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.
Winston has said as of this week the voters should consider a Labour/NZ First govt.
So lets look forward to rejoicing next Monday morning that the rotten corrupt Key regime should be finally gotten rid of and we can move on.
Gloria Patri, et Filio, et Spiritui Sancto. Sicut erat in principio, et nunc, et semper, et in saecula saeculorum. Amen.
In the aftermath of the election, the caretaker convention applies. Key can't do anything without consulting the other parties.
(As for Canada though, I actually think the Governor-General acted properly. In the absence of a vote of no-confidence, Harper was still PM).
Whoever wins this election. Johnny Boy will remain the caretaker PM until Parliament re-convenes next Feb. As Anon says, he must consult all the other parties on any changes he wants to make in the meantime.
No, she did not. The vast majority of Canadian jurists insisted that the PM's right to continue in office had to be put to the test on the floor of the House of Commons. To avoid losing the planned Vote of No-Confidence in his government, Harper advised the GG to prorogue the House before the vote could be taken. In acceding to his request - while knowing that his control of the House was in serious doubt - Michaelle Jean clearly failed to uphold the constitutional convention that before a GG is obliged to follow prime-ministerial advice the PM must first have demonstrated the possession a working parliamentary majority.
With the backing of the Canadian media, Harper was thus permitted to keep on governing without a parliamentary majority and without parliamentary scrutiny. Effectively he staged a GG-backed coup d'état not unlike John Kerr's overthrow of the Whitlam Government in 1975.
Absolute bloody nonsense, Tim. For God's sake, read the bloody Cabinet Manual!
Can you really be of the view that we can have a General Election in September but not have a new government until February?
What fucking planet are you people living on!
Chris, while this is all terribly exciting for political tragics the reality is much more likely to play out the way it normally does when Winston holds the balance of power. A protracted negotiation with Winston posturing and pontificating while his brother handles the coalition negotiations for him as legal counsel while charging the taxpayers for the privilege as long and as hard as he can.
Winston, while attempting to hoover up another couple of points this week by saying a Lab/ NZ first govt was possible also pointedly made clear that the Greens were not likely to be "in government"
Do you honestly expect the Greens to get screwed again? 18 years of scratching on the window trying to get in only to be thwarted again by Winston Peters. The Norman meltdown will make his flag tantrum look like a Roger Moore eyebrow movement by comparison.
Some months ago, perhaps as long as year ago, you wrote about the GG floating this idea, a little indirectly, at an event in government house. This suggests that among the "inner circle" the possibility has been open to consideration for some time. While the GG might well go along with such a plan, I cannot see Winston Peters playing ball. To do so would run counter to his entire political history.
Chris, I simply want to say thank you. Finally someone actually sounding passionate, pissed off and sensible all at the same time. It is a rare thing this election cycle.
Head in hands, hand on heart...never have I felt so frustrated and disappointed. Oh, and only in NZ would the media trot out the latest Cameron Slater talking point that Glenn Greenwald did not win a Pulitzer Prize. Can someone explain to them how a Pulitzer for Public Service works? God help us :(
I would have to agree with your intercoursing planet comment Chris.
Its got to be pretty damn obvious that for the left bloc to form a govt under current polling then the major players can only be Labour, Greens and NZ First.
By announcing that the electorate should consider a Labour/NZ First govt what can Winston be trying to achieve other than shore up some extra party vote.
Has anyone noticed the red fluro strips just stuck over all the Nat billboards "your party vote is crucial".
The party vote is king.
Stephen Harper is like Joyce, except without any of the charisma.
Canada has been in trouble for a long time now.
I fear this all probably academic as the most likely outcome is that National and one or more of a group of parliamentary minnows will have a majority.
In fact we seem closest to the nightmare scenario of a National/Conservative coalition. That means both Paula Bennett and Christine Rankin in the same ruling line up.
So it's crunch time for the poor, the sick and the vulnerable, as well as for those of us for whom the term 'social responsibility' retains some meaning.
I really don't give a fuck about the constitutional implications of all this crap. What I would really like is a meaningful debate about what sort of a society we need or want. Scotland is having one, why can't we?
No, she did not. The vast majority of Canadian jurists insisted that the PM's right to continue in office had to be put to the test on the floor of the House of Commons.
At the time I recall her getting complimented for the right decision.
The issue was to "prorogue Parliament". By putting the issue to the Commons, the GG would have been disobeying the PM's instructions, which is much more similar to the Kerr and Whitlam thing. Moreover, Canada's previous experience with this sort of thing (a 1926 refusal to allow an early election) blew up in the GG's face when it turned out the PM really did have the numbers.
two more sleeps and then at least we will know who is left in the game...and beating ourselves up with hypotheticals prior will be revealed as the waste of energy it is.
@Kat "Has anyone noticed the red fluro strips just stuck over all the Nat billboards "your party vote is crucial".
I sure noticed them. National knows its back is against the wall. Rampind it up as their house of cards falls down around them.
Reeks of desperation to me.
No Chris you have it wrong mate. Regardless of who gets in straight after an Election, the encumbent Govt. remains in power [i]until a new Govt. is sworn in.[/i] That happens when Parliament re-convenes in Feb. Bits and pieces are done before then. The new Govt. must ask the House for confidence and supply.
Hey, don't be a grumpy guts mate, it's purely a technicality. I still loves ya!
bugger...wishing time away..tis 3 more sleeps
Tim, you are mired in the world of FPP.
There will be a meeting of Parliament well before Christmas due to the early date of the General Election.
Even had the election been held in late November the Parliament would still have met before Christmas.
I well remember travelling down to Wellington in December 1999 to watch the Labour-Alliance-Green dominated House being sworn in - and going to the big party in the Legislative Council chamber afterwards.
In the age of jet aircraft and computers it simply isn't necessary to wait until the new year to get things started.
I also noted Key's comments on minority government with serious concern. I think it's important that this is thrashed out in the media before the election, so that it's clear to everyone that is would not be acceptable. If it doesn't get sorted out in advance I wouldn't put it past him to try it, and possibly even get away with it...
"As we commemorate the centenary of the outbreak of the first world war, this referendum campaign may be yet another example of how easily fierce ideologies, tribal passions, longstanding grievances, undue optimism and political cock-ups can take hold, with consequences that go on to affect and afflict the lives of millions.".....the final paragraph from an article in the Guardian about the Scottish referendum....thought it applicable
November elections have traditionally meant a new Government is sworn in early December. Basically, once results have been finalised. The old Government can hang on until Parliament kicks it out, but it normally resigns when the result is clear.
Take, say, 1975: the election was held on 29th November, and the new Muldoon Government was sworn in on 12th December.
"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."
We came pretty close after the Schnapps Election of 1984, with Muldoon's constitutional crisis. Mercifully it was pretty brief.
This conversation is a little like the bit in the "life of Brian" movie, where the disciples meet to decide whether to get out and rescue Brian, but get bogged down in procedural motions. Like most of that movie, clever but not particularly funny.
and John Key is not the Messiah...hes just a very naughty boy.
You're correct if we assume that Saturday is going to deliver something like a clear result.
If not, we won't be able to duck the issue of what's the legitimate path from point A to point B.
If we do attempt to duck this question, we might end up at point Q, point Z or some other unfortunate location.
Or have I misinterpreted your apparent ennui?
Up till last night, I was convinced that the constitutional conundrum was of purely academic interest, as, one way or other, National seemed bound to lead the next government.
Following the TV3 poll, I'm still of the opinion that this is the most likely result. But I'm no longer 100% certain.
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