, can then pick up the phone and invite the new majority leader to Government House where, upon declaring to the Queen’s representative that he does indeed command a working majority on the floor of the House, he will be sworn in as Prime Minister.
But what happens if the period of negotiation is extended? What if the outcome of the 2014 General Election hinges on the choice of just one minor party – NZ First, for example?
This question was put to the Prime Minister over the weekend and John Key’s response was – not to put too fine a point upon it – just a little bit worrying.
The Prime Minister clearly believes that, following the counting of Saturday’s ballots, his own party, National, will end up controlling the largest number of seats. He is also clearly of the view that any “Kingmaker” must give him the first opportunity to negotiate the formation of a new government.
All well and good – although, constitutionally speaking, the party with the largest number of votes does NOT have first dibs on coalition discussions. That’s just the way it has played out in New Zealand since the first MMP election back in 1996. Even so, the NZ First leader, Winston Peters, has signalled his intention to talk to the largest party “in the first instance”.
But this is where things could get a little hairy. Mr Key told TV3’s The Nation on Saturday morning that if he felt that Mr Peters was mucking him around, he’d advise the Governor-general to summon the new Parliament. He also signalled his intention to continue governing as a sort of pro tempore Prime Minister until defeated by a motion of No-Confidence – at which point he would advise the Governor-General to dissolve the House and call a new General Election. Faced with the prospect of being punished by the voters for forcing them into an unnecessary and unwanted snap election, Mr Key clearly believes that Mr Peters would blink first and get in behind a National-led Government.
Such an outcome would, however, constitute a clear breach of New Zealand’s constitutional conventions and come very close to being a coup d’état. If Mr Key cannot negotiate an agreement with Mr Peters, then the proper course for the Governor-General is to invite the Leader of the Opposition, Mr Cunliffe, to have a go at assembling the requisite majority in the House of Representatives.
Only in the event of both Mr Key and Mr Cunliffe being unable to assemble a majority would the Governor-General be entitled to convene the House and test its members’ willingness to do so. Should that prove unattainable, then – and only then – would the Governor-General be obliged to dissolve the Parliament and ask us – the voters – to elect a new one.
Mr Key’s reference to the Canadian constitutional crisis of 2008 is deeply worrying. The Canadian PM’s claim to possess a “moral mandate” to continue governing without a parliamentary majority was accepted only because the Canadian Governor-General unconstitutionally allowed herself to be guided by a Prime Minister whose right to govern she refused to put to the test.
We must hope that Sir Jerry is made of sterner stuff.
This essay was originally published in The Press of Tuesday, 16 September 2014.