Mai Chen: Unbridled power will be redistributed

As New Zealand society becomes more diverse and divergent, some want more protection of what they view to be core rights and values. They want core rights and values to be inviolable from Parliament's law-making powers - present and future - because they can no longer presume that a majority of parliamentarians represent people like us.

There is also concern about the status being accorded to the Treaty of Waitangi in policy and legislation, especially where that confers rights and entitlement to resources, sometimes in preference and/or in greater shares to non-Maori New Zealanders.

Although the Foreshore and Seabed Act has now been passed, the manner in which the courts interpret applications for territorial and customary rights orders and how they are implemented may continue to be a catalyst for public debate about the appropriate status of the treaty in the constitution.

I think in my lifetime, New Zealand will enact a supreme constitution which will redistribute power from the executive and Parliament to the judiciary. How much will depend on public support for the courts having powers to check parliamentary law-making.

The adoption of a supreme constitution is likely to be slowed down by the painful discussion New Zealanders will have to have on the appropriate status of the Treaty of Waitangi. The reason is that a significant minority of New Zealanders, mostly Maori, will argue that any supreme constitution will lack legitimacy if it excludes references to the treaty, but majority public agreement on what that reference should be will be difficult to achieve.

Ultimately, the answer may be a political compromise/accommodation like the Foreshore and Seabed Act 2004, which may not necessarily be recorded in the supreme constitution. Legitimacy for any supreme constitution will also require the majority of New Zealanders to vote in favour of it. There may be agreement to treaty references in the preamble - even the Supreme Court Act 2004 referred to it in its purpose clause.

But I do not think this accommodation will satisfy the aspirations of some Maori.

The answer to what is the appropriate place of the treaty in New Zealand's constitution will not be strictly legal. The treaty's status will remain ambiguous although that will now be by deliberate design. Governments will be much more careful about tampering with any delicate balance struck in relation to the treaty.

We are less likely to see references to giving effect to treaty principles, for example, without a better definition in the statute or policy as to what that means.

I think New Zealand will also change from a monarchy to a republic. Constitutional symbols are important and having a head of state who is the Queen of England will increasingly be viewed by New Zealanders as inappropriate for the independent nation it has become. The powers, authorities and the role of our president - if New Zealand becomes a republic - will be similar to those currently exercised by the Governor-General on behalf of the Queen.

Most importantly, New Zealanders will not necessarily follow the lead of Australians in wanting to elect their new head of state. The appointment system whereby the government of the day consults with opposition parties, will probably continue, or we may move to appointment by Parliament. Appointment is critical, because an elected head of state will inevitably mean a party political contest, and a more activist president who will want to campaign on a record of achievements and may have desires to expand their empire.

The essence of constitutional reform is about changing the distribution of power, who has it, how much, and what trumps when there is a showdown between different branches of government.

A fundamental change to the distribution of power in New Zealand's constitution would be a move to a supreme law constitution, including a bill of rights and references to the Treaty of Waitangi. But how likely is it that a majority of New Zealanders would vote for that outcome, or a variation of it in the near future, or in the medium term, if ever?

Given the decreased powers MPs would have under a supreme constitution, I doubt that the initiative for such a change is likely to come from that quarter. Any significant constitutional change would have to be legitimated by majority support at a referendum.

I do not think that an extraordinary majority of MPs supporting a significant constitutional change would ensure sufficient public buy-in for the change, if it was not otherwise supported by majority public opinion, whether that be expressed informally, or formally by majority support at a referendum.

There have been growing calls for referenda before parliamentarians vote on controversial law reform matters such as the Civil Union Bill and the Prostitution Reform Bill. The same argument was raised over the Supreme Court Bill, which abolished the Privy Council, because it was considered by some to be effecting fundamental constitutional change. The volume of submissions to the select committee on that bill also showed the depth of public concern with constitutional issues.

National Leader Don Brash's first Orewa speech on the need for one law for all regardless of race unleashed strong public sentiment from Maori and Pakeha on race relations and the status accorded to the treaty.

There has been a significant level of interest and support for the campaign to change the New Zealand flag and building national identity was identified in the Prime Minister's statement to Parliament in February as one of nine key areas of activity and policy development critical to lifting New Zealand's performance and living standards and realising New Zealand's vision for the future.

I interpret these events as having constitutional significance; as indicators of the pulse of evolving constitutional consciousness in New Zealand.

They reveal public disquiet about parliamentary sovereignty, and the status being given to the treaty in policy and in the distribution of taxpayers money, a desire for better protection of core fundamental values, and the need for our constitution and its symbols to better reflect our development as a nation.

In short, these events reveal concern about unbridled power and a lack of adequate checks and balances in our system, despite the greater separation of powers that MMP has effected. The inevitable minority or majority coalition governments which this system of voting results in have prevented the executive branch from presuming automatic support from Parliament for legislation to enact Cabinet's policy decisions. Greater consultation and, to some extent, greater transparency have resulted in the system of government.

But, in my view, the public is still saying that the additional checks and balances that MMP has brought into our constitutional system are still inadequate to properly check the executive and Parliament's powers.

* Mai Chen is a Wellington public lawyer.