Constitutional Crisis Looming?

With two recent polls showing Labour hemorrhaging support to the Greens readers are asking interesting questions. What happens if both Labour and the Greens poll 20% on election night? Who will be the Leader of the Opposition? Labour or the Greens?

That is interesting. But we are more interested in some other scenarios.

What happens if the seven headed hydra becomes a reality? And with the Greens as the largest Party?

Who will the PM be? We can't have a joint PM can we? So will it be Jeanette or Comrade Norman?

Or will we have a joint PM? Will they both get the PM salary or will they have to split it? Will there be a Deputy PM in this circumstance? Maybe the PM and Deputy PM salaries could be pooled and divided in two.

But what happens at State banquets who is going to speak? The joint PMs? Who will foreign leaders meet when they visit? The PMs jointly? And what about APEC who will represent New Zealand? Will New Zealand be allowed 2 seats at the table instead of one?

The same questions about salary and speaking at banquets etc apply even if the seven headed Axis hydra does not win, but instead makes up the opposition, but with the Greens as the biggest Party - say the 21% to 19% scenario.

These are all interesting questions. Does a constitutional lawyer have any comments?

National Gets Real On Maori Seats

We are pleased that John Key has had the balls to admit that abolition of the Maori seats is no longer a bottom line issue for National. We are not National people and this issue has been one that has made us uncomfortable about National.

The Hive's view is that change with regard to Maori seats is an issue for Maori to resolve. If the Maori Party gets its act together - which it is showing the signs that it can - and corners more of the Maori Party vote, there may well come a time when Maori realise that they can do even better through the party vote than they do right now through winning electorate seats. But as there are continuing questions being asked about MMP then we think it best that the issue of the Maori seats be put to one side.

We hope that National continues to give priority to early resolution of all unresolved Treaty settlements.

Need For Constitutional Change

A few days back a reader of The Hive commented that it would be interesting to have our views on who should be in a Labour or National Cabinet. We undertook to consider this, but we have to say that we have been increasingly attracted to the idea of putting down a list of names about who should be in cabinet - without having to constrain ourselves to a list of MPs (current or aspirant). In the UK for example, Gordon Brown has been able to plug skill gaps in his Cabinet by using the House of Lords. We have no such mechanism available here. So to deliver on our vision we would need constitutional change. [Wouldn't be handy for a New Zealand PM to be able to employ the best at a time of crisis rather than relying on the the caucus or coalition partners as your talent pool?]

We are also very concerned about the power of the Executive in New Zealand relative to the power of the legislature and the lack of any checks and balances on the system. MMP was supposed to deliver some balance, but it really hasn't performed as hoped for. moreover it has allowed small parties to pork barrel the system quite successfully. This has added a quite distasteful taint to the body politic that was not really there before.

By chance, David Farrar is having a bit of a rant about an issue that really annoyed us as well - the use of the savings guarantee scheme for political purposes, the stupidity of the media in allowing Labour to get away with what was a very serious abuse of power, and a failure of our senior public servants to threaten to resign in the face of this blatant abuse of power. In the midst of the rant Farrar concludes as follows:

Stuff like this really does anger me. That is because it is permanent damage. You destroy a convention and it is very very hard to put it back together. It is an eternal lowering of the standards. It is because of these shameful actions that I have changed my mind 100% on having a written constitution.
I used to be totally against having one. I trusted parties and PMs to respect the unwritten rules and conventions that had served us for over a hundred years and the UK for centuries before that. I no longer have that trust. Parliamentary supremacy means the Government can retrospectively amend the Electoral Act - and have done so for the most partisan of reasons. It does not get much worse than that on a sliding scale. This is why it is vital that at some stage we the people vote into existence a supreme law or constitution that not even a Helen Clark can ignore or amend. A law that allows Judges to strike down a Government’s actions or even a Parliament’s actions if they act in an undemocratic way.
If we ever manage to get such a supreme law, it should be dedicated to Helen Clark and Robert Muldoon. They have proved why it is necessary.

So he too is thinking in similar space. a number of those who comment on Kiwiblog are also making relevant points.

So readers, we would welcome your views. This post is pre-warning that a fuller post with some definite proposals is in gestation. Your ideas will be given careful consideration during the gestation period.

Moore On Constitutional Reform

Mike Moore has a piece in the Dominion Post (page B5-no electronic copy yet) repeating his call for an eminent persons group to be formed to consider all the issues around consitutional reform. he suggests that the smaller parties should be pushing this idea in Parliament. He sees Winston Peters as an ideal person to "take hold of this issue".

We are not so sure we agree with Mike on Winston's strengths in this area, but will watch closely how this issue is handled behind the scenes in the next few weeks.

More From Moore On The Constitution

In today's NZ Herald Mike Moore answers some of the questions that were raised following his initial rush of blood on the need for a constitutional debate. Mike suggests that he isn't the best person to champion this issue. Who would be? Phil Goff?

More On The Governor-General

At least one blog is this morning continuing to take issue with our concern over the political tainting of Government House as a result of Rob Taylor being appointed the new Official Secretary.

