Editorial: Treaty central to talks on constitution

The Treaty of Waitangi. Photo / Supplied.

Life, said John Lennon, is what happens when you are making other plans. The same might be said of New Zealand's constitution. It has developed informally for the most part, as need arose rather than from the constitutional discussions we held from time to time. We are about to have another.

This time it arises from the governing agreement between National and the Maori Party after the last election. A constitutional review was agreed to resolve the parties' conflicting positions on the Maori seats. National's pre-election policy was to abolish them, the Maori Party wanted to add them to the "entrenched" provisions of the Electoral Act.

Nothing more was heard of the review until last week when Deputy Prime Minister Bill English and Maori co-leader Pita Sharples announced terms of reference for an exercise that is intended to take three years.

As well as Maori representation it will canvass a longer parliamentary term, the size of Parliament, Bill of Rights issues, a written constitution and the role of the Treaty of Waitangi.

Logically MMP should be there too, but that will have its own review if it survives the referendums already scheduled.

The constitutional exercise will be overseen by the two ministers with advice from an expert panel yet to be named, and a reference group of nominees of all parties in Parliament. The advisory panel, which will lead a public debate, will have a Maori co-chairman and the Maori Party wants proceedings to reflect the Treaty partnership of equality rather than majority rule.

It may be the first time since 1840 that Maori have had a strong hand in the initiation of a constitutional discussion. The place of the Treaty is likely to be the first consideration.

Should the Treaty be incorporated in a written constitution? If so, which version? Can there be sufficient agreement on its meaning to give its words legal force? Would its present status be enhanced or diminished by becoming a reference point for legal and constitutional dispute?

Whatever the answers, there is no doubt New Zealand could not now contemplate a written constitution without the Treaty at its centre. That indeed may be the main reason to bring all of our law governing electoral and political procedure into a single grand statute.

There are good arguments against doing so. A written constitution can be a confining document, less adaptable than ordinary law to new public preferences and needs. The British tradition of "unwritten" constitutional understandings supported by various laws and judicial rulings has served the cause of liberal democracy very well.

But it has been the liberalism of majority rule. When a state decides to strengthen a minority interest, it is likely to need a supreme charter. The American Constitution gives less populous states disproportionate federal representation.

New Zealand long ago put some of its electoral law beyond the reach of a bare parliamentary majority. The entrenched provisions, requiring a 75 per cent vote in Parliament, insist that an election is held every three years. National and Labour would prefer it was four years and together they could change the entrenched clause, but they dare not. Referendums show the public finds three years enough.

Mr English says significant proposals that come from this review will need either to pass a referendum or receive broad cross-party support. A referendum would set the bar high if the Treaty or the principles ascribed to it are to be given constitutional force. But the fact of having this discussion should strengthen the sense of partnership. That is the way our constitution takes shape.