The presidential predilections of Helen Clark

Prime Minister Helen Clark

Prime Minister Helen Clark has consolidated power to be president in all but name.

Since her election in 1999 as the first female Labour Prime Minister, Clark has wielded an iron hand, retaining high popularity ratings for a record 5 1/2 years in office.

But the advent of new constitutional arrangements - particularly the institution of a Supreme Court - will test Clark as she grapples with the cold reality of having New Zealand's final appellate court based here rather than 19,000km away.

Clark will not concede that there are lingering tensions between the Executive and the judiciary after last year's very public spat between her ministers and Chief Justice Sian Elias over judicial independence.

But ironically it is the tensions which emerged following her Cabinet's decision to overturn the Court of Appeal's ruling on the foreshore and seabed case which have put her own leadership style in the frame.

Political insiders point to Clark's operating style as "presidential". Her focus is squarely on her ability to go over Parliament, front for the Executive and work her way through and around the constitutional checks and balances, and persuade New Zealanders of the rightness and rectitude of her policies and unite them behind her.

The advent of MMP - which has brought more parties into Parliament - means Clark sometimes must compromise to get her policies through the House. Nevertheless, she has continued to gather power and can always muster a majority.

Clark acknowledges "that may all be true".

But she offers the point that in a political system like New Zealand's no one can act as a strong, decisive Prime Minister unless "you've got very strong backing".

She puts her hold on power down to a strong cohort of experienced Labour ministers who in some cases - as with her deputy Michael Cullen - go back 30 years.

"We work very collegially as a government. We work the phones pretty hard and on a basis of 'no surprises' consult with each other a great deal."

Clark put the resources of her Department of the Prime Minister and Cabinet at Cullen's command when she deputed him to find a political solution to the foreshore and seabed.

The Court of Appeal judges had scuttled the Crown's notion that it owned the foreshore and seabed outright and opened the way for Maori to test claims to customary usage in front of the Maori Land Court

Clark believes her Government was right to rule out an appeal to the Privy Council. "That would have been seen as kicking for touch ... and with the record of the Privy Council in recent years, our feeling was they probably would have referred it back to the New Zealand courts.

"There would have been a series of decisions in the Maori Land Court which would have led to the awarding of freehold title," she said.

"I don't believe that would have been consistent with mainstream New Zealand's values and ethos."

Clark also deputed "H2" - her chief of staff Heather Simpson - to help settle Labour's ranks, particularly among Maori MPs, and help broker a majority to get the Government's legislation through Parliament.

DPMC - as the Prime Minister's department is known - formed a special unit to bring the proposed law together, organise technical advice, and troubleshoot.

"It reported to Michael because I made him minister in charge of it. It copied things to me, but he was one who dealt with it, I only came involved at key decision points."

Clark plays down DPMC's involvement as a simple evolvement of the department's role since its inception in 1990 in Sir Geoffrey Palmer's days as Prime Minister.

But one high-profile Maori who was a closely involved said "the PM's department basically disembowelled the Maori MPs" during the negotiations. Cabinet Minister John Tamihere, who had faced down a hikoi, was privately upset that Clark left him to front the fury of protesting Maori.

"He's pissed off he couldn't outflank Heather Simpson and the PM's department," said the source.

But ironically, while DPMC had become "an adjunct of the president's office" it could not strategise away one outcome: the advent of the Maori Party - its potential to pick up Maori seats and potentially change power .

Her opponents claim Clark wanted to orchestrate the initial appointments to the Supreme Court to ensure a friendly bench. But Clark disputes that: "The reality is, the Government has appointed the five most senior judges from the Court of Appeal who all have outstanding merit.

"It seemed to me, moving to a new court, that it was critical that it be seen to have been drawn from the most senior levels of the existing bench so there could be no question this was politically constructed."

Clark's words beg the question of why she allowed her former Attorney-General, Margaret Wilson, to appoint a special panel to advise her on the composition of the court, if the Executive had intended to bump the Court of Appeal judges upstairs.

"Margaret was proceeding on the basis it was a new court and she would take advice on the composition, but I was of the view from a reasonably early stage ... that it was very important to play it very safe, very conservative and cautious.

"The best way forward was to take the most senior judges and nobody could question the integrity, the seniority or the merit.

"I tend to be like that with constitutional things - I'm pretty cautious."

Cautious she may be, but Clark's "take no prisoners" style, her dominance of the political scene and ability to face down opposition parties and even her own Cabinet Ministers - she has fired five of them - come at a price.