Can we draw reader attention to the Introduction to the Cabinet Manual. This was written by Sir Ken Keith, who knows a bit more about matters constitutional than most. It is titled ON THE CONSTITUTION OF NEW ZEALAND: AN INTRODUCTION TO THE FOUNDATIONS OF THE CURRENT FORM OF GOVERNMENT

Amongst other things Sir Ken reminds us:

The Queen reigns . . .
That basic equation and the democratic character of the main conventions appear clearly in relation to the powers of the Queen and Governor-General under the law. Thus they may appoint Ministers and other holders of important offices (such as the Judges, the Defence Chiefs, the Ombudsmen, and the Controller and Auditor-General), they may dismiss them (following certain procedures), they may summon and dissolve Parliaments, they may assent - or not - to Bills passed through the House, and they may agree - or not - to proposed regulations and Orders submitted to them by the Executive Council and Ministers.
. . . but the government rules . . .
The Queen and the Governor-General are free to take those steps as a matter of law. But, as a matter of convention, they do so only on the advice of the Prime Minister or Ministers who have the support of the House of Representatives - that is, on the advice of those who are elected by the New Zealand voters, and who belong to a party which has a majority in the House; or who are part of a coalition which has a majority; or who, as a minority, are accepted by the House as able to sit on the Treasury benches. There must always be a ministry (the government of the day) to advise the Queen or Governor-General.

. . . so long as it has the support of the House of Representatives
That convention of course incorporates its own limit - one that conforms with democratic principle. If the government loses the support of the House, or if the Prime Minister loses the support of the governing party, then the ministry or the Prime Minister is likely to change: another party or combination of parties may now have the support of the House, or the governing party may have chosen a new leader. Or the Governor-General may face a more difficult situation because the position within the House or the governing party is unclear.

Situations like this were rare in New Zealand under the first past the post electoral system, but have been less rare since the introduction of the proportional representation electoral system. The essential principle in such situations is that the Queen, as a constitutional monarch, or the Governor-General, as her representative, acts in accordance with the advice of the Prime Minister or Ministers who have the necessary support of the House of Representatives. Where that support is unclear, the Governor-General relies on the elected representatives in the House, and especially the party leaders, to clarify whether a party or grouping of parties has the support of the House and should now be appointed as the government (or continue as the government), or whether fresh elections will be required. In the meantime, the incumbent government continues in office, where necessary acting in accordance with the convention on caretaker government.

We hope that we never face this situation, but we are concerned about the possibility that later this year or after the election "the Governor-General may face a more difficult situation because the position within the House or the governing party is unclear. " Yes the GG will in these circumstances rely "on the elected representatives in the House, and especially the party leaders, to clarify whether a party or grouping of parties has the support of the House and should now be appointed as the government (or continue as the government), or whether fresh elections will be required". But we would be a whole lot happier if we had confidence that no one partisan was going to be closely linked to this process of clarification and ultimately, decision making. Unfortunately we can not have such confidence with someone like Rob Taylor in this role.

The Cabinet Manual 1.7 states quite clearly "The office of Governor-General is apolitical. By convention, the Governor-General avoids becoming overtly involved in the "party politics" of government, despite having an integral place in the formal process of government." We think it most unfortunate that the Government has just tainted the apolitical office by this appointment.

Constitutional Debate

on 10 January The Hive called for renewed debate on the New Zealand constitution. We were delighted today to read similar views being expressed in today's NZ Herald by former PM Mike Moore. John Armstrong, fresh back from his holidays, doesn't agree. He thinks the time is wrong, and that neither of the major political parties have an appetite for this type of debate in election year. He also argues - "if it ain't broke don't try and fix it.." But like Moore we see things becoming increasingly broke, and the current Government should take responsibility for doing the breaking. Moore notes, New Zealanders have witnessed the abolition of the right of appeal to the Privy Council, the failure of the political executive to provide another referendum on the future of MMP, and the breaching of an old multi-party consensus on issues such as electoral finance laws. Age-old values are, says Mr Moore, being eroded in a way that is "visionless, dangerously ad hoc, short term and confusing".

John Armstrong correctly interprets Moore as targeting the PM in his article. She should feel uncomfortable for what she has presided over.

We repeat our view from 10 January: The Hive welcomes discussion on our constitution. We think we need a written constitution and US style protection of this constitution to avoid the abuse to our constitutional conventions that have occurred under the current Government. Our name, and our links to the UK and UK monarch need to be considered carefully in the context of a written constitution. We would be completely happy to see New Zealand a Republic, and likewise we would be open to name change. Aotearoa-New Zealand would be just fine.

Out of concern for causing further offense to David Cunliffe we won't repeat its ending....

The Republic Of Aotearoa-New Zealand

The editorial today in the Otago Daily Times talks of organic change to our constitution and muses about the future of the name New Zealand. The ODT suggests that New Zealand isn't used by Maori much, if at all, and that young people, of whatever ethnic background use the Aotearoa-New Zealand formulation. The ODT suggests that New Zealand might disappear through non-use.

A different attitude on this topic was expressed a couple of days ago by Richard Long when writing for the Dom Post. He suggests the widespread use of Aotearoa in pre-European settlement times is a myth.

The Hive welcomes discussion on our constitution. We think we need a written constitution and US style protection of this constitution to avoid the abuse to our constitutional conventions that have occurred under the current Government. Our name, and our links to the UK and UK monarch need to be considered carefully in the context of a written constitution. We would be completely happy to see New Zealand a Republic, and likewise we would be open to name change. Aotearoa-New Zealand would be just fine. Aside from anything else it would have Aotearoa-New Zealand's diplomats sitting ahead of the Australians at many international meetings. And the likes of David Cunliffe would not, in future, have the prospect of not getting to meet idols like Bill Clinton at US Presidential receptions because of hand shake fatigue (this actually happened to Cunliffe when he was a junior diplomat stationed at the NZ Embassy in Washington. When it was clear the President wasn't going to make it as far as the "Ns" Cunliffe broke ranks and walked up to the President and introduced himself, taking everyone,including the Secret Service by surprise....)