Assignment 1

Short Essay

Student ID: Paper: Paper code: Stream: Lecturer:

1140584 Constitutional Law LAWS107-10Y (HAM) Tutorial 01 *A A SEM Gay Morgan

Due Date:

June 8th at 4pm

Persons A, B, C, D, and F all present their perspective on the primary expression of the New Zealand constitution. Although differing, all their statements (excepting As) stand on a common ground: constitutionalism. Constitutionalism is the normative idea the power of the state should be in some way regulated, limited, prescribed, and constrained so that it is not arbitrary (thus constitutionalism has a very close nexus with rule of law). In a specifically Western liberal sense, constitutionalism

contains the idea of just or moral rule, embracing democracy, individual freedom, and human rights. In the broadest sense (and most importantly), constitutionalism is the peoples particular culture of moral restraint reflected in their countrys constitutional arrangements.1 So the lettered persons are stating what they think are the means by which New Zealand fulfils the goals of constitutionalism. Person A exclaimed, [New Zealand] do[esn]t even have a constitution! A is wrong. New Zealand does have a constitution an unwritten one. An unwritten constitution, according to Joseph, does not mean there are no formal legal documents encapsulating constitutional principles. But these legal documents will not exhibit the twin characteristics that constitute a written constitution, namely: fundamental law[law establishing the institutions of government and their respective authorities] and higher law [rules protecting the constitution from unjustified or unprecedented change].2 An

unwritten constitution may also contain conventions. These are somewhat nebulous to define, but in general terms conventions are non- justicible rules stipulating the morality of the constitution, including the proper use of legal rules.3 Further, the unwritten constitution will prescribe (either conventionally or legally) the competence of the respective constitutional actors and institutions (thus curbing arbitrary power).4 The constitution, then, will be a collection of secondary rules (legal or non-legal) regulating the legitimate exercise of state power through primary rules.5 In respect to conventions, key aspects of the constitution are non- justicible. Cabinet is a creature of convention, a secondary rule and therefore a component of the constitution; for it determines how power may be exercised in this case power must be transmitted through certain political actors. Likewise, some legal documents (such as Acts of Parliament) impose conditions on the exercising of power, meaning they too, as secondary rules determinative of the validity of primary power, are constitutional in nature.6 In such respect, the Constitution Act of 1986 stands as an excellent example for it imposes conditions on the exercise of power, some of which pertain to constitutional institutions and their legal interrelationships.7 Even though New Zealand does not enshrine a centralized written

J Allen, B Thompson and B Walsh Cases and Materials on Constitutional and Administrative Law (Blackstone, London, 1990) at 10-13. 2 P Joseph Constitutional and Administrative Law in New Zealand (3rd ed, 2007) at 121. 3 AV Dicey, Introduction to the Study of the Laws of the Constitution (1982) at cxl cxlviii. 4 ESC Wade and AW Bradley Constitutional and Administrative Law (10th ed, Longman, 1984) at 3, 4, 6. 5 Ibid. HLA Hart The Concept of Law (1961) 41, 42. 6 S De Smith The New Commonwealth and its Constitutions (1964) at 109. 7 Margaret Wilson Relations Between the Legislature and the Executive (Hassall and Saunders) at 77.

constitution containing higher and fundamental law, this nation does have an unwritten constitution, due to the reality legal documents and conventions apply as secondary restraints on primary power.

