To the Constitutional
Arrangements Committee.
On the review of New Zealand's existing
constitutional arrangements Inquiry.
I make the following comments and suggestions on the terms of reference
being discussed by this committee:
1] New Zealand's constitutional development
since 1840
There hasn’t been any.
Ours is a case of severely arrested development. What we have is a ragbag of
decrees and arrangements. These were imposed by force of arms over a century
and a half ago. Since then they have been tweaked by ¨add-ons”. None have ever
been ratified by the people since we still lack that essential tool with which
to ratify anything, namely: a democratic constitution. Until we grant ourselves
a democratic constitution we remain mired in political infancy.
2] The key elements in New
Zealand's constitutional structure and the relationships between those elements
The key element is
completely missing, namely: the people's
sovereign right to control the output of all legislation at every
jurisdictional level of the nation's governance.
What we have is a “Repocracy”. This
is a term coined by Stephen Neitzke - founder of the Direct Democracy League in
the USA - signifying: “rule or governance by elected or appointed
representatives in a hierarchical structure.”
The characteristic feature of
Repocracies is their usurpation of the sovereignty of the people they rule. As
a result, the “legislation” imposed by a Repocracy is intrinsically
illegitimate.
3] The sources of New Zealand's
constitution
Ancient documents,
such as Magna Charta, are expressions of the interests of particular classes in
the history of the colonial occupier. There is nothing that has come directly from
the people of New Zealand. It is something that we should have remedied many
generations ago.
The people of
Switzerland granted themselves their first Federal democratic constitution in
1848. The people of the Cantons and the Communes had granted themselves their
own democratic constitutions well before then.
4] The processes other
countries have followed in undertaking a range of constitutional reforms
Only one
example has any democratic validity: Switzerland. The process by which a
complete revision of their democratic constitution was carried out is a model
of consultation and interaction with all levels of society. It was approved by
referendum in 1999, as required by that constitution.
A special
point to note is that the quintessential feature of a democratic constitution
is that any amendment or revision to it can only be ratified by the people in a
referendum. In other words: the constitution, as an expression of the
democratic will of the people stands above all assemblies and courts. The final
arbiter of all legislation is the will of the people.
5] The processes which it
would be appropriate for New Zealand to follow if significant constitutional
reforms were considered in the future
The essential process
would have to be a constitutional convention completely controlled by the
people. Its single clear objective must be to grant ourselves our first
democratic constitution.
The task of this committee is simple: you must recommend the calling of
a Constitutional Convention at the earliest opportunity.
The terms of reference for such a Convention would be equally simple:
Construct a democratic constitution taking the 1999 Constitution of the
Helvetic Confederation as a primary model.
Ratification would, of course, be by referendum.