I really like the American constitution. I hope people with an interest in New Zealand made a submission!
http://www.ourconstitution.org.nz/
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Submissions with respect to proposed changes to New Zealand’s constitutional arrangements.
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http://www.ourconstitution.org.nz/
TO:
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The Constitutional Advisory Panel
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FROM
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____________________________________________________________________________
Submissions with respect to proposed changes to New Zealand’s constitutional arrangements.
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This document is submitted by:
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To The Constitutional Advisory Panel
1. These are my
submissions with respect to changing New Zealand’s current constitutional
arrangements.
2. I shall refer to
both the United States and Swiss constitutions as models that New Zealand can
look to as credible and highly effective examples of proper and excellent
constitutional arrangements.
3. The United States
of America first adopted its written constitution in 1787. It is considered
“superior” to and trumps other laws. It is entrenched and subject to Judicial
Review by their Supreme Court.
4. It is lamentable
that more than 220 years later New Zealand still lacks even a proper written
constitution. With all due response, an unwritten constitution is no
constitution at all and can therefore be no proper accountability to
it.
5. The Swiss operate a
highly attractive version of “direct democracy” in which an interested
population are frequently involved in the democratic processes via
referenda.
6. The current model
that operates in New Zealand known commonly as “The Crown” is an out-dated relic
of the British Monarchy that contains a number of undemocratic and undesirable
features.
7. I believe is of
the utmost importance to get the fundamentals and the foundations of New Zealand
proper, correct and according to the rule of law and according to the principles
of democracy.
8. I submit that it
is no coincidence that whereas the USA, with its proper constitutional
arrangements, flourished into the most powerful and dominant country on the
planet in the 20th century whereas New Zealand,
with its non-existent constitutional “arrangements” has floundered.
New Zealand has been unable to keep up with Australia in almost every respect.
Consequently, New Zealand’s best and brightest have for many years voted with
their feet, abandoned the nation they love, with so much going for it, and
immigrated to Australia and other more successful countries.
The Crown and “Parliamentary Sovereignty”
9. New Zealand and
the United Kingdom are the only remaining two countries in the world whose
Parliament asserts the doctrine known as ‘Parliamentary Sovereignty’.
10. Parliamentary
Sovereignty’ provides Parliament with essentially unbridled power. This is
fundamentally undemocratic and entirely unacceptable in a country that claims to
be a modern democracy.
11. The other last
remnant of “Parliamentary Sovereignty” is the source of this doctrine namely the
United Kingdom of Great Britain.
12. However, unlike
New Zealand, the UK Parliament’s powers are, to some degree, bridled by the
existence of an Upper House known as the The House of Lords.
13. New Zealand did
have an upper house until the early 1950’s until it was abolished by an
[arguably unconstitutional] act of Parliament.
14. Furthermore, the
UK Parliament is also now restrained by their participation in the European
Union. In particular the UK Parliament may not make laws that are contrary to
“The Treaty of the European Union”.
15. New Zealand‘s
current constitutional arrangements are uniquely permissive of an entirely
unrestrained Parliament who are currently at liberty to pass any law based upon
a simple majority.
16. This could
include laws that are retrospective, illegal, unfair or unreasonable or laws
that set aside fundamental rights or laws that override the rights “affirmed” in
The New Zealand Bill of Rights Act 1990 (NZBORA).
17. Section 7 of
NZBORA requires that the Solicitor General to provide a report to Parliament
where any proposed law seeks to override the rights contained in NZBORA. This
mechanism has proved to be entirely insufficient to prevent our “sovereign”
Parliament from passing laws that impinge upon the rights of New Zealanders with
multiple laws every year falling into that category.
“Unconstitutional” Laws in New Zealand
18. One example of an
unconstitutional law that affects every New Zealander and passed by our
“sovereign” Parliament is contained in s115 of The Land Transport Act 1998 which
allows the NZ Police to stop any vehicle at any time without reasonable cause.
This section would appear to conflict with our right to be “secure” against
unreasonable search or seizure and our right not
to be arbitrarily detained as provided for in sections
21 and 22 of NZBORA.
19. Another example
would appear to be The Serious Fraud Office Act 1990. Section 9 requires
suspects to answer questions. Section 27 explicitly provides that self-
incrimination is no excuse for not answering questions. Section 45 makes it a
criminal offence not to answer questions for which criminal conviction and
imprisonment may follow. This would appear to conflict with s23(4) of NZBORA
which provides:
Everyone who is—
(a) arrested; or
(b) detained under any enactment—
for any offence or suspected offence shall have the right to
refrain from making any statement and to be informed of that right.