Is B justified in concluding New Zealand has a constitution on the grounds of good governance? But first, does New Zealand respect rule of law as B states? Rule of law is the idea that power may not be exercised arbitrarily, that no one person or institution may exercise all power, that no one is above the law, and the application of the law will be fair, equal, impartial, and general.8 On 15 December 1975, Prime Minister Muldoon issued a press release ordering the immediate termination of the New Zealand Superannuation Scheme as legislated by Parliament in the New Zealand Superannuation Act 1974. Yet Parliament was not scheduled to assemble until 22 June 1976, and could not accede to Muldoons directive until that date. In the intervening time, therefore, Sir Richard Wild CJ in the resultant Supreme Court case of FitzGerald v Muldoon held Muldoon was in breach of s 1 of the Bill of Rights (1688) (Eng) because ...the pretended power of suspending of laws...by regall authority without consent of Parlyament is illegall.9 By deciding against Muldoon, Wild CJ instructed the nation no one was above the law or could exercise power arbitrarily, especially in a procedurally incorrect way. Additionally, Wilds recognition that the Bill of Rights precluded executive encroachment on Parliaments unchallengeable law-making capacity, intimates one of the best ways of preserving rule of law through the separation (formal or informal) of the judiciary, the executive, and Parliament. With division of powers assured, FitzGerald v Muldoon reaffirmed New Zealands (perhaps faltering) commitment to rule of law.10 Despite executive rule of institution as evidenced in the Clyde Damn Saga, New Zealands ongoing commitment to a strong rule of law is demonstrable in the implementing of Mixed-Member-Proportional voting ( MMP) in 1993. MMP sought to lessen the ability of the executive (as expressed as National or Labour) to control Parliament through absolute majority, thus separating Parliament from the executive and allowing it to perform its proper function of holding the executive accountable for its actions.11 Now turning to the first question posed, good/just governance does not automatically presume a constitution. Good/just governance infers the more normatively loaded term constitutionalism. But if a constitution is a collection of secondary rules, there is nothing in that definition prescribing the secondary rules must be conducive to the production of moral or just primary rules. For instance, a secondary rule such as the rule of recognition could state For a primary law to valid, it must discriminate against Jews. Irrespective of its unjust nature, this is still a secondary rule for it determines the legal validity of a primary rule. A constitution may therefore be unjust and still remain a constitution, but the constitution would only

8 9

AV Dicey Introduction to the Study of the Law of the Constitution (from Chen and Palmer [Supra] at 24-25. FitzGerald v. Muldoon 2 NZLR 615(NZCS). 10 M Chen and G Palmer Public Law in New Zealand: Cases, Materials, Commentary and Questions (1993) at 11, 13. 11 G Palmer and M Palmer Bridled Power: New Zealands Constitution and Government (4th ed, 2004) at 13.

fulfil the goals of constitutionalism if it contained a just arrangement of secondary rules. Person B, then, was predominantly right when stating New Zealand has rule of law. But constitutions are not conterminous with just governance. Person C accurately acknowledges New Zealand has an all powerful Parliament, or more precisely, Parliamentary Sovereignty. This was the legal theory popularized by AV Dicey asserting Parliament was the ultimate manifestation of the sovereignty of its citizens. Free and fair elections were the conduit for the personal sovereignty of the people translating into the representational sovereignty of Parliament. Hence Parliament, can legally exercise absolute, unquestionable powers through its resultant legislative supremacy.12 Case law occurring after Dicey, supports the theory, as epitomized by Pickin v British Railways Board where Lord Reid emphasized that a court may not ...disregard a provision in an Act of Parliament on any ground....13 FitzGerald v Muldoon discloses Lord Reids holding was fully applicable to New Zealand by virtue of its affirmation the executive could not overrule Parliament. C raises an interesting point when suggesting New Zealands system would collapse if an all powerful Parliament abridged civil rights, but that Parliament would never legislate against such freedoms. Civil rights are imperative in New Zealand. The means by which Parliament acquires legitimate sovereignty is procedurally, mainly through free and fair elections democracy. Electoral coercion will render Parliaments sovereignty invalid, for sovereignty cannot be granted under duress. Thus civil rights; freedom of speech, conscience, expression, and thought; assume much gravity.14 Why wont Parliament abridge civil liberties (or any rights for that matter)? Dicey had two answers. First, any serious degradation of liberties would cause illegitimacy and possible revolution. These are extra-legal external limitations on Parliament. Second, conventionally (and illustrating the importance of conventions in the Westminster System), ...Parliament [will] not legislate for tyrannical and oppressive purposes. Conventions are also therefore the internal

obligations of constitutional actors, and consequently are an extra-legal internal constraint on Parliament.15 However, some rights of New Zealanders are recognized legally in the Bill of Rights Act 1990. Yet in keeping with the doctrine of Parliamentary Sovereignty, nothing in the Act New

(according to s 4) substantively limits the absolute law-making capacity of Parliament.