She has earned a reputation as a political control freak, acts as her own "eyes and ears" and leaves messages on ministers' cellphones at midnight

The fifth Labour Government did not get the label "Helengrad" by accident.

There has been a shift to a top-down environment where even the head of the Defence Force must be scrutinised by the State Services Commission.

The move towards a more presidential style of direct action did not suddenly emerge under Clark's regime.

Over the past 20 years New Zealand prime ministers have increased the Executive's reach.

Politicians like Act MP Richard Prebble say parliamentary sovereignty is a misnomer. "These days it is the Executive which controls Parliament," he says.

"A bigger threat to Parliament and democracy than judicial activism come from the unfettered powers of prime ministers to turn backbenchers, the guardians of parliamentary democracy, into ministers."

Prebble - who will retire from politics this year - says the upshot is that the Executive has slowly stripped the rights of members and hobbled their abilities "to represent rigorously the people we are elected to argue on behalf of".

Auckland University's Janet McLean paints the picture of a strong but fragmented Executive which employs coercive - if arm's length - mechanisms of control subject to traditional hierarchical forms of political accountability.

In Executive Power in New Zealand, McLean notes that courts have imposed procedural disciplines on the Executive and have increasingly brought human rights, international agreements and Maori Treaty and customary rights to bear on executive decision-making.

But this has been countered by the Executive, which has attempted to neutralise Treaty and customary claims, preserve its treaty powers with increased but limited scrutiny from Parliament, and to embrace proceduralism while maintaining substantive decision-making powers.
If that is not enough, the Executive can simply resort to "soft law" forms of external bureaucratic controls, enhanced command and control procedures, and highly discretionary internal controls over the public purse.

Some high-profile incidents have raised questions over whether New Zealand's public service has become more politicised since Clark took power in 1999.

Under the Westminster system, high-ranking civil servants are expected to provide objective advice.

Under a presidential system - particularly the US model - top-ranking officials change with the Administration.

Two incidents stand out.

Firstly, a decision by Mark Prebble, the then head of the Department of Prime Minister and Cabinet, to withhold four critical documents from a dump of papers relating to a genetic engineering controversy (Corngate) before the 2002 election.

Secondly, the publication of explicit notes by a Ministry of Foreign Affairs and Trade official of an off-the-record conversation by National leader Don Brash with US senators. Brash was alleged to have told the senators New Zealand's nuclear policy would be "gone by lunchtime" if National got in power.

State Services Commissioner Michael Wintringham said Prebble was wrong but would not be sacked. In fact he now has Wintringham's job.

Said Clark: "There had been a convention that briefing papers from DPMC were not released. That, I understand, is what he applied - certainly without any knowledge from me."

In Prebble's case, when he was subsequently asked for comment over the Brash note-taking - which was put into the public arena by Clark herself and Foreign Affairs Minister Phil Goff - he told a parliamentary committee that opposition MPs should ask diplomats to leave the room if they did not want their conversations with foreign leaders reported to the Government.

If Clark has wondered aloud if she is sometimes a "victim of my own success as a popular and competent Prime Minister." Her staff might wonder if they are sometimes victims of their own loyalty.

Her electorate office has been in the gun twice, first over "Paintergate" where loyal friend and secretary Joan Caulfield sought her advice over what to do with a painting at the centre of a police inquiry into allegations that Clark had signed off another artist's work. Caulfield told police she has been told to do with it as she liked (she burned it)

A later inquiry into how sacked Cabinet minister Lianne Dalziel obtained an asylum-seeker's private legal advice singled out Caulfield as the electorate worker who had faxed her the lawyer's letter.

In each case Caulfield was cleared of any wrongdoing.

Clark does uphold the courts in an important respect.

She refused to comment while alleged Mossad agents Kelman and Eli Cara were still in front of the courts on passport charges, saying merely "there will be a strong and public response to this matter once the court action has concluded". And she has refused comment on the dangerous driving charges laid against police over a prime ministerial motorcade that put its foot down to get her to a rugby test.

More seriously, there are issues about to how the police play out their role in relation to the Prime Minister, and that of other citizens, particularly the judiciary.

Take the charge of "seditious conspiracy" which police filed against Timothy Selwyn, the activist who put an axe through Clark's Auckland electorate office. The charge - which basically means orchestrating a "rebellion against the state" through exciting disaffection against the Government - has not been laid since the early 1900s.