20. These are but two
examples of apparently unconstitutional laws passed by New Zealand Parliaments
to illustrate the point that this issue is not academic or theoretical in nature
but should properly be of genuine concern to all New Zealanders whose rights are
increasingly impinged by our unbridled Parliament.
21. The above
examples are by no means a comprehensive list. The Solicitor General ought to be
able to provide a list of Section 7 reports that have been prepared since 1990
when NZBORA was passed.
22. Several months
ago I requested a copy of the s7 report with respect to s115 of The Land
Transport Act 1998 by email from the current Solicitor General as I have been
unable to locate such a list on the Internet. I have not received a
response.
The United States of America Constitution as a model.
23. The United States
Constitution is written, is superior law and is subject to Judicial Review by
the Supreme Court. The Supreme Court is empowered to strike down any legislation
that conflicts with their written Constitution, which includes their Bill of
Rights.
24. By contrast the
unfettered powers of the New Zealand Government resulting in many undesirable
laws may be at least partly responsible for the many New Zealand’s have
preferred to live and work in other parts of the world.
25. There is no
equivalent provision to s115 in American law. In the United States the Police
cannot stop citizens driving along the road without “probable cause”. Any
attempt to pass such a law would fail because it is in conflict with their
4th amendment which provides in strong and
definite language:
The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things
to be seized
26. If an American
parliament (congress) were to succeed in passing such a law then the Supreme
Court has jurisdiction to review such a law and would be obliged to strike it
down.
27. The same applies
to the draconian provisions referred to above in The Serious Fraud Act 1990.
These appear to be in conflict with the United States fifth amendment which
provides:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation.
28. The powers of
judicial review of laws by the Supreme Court is not a novelty or unique to the
USA. Canada and Germany are but two other significant examples where their
Supreme Court also has such powers.
Entrenchment
29. The American
constitution is entrenched so Parliament is not at liberty to change it by
simple majority. The procedure required for making amendments to their
constitution is described below.
In the first step, the proposed Amendment must be supported
by two-thirds in
Congress, both House and Senate. The second step requires a
three-fourths
majority of the states ratifying the amendment. Congress
determines whether the state legislatures or special state conventions ratify
the amendment1
30. It is therefore
submitted that the constitutional arrangements of the United States are a worthy
role model. In particular, this includes:
a. A written
constitution which includes a Bill of Rights;
b. The constitution
must be entrenched;
c. The constitution
must be superior to other laws;
d. The Supreme Court
must have jurisdiction to review laws and if they are found to be inconsistent
with the constitution, these must be struck out.
31. It is submitted
that these arrangements would serve as a reasonable and effective constraint
upon Parliament which would prevent the passing of laws which may be convenient
for the purposes of government but which are repugnant to reasonable citizens
and which may be repugnant to fundamental principles democracy and indeed
repugnant to the rule of law.
The Swiss model – An example of “Direct Democracy”
32. Binding
referendums are a central and key feature of the Swiss constitution. In effect,
they operate to prevent the government from passing unpopular laws and / or
amendments to constitutions.
33 .Binding
referendums can be initiated by citizens with relative ease and are routinely
conducted many times a year. For example, in 1992 fifteen referenda were held
which included, significantly, rejecting the joining of Switzerland to the
European Union. For this reason Switzerland is still not a member of the
EU.
34. The government
does not have a right of veto over citizen initiated referendums which is simply
a legal procedure regulated by their constitution.
35. Were such
arrangements in place in New Zealand it would seem unlikely that unpopular
legislation such as the “anti-smacking” legislation would
have survived the inevitable citizens initiated referendum that would have
followed.
36. Consider the
implications of this one law: How many reasonable New Zealanders may consider
that the custody of their children is in jeopardy if they were brought before
the
Courts for smacking their children and this became a
relevant consideration in deciding to immigrate to Australia or elsewhere.
Constitutional arrangements with respect to the Judiciary
37. Having been
involved with litigation against the Crown it has become apparent to me that the
current constitutional arrangements with respect to the Judiciary are
insufficient for justice to be seen to be done.
38. The fundamental
problem that arises when a citizen attempts to bring litigation against the
Crown is that the Crown gets to be a judge in its own cause.
39. The separation of
the three branches of government is supposed to mitigate against this apparent
problem under the guise of “Judicial independence”.