Zealands pragmatic, constitutional culture predilection toward process based, unwritten, evolving constitutionalism is inimical toward rights based constitutionalism.16 C was right: Parliament is all

12

TRS Allen Legislative Supremacy and the Rule of Law Democracy and Constitutionalism (1985) CLJ 111 at 129. 13 Picken v British Railways Board [1974] AC 765. 14 A Geddis Electoral Law in New Zealand (2007) at 9-11. Marc F Platter Liberalism and Democracy: Cant Have One Without the Other (1998) Foreign Relations < http://www.foreignaffairs.com/articles/53815/marc-fplattner/liberalism-and-democracy-cant-have-one-without-the-other?page=3>. 15 Phillip A Joseph Constitutional and Administrative Law in New Zealand (2nded, Wellington, 2001) at 495. 16 Matthew S Palmer New Zealand Constitutional Culture (2007) 22 NZLUR 565 at 589, 590.

powerful, and civil liberties and conventional recognition of them are cardinal in New Zealand, otherwise Parliaments electorally acquired legitimacy would be dubious. Person Ds assertion of elections being foundational in New Zealand, a state in the tradition of Western democratic liberalism, has much merit. Social contract theory, initiated by Hobbes in the 17th century, contended the war of all against all in the state of nature disadvantaged everyone. The solution was the Leviathan, an all-powerful, undivided state, legitimated through the single historical transference of all the sovereignty of the individual. Locke, concerned with the Leviathan abusing its power, amended Hobbes idea by suggesting ultimate sovereignty was retained by the people. Thus the state was limited, and a nebulous concept of consent of the people to the representation of their sovereignty arose. James and Stuart Mill and Jeremy Bentham later crystallised Lockes consent theory. Democracy was the means for choosing, authorizing and controlling political decisions commensurate with the public interest.17 New Zealands form of democracy, Parliamentary

sovereignty, can be reasoned to be a hybrid of the above viewpoints. Parliament is the all-powerful leviathan (Hobbes), the sovereignty of which is dependent on the consent of the people for Parliament to represent their sovereignty (Locke), and the form that consent takes is democracy periodic elections (the two Mills and Bentham). So legitimacy in New Zealand entails democracy as the procedure for attaining representation, thereby affirming the sovereign power of Parliament.18 Stemming from the epicentre of liberalism with its concern for rule only by consent, elections are key to New Zealands constitutional legitimacy. In the 70s and 80s, a crisis of legitimacy transpired. Consent was insufficient. The primitive First-Past-the-Post (FPP) voting system consistently

produced largely unrepresentative governments. Labour and National maintained a duopoly of power with, in 1993 for example, only a scant 35.1% of the national vote a non-majority conceivably not even a shifting minority - vote. When amalgamated with the Westminster fusion of executive and legislature, and the unitary, unicameral nature of the constitutional arrangements; FPP rendered New Zealand an executive paradise.19 Impervious to any moderation due to an absolute (and a

disproportional) majority in Parliament, the government became a law unto itself. The government was not responsible to the people, because the component of the state representing the people was beholden to it. Thus the governments legitimacy could be first questioned on its non-majoritarian support, and then on its non-accountability to that non-majority as depicted by the Fourth Labour Governments unpopular socio-economic restructuring. However, the MMP party vote introduced in 1993 improved proportionality. Minority and coalition governments, lacking an absolute majority, are consequently now more responsible to Parliament and therefore less dominant.20 Elections are
17 18

D Held States and Societies (1985) at 6, 7, 10, 11, 15. Geddis, above n x at 16. 19 Geddis, at n x at 26-29 20 Palmer and Palmer, above n x at 10-18.

