Written Constitutions in a BCIR Environment

 Contrasting articles  for Muriel Newman's website by (1) James Allan ( Garrick professor of Law at the University of Queensland; &  BCIR activist Dominic Baron    They force us to consider  how  Binding referenda would operate  differently  if New Zealand had a written Constitution , rather than  merely a set of conventions.  From  US experience , written Constitutions invite judicial activism . But  maybe not ? Baron argues that  a Constitution  that is  regularly maintained  by the people through BCIR doesn;t require judicial "repair" .   However , at least in the  immediate term , a Constitution  could limit the types of  Proposals which  could be  accepted  for voting ,  because they would breach the Constitution . 

Allen

Representative Democracy  should be used for all decisions  & a written Constitution for none . ( Approx 1400 words )

 http://www.nzcpr.com/guest311.htm

Baron

A written  Constitution with Representative Democracy is not a problem  provided  a universal Direct Democracy exists .   ( Approx  1900 words )

Wikipedia - Swiss Federal Constitution (article )

http://en.wikipedia.org/wiki/Swiss_constitution

A reply to James Allan by Dominic Baron
5 November 2012
A democratic written constitution for NZ.

James Allan dismisses peremptorily the very idea of a written constitution for New Zealand. Yet I note right at the outset that at no point does he make any reference to the most thoroughly democratic constitution on this planet, that of the Swiss Confederation. That lacuna will be remedied by my response.

Let's start with this remark of his:

“Now I am a big time partisan of democratic decision-making.  I think all the key social policy decisions, the line-drawing choices related to abortion, same-sex marriage, how to deal with those claiming to be refugees, where tobacco companies can advertise, and myriad other such debatable, highly disputed issues, ought to be made by the elected legislature, NOT by judges.”

I too reject the interference of any judge in the making of the rules by which we wish to live. But then James Allan equates democracy with an elected legislature! Here is where we part company at the most fundamental level: I reject totally the notion that any assembly should determine any of the basic rules by which our society lives. Only the people have this right. Only the people have the right to determine the rules for abortion. Only the people have the right to determine the meaning of marriage. The only role of assemblies is to propose, but only the people have the right to dispose. The people have the absolute right of veto. Anything else is a usurpation of the sovereignty of the people. The most savage example of this usurpation occurred recently when 'parliament' ignored the overwhelming command from the people of New Zealand not to criminalise parents who make use of a smack to correct their children's behaviour.

Continuing his theme about the role of the judiciary in both the Australian and United States political systems in “interpreting” those nations' constitutions James Allan observes:

“Heck, this ‘living tree’ interpretive approach is the position of about half the US Supreme Court and, these days, over half of the Justices of Australia’s top court.

And what that means is that judges, and no one else but the judges, can update the written Constitution.”

The moment one looks at the Swiss Constitution one sees what nonsense Allan is spouting. The Swiss Constitution is updated several times a year by the will of the Swiss people. Often against the will of the political classes! The political classes wanted to build a massive tunnel to take the trucks of the European community through the Alps to Italy, but the Swiss people said: “No, expand the railways instead.” The political classes want Switzerland to join the European Union – the people of Switzerland regularly tell them to go jump in the lakes! The political classes trembled before imagined Islamic threats and desperately opposed the Swiss people's initiative to stop the construction of any more minarets in Swiss towns. The people gave the political classes a well-deserved kick in the pants and the imaginary Islamic menaces evaporated in hot air.

Now James Allan comes up with an even sillier remark:

“Put a little more simply, written constitutions take away from democracy.”

The Swiss Constitution entrenches the right of 50,000 electors to demand a veto referendum on any legislation approved by the Federal Parliament. The Swiss Constitution entrenches the right of 100,000 electors to put forward an entirely new Initiative for referendum. The Swiss Constitution requires any decision to participate in international treaties and organisations to be ratified by referendums. The Swiss Constitution requires any alteration to the Constitution, and to the rights and duties of citizens to be ratified by those self-same citizens in referendums.

All referendums are binding by definition. Anything else is merely a taxpayer-financed opinion poll.

And now for some classic canards:

“Don’t forget, without a written constitution and relying solely on the elected legislature New Zealand was the first country on earth to grant women the vote;...”

This was done purely for electoral advantage by the political party that was about to lose power, exactly the same trick was used in Great Britain a couple of decades later! Swiss men formally granted women the vote in a referendum in 1971 – when the vote really means something you care deeply about who you give it to!

