Colin James: Stirring national pride brings constitution into focus

Should we have had a referendum on the Civil Union Bill? There are three relevant answers: yes, that's democracy; no, it's not the way to protect civil rights; it depends ...

That question and those answers illustrate something bigger: we are starting to question and discuss our constitution. A small but significant step will be taken this year.

Governments and MPs don't like referendums. It diminishes their self-worth. It cedes decision-making to the people.

So the Prime Minister, having arrogated to herself Parliament's decision on who will be its Speaker, will decide who is to be Governor-General. She could instead put it to a plebiscite, make it a popular choice, not her prerogative.

She will also decide the election date. A complete democracy would take it out of her hands, make it a fixed date, as in New South Wales. Thus the election would belong wholly to the people.

Jim Bolger put MMP to the people - thinking it would be rejected. Wrong.

Helen Clark and Margaret Wilson scorned a referendum on the Supreme Court Bill. The people might have voted the wrong way, so they said it was just reorganising the courts and not a constitutional matter.

A Supreme Court referendum would likely have passed. If it hadn't, that would have been because the case for change - which must always in constitutional matters be stronger than the case for no change - had not been made convincingly enough to outpoint opponents' scaremongering. The same fear that scaremongers would commandeer talkback radio and tilt the vote lay behind a refusal of a referendum on the Civil Union Bill by its proponents.

They used several arguments against a referendum. One was that referendums are not appropriate on conscience issues. The lie to that is seven decades of triennial polls on whether liquor, long a conscience vote in Parliament, should be banned, run by the state or licensed to private enterprise.

The bill's proponents argued that civil unions were about minority rights and the majority might not adequately defend such rights. "Human rights should not be the subject of political games," said Christians for Civil Unions' Rev Dr Margaret Mayman.

This is a hard question for democrats but it does not bar referendums. If the majority cannot be persuaded of the value of a minority's claim, how well will the majority welcome the enshrinement of that claim as a right in law by their "betters" in Parliament?

And what does such an imposition do for binding the polity together? Not a lot - unless MPs vote in tune with their electorates.

National's Wayne Mapp used a random-sample poll of his North Shore electorate in May to inform himself before he voted against civil unions.

Nor is it convincing to argue that referendums should be for constitutional matters only and civil unions are not one. By paying heed to rights laws - in our case Sir Geoffrey Palmer's Bill of Rights - and deciding cases with them in mind, the courts in our sorts of jurisdictions are elevating rights into a constitutional, or at least quasi-constitutional, frame.

That lurks in the Supreme Court's judgment on Ahmed Zaoui's bail and a similar House of Lords' decision.

So whether MPs want to discuss the constitution or not - National and New Zealand First have decided they won't - the courts do.

Some MPs are, in fact, going to discuss the constitution in Peter Dunne's committee set up on Parliament's last day in 2004.

The committee will first do a "stocktake" of what is in the constitution and where it is to be found - that is, in the Constitution Act and other laws, official documents such as the Governor-General's Letters Patent (riding instructions) and the Cabinet manual, conventions (unofficial agreements with traditional and moral force) and academic and court interpretations.

Dunne expects to report his stocktake midyear.

His take: "We want to see whether the bits of the jigsaw are all there and all still fit together."

A second report much later is to lay out a process for change - if there is to be change.

Dunne sees change as a 10-year process, extensively involving the public. (Whose constitution it is, despite Michael Cullen's claims for "parliamentary sovereignty".)

And the people are stirring. Dunne (rightly) senses a tad more pride in the nation, more of a reaching for a modern identity. Don Brash's Orewa speech and the Foreshore and Seabed Bill were catalysts. The public's interest in the Tomb of the Unknown Warrior is instructive.

And maybe, just maybe, super-cautious Clark, hitherto unwilling to raise constitutional matters for fear of a backlash, is catching on. A test will be if Labour votes for Dunne's New Zealand Day Bill to go to public hearings.

If Clark wants a way into this debate, she could, post-election, test enthusiasm for a new flag. The flag isn't part of the constitution but it is an important symbol. The present flag tells the world we are still British.

Maybe we are. And maybe we aren't any more. Dunne's foray might tell us.