40. However, consider
that:
the Solicitor General is a member of Parliament appointed by
the Prime Minister and serves in the Cabinet;
the members of Cabinet share collective responsibility for
their decisions;
The Prime Minister and the other ministers of Cabinet have
ministerial responsibilities for various Crown Agencies that may be defendants
in litigation brought by citizens.
t is the Solicitor General who has overall responsibility of
The Crown Law Office;
it is usually the Crown Law Office that usually represents
Crown agencies as Defendants in civil proceedings.
41. Consider also
that:
it is the Solicitor General who appoints (and promotes)
judges,
42. This means that
those who have overall and joint responsibility for Crown Agencies (the cabinet)
are in a position to appoint and promote judges who make decisions that are
agreeable to them as Defendants.
43. Even without this
apparent problem of appointments we would still have the problem that Judges who
are paid by and are part of the Crown would still sit in judgment over
litigation involving the Crown, which is at least an apparent conflict of
interest and at worst an actual conflict of interest.
44. The right to a
jury trial in civil cases, as provided for in Defamation cases, would mitigate
against this conflict of interest where the defendant is a Crown
entity.
45. The practical
difficulty to this obvious solution is that the jury pool is in heavy demand for
criminal cases (arguably due to over policing). A practical solution would be to
allow the civil litigant against the Crown the right of appeal to a jury. This
would however be entirely unattractive to the Crown but entirely attractive to
citizens who wish to hold Crown Agencies accountable for their
actions.
46. In New Zealand
Judges enjoy “judicial immunity”. In theory this immunity means Judges may be at
liberty to make decisions without any threat of action against them potentially
arising from a dissatisfied party.
47. Unfortunately,
this also has the effect of making lower Court judges at liberty to make
decisions that lack merit, detail, and contrary to established principles of law
and in particular make findings of fact that are manifestly
incorrect.
48. The appeals
process is available in theory to remedy such flawed decisions but higher courts
are increasingly reluctant to revisit erroneous findings of fact made by lower
judges preferring instead to consider only important and new “points of
law”.
49. In practice,
lower Courts are making significant errors that the higher Courts are not able
or willing to correct.
50. These
constitutional flaws with respect to the judiciary result in a Justice system
that, too often, is unpredictable and does not deliver justice and there is
little that an unsuccessful litigant can do about it.
51.The consequences
for such a person can be significant and may account for many of the New
Zealanders who elected to live in another country.
52. It is submitted
that juries ought to be available to consider the merits of an appeal
application and to allow an appeal by jury if they consider it
justified.
Constitutional Arrangement with respect to Oaths of
Office
53.Democracy, by
definition, is government of the people, by the people, for the
people.
54.Certain people
are required to take an “oath” or else they are unable to accept a position in
the employment of the Crown. This includes:
Members of Parliament;
Police;
Lawyers;
Judges.
Doctors;
55.These oaths
require allegiance to “the Crown” rather than “the people” and, it is submitted,
is entirely inapposite to the principles of democracy.
56.Hone Hawawira was
an example of a person elected by his people to the parliament and Parliament
required him to make an oath swearing his allegiance to “the Crown” rather than
his people.
57.The custom of the
taking of oaths not only ought to be discontinued but any oaths already in place
ought to be rescinded. It is submitted that this is entirely contrary to the
principles of democracy.
58.It is submitted
that in New Zealand culture oaths ought be not required to occupy positions
within the Crown and if they were, such allegiance ought to be to the people of
New Zealand and not to the Crown.
Summary
59.I am in favour
of:
a. a written
constitution;
b. the entrenchment of
that constitution;
c. the constitution
being superior law;
d. the Supreme Court
being able to strike down unlawful, unfair, unreasonable or otherwise
unconstitutional laws;
e. citizens initiated
binding referenda
f. a much lower
threshold for allowing referenda;
g. changes to how
judicial appointments take place;
h. changes to the
appeals process that allows applications for appeal to be heard by a jury and if
justified a jury trials
I. the abolishment of
oaths of “office” and in particular oaths that pledge allegiance to the
“Crown”;
j. the renouncing of
existing oaths of office.
60. I would be happy
to provide further information if required or make an oral presentation if
required.
61.I have not had
the opportunity to fully consider the merits of the Waitangi Treaty being
incorporated into a New Zealand constitution. However, if I were to have any
further involvement in this matter I would like to reserve the right to also
give this matter consideration.
