The Need for a Written Constitution

Towards the tail-end of our recent campaign for the general election, Government Minister Paula Bennett declared that some people should have less human rights. At around the same time, Prime Minister Bill English picked up on this and said, commented that "it was good that new Zealand lacked a written constitution as it gave governments flexibility."

French political philosopher Montesquieu has pointed out that ‘there is no liberty, if the power of judgment be not separated from the legislative and executive powers’. Alexander Hamilton, following Montesquieu, described an independent Judiciary as ‘the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws’. 

Responsibility for the state of the law and its implementation must rest with the branches of government that are politically accountable to the people. The people can bring influence to bear on the legislature and the executive to procure compliance with the popular will. The problem with New Zealand, is that we lack an entrenched Constitution to "ring fence" people as individuals from the arbitrary exercise of power by the legislature. In other words what the Prime Minister calls, "flexibility", means the untrammelled ability for Parliament to take away the rights of citizens.

This power, if not checked, can lead to the arbitrary use of power, often fuelled by populism. However, with no check, the exercise of the popular will can lead to the arbitrary exercise of power, leading to what one commentator has called, "the Tyranny of the Majority".  In New Zealand, where we have no written Constitution, Parliament has an unfettered ability to pass laws, even if they offend against fundamental liberties and human rights.

But a clamour for a popular decision must fall on deaf judicial ears. The Judiciary are not politically accountable. The Courts cannot temper the true application of the law to satisfy popular sentiment.

Parliament can pass laws and our Courts enforce them. However, the risk in our system, is that while Courts are bound to a correct application of the law, whether or not that leads to a popular decision in a particular case and whether or not the decision accords with executive policy. 

A written Constitution empowers the judiciary and can operate as a check on the Legislature. In the Australian case of Clunies-Ross v The Commonwealth ((1984) 155 CLR 193 at 204.) the High Court said: 

It would be an abdication of the duty of this Court under the Constitution if we were to determine the important and general question of law ... according to whether we personally agreed or disagreed with the political and social objectives which the Minister sought to achieve. ... As a matter of constitutional duty, that question must be considered objectively and answered in this Court as a question of law and not as a matter to be determined by reference to the political or social merits of the particular case. The rule of law would be a hollow phrase if the Courts were not bound to ignore popularity as an influence on a decision. 

Alexander Hamilton in the Federalist Papers over 200 years ago observed of the US Constitution: 

Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence and to introduce in its stead universal distrust and distress. Some critics of the Judiciary, and even some Judges, mistake public popularity for confidence. But if the Courts were to seek popular acclaim, they could not be faithful to the rule of law. Confidence is based on faithful adherence to the law by the Courts which are charged with its declaration and application. Our Constitution, rooted in the common law, does not need to express the proposition that the nation is under the rule of law and that the Courts are the organ of government responsible ultimately for the enforcing of the rule of law. 

Some critics of the Judiciary, and even some Judges, mistake public popularity for confidence. But if the Courts were to seek popular acclaim, they could not be faithful to the rule of law. The problem with this from a New Zealand perspective, is that we do not have a written Constitution, thus often where the Courts arrive at a decision that upholds human rights, this may be seen as politically unpopular, and Parliament can therefore by dint of a mere majority appeal to populism and erode the principle that the Court sought to uphold.

Sadly, because of this we have seen the right to elect trial by jury, voting rights, the loss of the partial defence of provocation for murder, the equality of arms (in terms of fair trial rights), and a host of other rights eroded by our Legislature in recent years. 

While most people have little sympathy for gang-members and might believe, they deserve less human rights protections than others; I have no doubt that that these same people would be aghast if Police used their road side check-point power as a ruse to obtain the details of elderly New Zealanders on their way home at night from attending a pro-euthanasia meeting at their local community hall (this actually happened in Lower Hutt last year). You see, once you say, some people have less rights than others, where does it stop? Who decides?

So the comments of Ms Bennett and the Prime Minister are equally concerning. Just replace "gang member" with "euthanasia supporter" and you see the risk. Human rights don't attach to people because of their standing in society.  They attach because we are human. 

The logic behind the Prime Minister's stated delight for "flexibility" is a slippery slope and smacks of populism. That our politicians have sacrificed so easily, fundamental bulwarks against the abuse of state power, speaks not only of their ignorance of Constitutional conventions; but also of the fundamental weakness of a Constitution that is unwritten and relies for its survival upon the quality and character of those who occupy the driver's seat at any given time.

“The accumulation of all powers, legislative, executive and judicia[l] in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny” (James Madison, Federalist No. 51, 1788).