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”.
Fine.
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.