foundational to New Zealand. Without them, consent to representation of citizens sovereignty by a Parliament (and by extension through the policies of the executive) cannot be given. If consent is not given, New Zealands constitutional foundations of democratic liberalism declare the government illegitimate and morally depleted. Person F apprehends the Treaty of Waitangi as the cornerstone of New Zealands constitutional order. Fs correctness is dependent on whether the Treaty is the grundnorm of New Zealands legal order. Kelsen believed the grundnorm to be the first constitution, a binding norm, presupposed to be valid. A grundnorm is therefore the ultimate legal reality, legitimating the legal systems built upon it. It is only extinguished in a manner in which the legal order itself determines, or by a revolution, which replaces the old grundnorm with a new one.21 In Rep. Of Fiji v. Chandrika Civil Appeal No. ABU0078/2000S, the criteria for the establishment of a new legal order was that the new order was successful, effective, non-oppressive and enjoyed popular acceptance.22 Is the Treaty of Waitangi a grundnorm, and does it meet the cases criteria for a new grundnorm? Arguably, it is the first legal reality jointly entered into by Maori and the Crown. It has competitors though. What about the Magna Carta or the 1688 Bill of Rights? The sentiments expressed in both documents can still influence New Zealand law today, as evidenced by Wild CJs appeal to the 1688 Bill of Rights in FitzGerald v Muldoon.23 Given the weight now placed on the Treaty, it is likely that it is the primary binding norm, presupposed to be valid. With the predominantly conventional nature of New Zealands constitution, popular acceptance of the Treaty is paramount. Is it popularly accepted today? Yes. Lord Cooke of Thorndon described the treaty as simply the most important document in New Zealands history.24 It seems the treaty is a grundnorm. It is presupposed to be valid, enjoys popular support, was incipient between Maori and the Crown, has never been fully overthrown, and has not extinguished itself on its own terms. While it may have competitors, it is definitely, as Lord Cooke pointed out, increasingly in the public limelight, telling evidence of its essential status.

While it is possible in a specific sense to say if an individual person is correct, overall no one contention presides over another. Perhaps elections can be afforded pre-eminence since they are key in legitimating the use of power, but then the Treaty of Waitangi is increasingly being seen as a binding document or norm upon the use of power as well. The answer may well lie in the processbased, evolving, pragmatic, unwritten (adaptable) nature of New Zealands constitution. This nations constitution is therefore on a journey, meaning no final conclusions are reached. Hence, it is only possible to say what the constitution includes, not the relative importance of its components.
21 22 23 24

H Kelson The Pure Theory of Law (translation M Knight) (1970) at 115 117.

Rep. Of Fiji v. Chandrika Civil Appeal No. ABU0078/2000S.

Chen and Palmer, above n x at 11-13. Morag McDowell and Duncan Webb The New Zealand Legal System (4th ed, Wellington, 2006) at 171.

I Bibliography

Allen, J, Thompson, B and Walsh, B Cases and Materials on Constitutional and Administrative Law (Blackstone, London, 1990) Allen TRS Legislative Supremacy and the Rule of Law Democracy and Constitutionalism (1985) CLJ 111

Chen, M, Palmer, G Public Law in New Zealand: Cases, Materials, Commentary and Questions (1993) De Smith, S The New Commonwealth and its Constitutions (1964)

Dicey, AV Introduction to the Study of the Laws of the Constitution (1982)

Dicey, AV Introduction to the Study of the Law of the Constitution (from Chen and Palmer [Supra]) FitzGerald v. Muldoon 2 NZLR 615(NZCS)

Geddis, A Electoral Law in New Zealand (2007)

Hart, HLA The Concept of Law (1961)

Held, D States and Societies(1985) Joseph, Phillip A Constitutional and Administrative Law in New Zealand (2nded, Wellington, 2001) Joseph, P Constitutional and Administrative Law in New Zealand (3rd ed, 2007)

Kelson, H The Pure Theory of Law (translation M Knight) (1970) McDowell, Morag, Webb, Duncan The New Zealand Legal System (4th ed, Wellington, 2006) Palmer, G, Palmer, M Bridled Power: New Zealands Constitution and Government (4th ed, 2004) Palmer, Matthew S New Zealand Constitutional Culture (2007) 22 NZLUR 565

Pickin v British Railways Board [1974] AC 765

Platter, Marc F Liberalism and Democracy: Cant Have One Without the Other (1998) Foreign Relations <http://www.foreignaffairs.com/articles/53815/marc-f-plattner/liberalism-and-democracy-cant-have-onewithout-the-other?page=3>

Rep. Of Fiji v. Chandrika Civil Appeal No. ABU0078/2000S

Wade, ESC, Bradley, AW Constitutional and Administrative Law (10th ed, Longman, 1984)

Wilson, Margaret Relations Between the Legislature and the Executive (Hassall and Saunders)