...“it gave Maori men the vote back in the 1860s;”...In Switzerland, from 1292 onwards German-speakers, French-speakers, Italian-speakers, Romansh- speakers, Catholics, Lutherans, Protestants all got the vote.

...”it brought in social welfare laws for workers before just about anywhere else;”... Swiss voters brought in by their initiatives in the 19th and 20th centuries sensible provisions for regulating employment.

...”it completely overhauled its economy when it was breaking at the seams in the 1980s.” Those 'overhauls' have proved to be terribly destructive in reality, and the people of New Zealand would have struck them down if their power to veto those destructions had not been usurped. By contrast, no unrealistic interventions in the economy have ever been demanded or approved by the Swiss people.

“New Zealand’s record on just about any criterion going looks better than those of places with written constitutions.” Hmm, how does the NZ economy compare with the Swiss...? More significantly, how do NZ democratic rights compare with the Swiss...?

And then James Allan proceeds to dwell on the wholly undemocratic aspects of the US and Canadian constitutions:

“But the problem with a written constitution doesn’t stop there.  It gets worse, and a little more complicated too, because the scope for those interpreting a written constitution at the point-of-application (meaning the judges) to impose results that they happen to like on the rest of us depends in part on how specific and detailed the legal text happens to be.  So interpreting a Tax Act, say, involves giving meaning to something that is mightily detailed and though there will always be areas of doubt and uncertainty that the judge will have to resolve, they will be few and far between. 

But written constitutions are not like Tax Acts.  They do not deal in detail and specifics.  They tend to be short.  If they have an entrenched Bill of Rights they deal in moral abstractions that are vague, amorphous and begging to be filled with content NOT by you and me and the voters but by the judges of the Canadian Supreme Court or the US Supreme Court (who might say the words now, all of a sudden, demand same-sex marriage (as in Canada) or almost no limits on the funding of elections (as in the US) or just about anything else). “

I quite agree! That is why no constitution can be legitimate if it isn't democratic. And it most certainly is not democratic if it is subject to the idiotic concept of a 'Supreme Court'! There is only one inalienable Sovereign Power that has the absolute final say on any words and their meaning: The People. The Swiss Constitution is amended by the will of the people alone. No 'Supreme Court' can ever over-rule the will of the Swiss people. It is precisely the presence of a 'Supreme Court' with the power to over-rule the will of the US people that renders the US constitution such a depressingly anti-democratic document.

Then James Allan worries about 'judicial interpretations' of the Treaty of Waitangi:

“And here’s the thing.  The exact same thing can be said of the Maori Party’s push to have a written constitution that incorporates the Treaty of Waitangi.”

No need to worry, James, because the integration of the Treaty of Waitangi into a legitimate democratic constitution will be interpreted only as the people see fit, and not by any 'judges' whatsoever.

And here we come to the crux of James Allan's error:

“And you know what?  The elected parliament won’t be able to do anything about it. That’s the point of a written constitution.  It trumps parliament.  It overrides parliamentary sovereignty.  It enervates democracy.”

Quite the contrary! Only in a written constitution can true, real democracy be entrenched to the deepest level. The concept of 'parliamentary sovereignty' is utterly void because sovereignty rests inalienably with the people. The present political régime is illegitimate and usurps the sovereignty of the people of New Zealand. It must be, and will be, demolished by granting our nation our first democratic constitution.

And James Allan continues compounding more errors in the same vein:

“Now that may be a good thing if you reckon you can get a more favourable deal out of a committee of ex-lawyer judges in Wellington than you can out of the democratic process.  But for democrats like me it is an appalling prospect.

And don’t forget.  It’s not as if  New Zealanders will be offered an Australian-style written constitution that largely forswears amorphous, content-free abstractions.  And it’s not as if Kiwis can be guaranteed an approach to interpreting this document that will be guided by the intentions of those drafting it or the understandings of those who agreed to its adoption.  Heck, even with New Zealand’s statutory bill of rights the top Kiwi judges almost immediately proclaimed that its meaning would be independent of the understandings of those who drafted it and enacted it.  And in Australia they purport to ‘find’ things in the text that have supposedly (and implausibly) lain dormant for 80 or 90 years.

Look, I think you can bet your very last dollar that should you go down the road of a written constitution its meaning will in fact be determined by a process that essentially involves the top judges consulting their own moral sensibilities, perhaps consulting what is going on overseas in other jurisdictions, and that involves a whole heap of so-called ‘balancing’ and deciding on what they, the judges, consider to be ