David Farrar: The importance of the constitutional reform

Opinion

The most important announcement of the week was probably the one which got the least attention. It was the names of the 12 members of the Constitutional Advisory Panel, appointed by Bill English and Pita Sharples.

Most New Zealanders at the mention of constitutional reform start to feel very sleepy, or change the channel to watch My Big Fat Gypsy Wedding instead. It's a natural reaction as Kiwis take the view that if it is not broken, why fix it.

If you mention that there is no constitutional impediment to the current Parliament extending its term from three years to 20 years, then they pay a bit more attention. Likewise if you mention that the Prime Minister can sack the Governor-General.

Then if you mention that Parliament almost passed a law which would have made it illegal for someone to state on Facebook what they think of a current policy issue, they may get alarmed that there is no constitutional protection to this. And they may get even more alarmed when they find out that Parliament once retrospectively amended the Electoral Act to prevent a by-election caused by an MP taking out Dutch citizenship. With that precedent, you could retrospectively over-turn election results, and do it all legally.

So this is why the work of the Constitutional Advisory Panel will be important, even if boring to many. One of the issues they will grapple with is whether we should have a constitution or supreme law, which other laws can not breach. The most famous example is the United States Constitution, especially the Bill of Rights protecting free speech etc.

It is very tempting to say, of course we should have certain human rights such as free speech protected by a supreme law. The difficulty is that this then means you have to allow Judges the power to strike down laws inconsistent with the constitution. This could lead to the appointment of Judges becoming highly politicised.

Another massive issue the Panel will look at is the role of the Treaty of Waitangi in our legal framework. The current situation is the Treaty of Waitangi only has legal impact (outside some common law rights) where it has specifically been referred to in statute. Some advocate that it should become supreme law, and that any laws inconsistent with it become null and void.

Parliament itself will also come under scrutiny. Currently there is a maximum term of three years, but Prime Ministers can call early or snap elections. PMs Holland, Muldoon and Clark have all done this - generally because they hope to get a more favourable result than waiting for the normal election date. Some advocate that this is too much power for a Prime Minister, and that the election date should be fixed - say the last Saturday of November. Linked to that debate, is whether the maximum terms should be three, four or five years.

And one issue which probably does get people interested is the size of Parliament. I suspect many people think 10 MPs would be too many. A non-binding referendum on the size had most vote for 99 MPs. However some academics contend that as we have no upper house, we should have an even bigger lower house - 140 MPs instead of 120.

Personally I believe the time has come when we should have a written constitution which has a bill of rights entrenched as supreme law. Our rights to free speech should not be at the whim of politicians.

* David Farrar is a centre-right blogger and affiliated with the National Party. A disclosure statement on his political views can be found here.