Police said Selwyn's attack was a pakeha protest at the Government's attempts to steal Maori land through legislation.

But constitutional lawyers believe the police may have over-egged the situation.

They say Selwyn could have a strong defence of free speech under the Bill of Rights Act.

Opposition politicians are concerned it took pressure from them before Police Minister George Hawkins put indirect pressure on police to lay charges against Tuhoe activist Tame Iti for brandishing a gun at Waitangi Tribunal members, who have a quasi-judicial function.

Iti was finally charged with possession of a firearm in a public place without a licence and possession of a firearm in a public place except for some lawful purpose.

But Attorney-General Michael Cullen has yet to indicate whether stronger police charges of desecrating the New Zealand flag and discharging a firearm will also be laid.

Coupled with the increased powers the Prime Minister and Executive have accrued to deal with terrorism in the post-September 11 environment, a new stage is set for a constitutional debate on whether the PM's powers should also be defined by statute - like a judge's.

Ironically, while Cullen rails against the "creeping process of eroding the sovereignty of Parliament" and says "a half-pie Americanisation of our judicial system will serve no one in the long- term", constitutional analysts are asking the same questions about Executive power.

Helen Clark's powers

The Cabinet Manual is the best starting point for a job which, despite its importance, is still not defined by statute.

It gives the PM's powers as:

* Head of the Government with powers that have evolved over time and are established by constitutional convention, not statute.

* Head of the Executive - forms and maintains a Government, allocates portfolio and ministerial rankings.

* Determines the Government's general policy direction.

* Chairs Cabinet - approves the agenda, leads meetings and is the final arbiter on procedure.

* Is principal adviser to the Sovereign and Governor General.

* Can dissolve Parliament and call an election.

* Is Minister in charge of the Security Intelligence Service and all other security groups.

* Also leads a political party (Labour) and its caucus.

* In How Government Works (see link below), Clark defines her role as an active chairman of the board this way - "Direct, task-focused, active."

How Helen Clark rates

Former Act Leader Richard Prebble

* On Clark's personal style:-

She would be the most powerful Labour Prime Minister ever. People say she's like Holyoake (the consensus building National Prime Minister of the 1960s). But she certainly isn't. I don't want to imply she's a communist but she certainly runs a politburo style with power in the hands of very few people.

Helen Clark's style is to wield power indirectly. Her office is extremely close and closed. They don't leak - there are others who are instructed to leak. Part of her strategy is not to take responsibility for anything that goes wrong. If something gets close to her - like the painting signature issue - somebody else jumps up and admits responsibility.

But if you're in Clark's team you are completely expendable. Clark doesn't come to help struggling ministers - she cuts them adrift.

* On Clark and the judiciary

In Sian Elias, New Zealand has got a strong Chief Justice who is very independent - that would drive Clark nuts.

There's no doubt in my mind that former Attorney-General Margaret Wilson was trying to stack a Supreme Court full of their own judges. Wilson as a Clark loyalist would never have advocated anything she didn't think that Clark supported - which does not mean to say Clark would have done it.

But Sian Elias is totally independent - both financially independent and independent by personality. I'm pretty sure that Elias is the one that stopped them from stacking the Supreme Court and I think the judges know that too. (Prebble sat in Cabinet with Clark during the tail end of the 1980s Fourth Labour Government. He walked from the Labour Party when Clark ousted Mike Moore as Leader after the 1993 election loss and later became Act Leader from 1996 to 2004. He announced his retirement at the weekend.)

National MP and strategist Murray McCully

* On Clark's personal style:

Helen Clark has the considerable benefit of being around for a long time and knowing how the levers work.

When her day comes they'll turn on her in a hurry, but in the meantime she enjoys pretty much as much power as any politician since Muldoon and possibly more than him - it's a pretty detailed understanding of how the processes and institutions work.

She also has some pretty experienced lieutenants who are battle hardened and will give anything to win. None of their grandmothers should sleep safe in bed at night. They will kill them for a couple of points in the opinion polls.

* On Clark and the judiciary

Judges are not exactly unpopular with the punters. In an environment where judges have been criticised for soft sentences - if you put a bit of stick about from a political level it's not exactly unhelpful. (McCully is reputed to have been on the winning side of every National Party leadership coup since entering politics. A former PR man himself his website (see link below) features a weekly newsletter that keeps track of the "sisterhood".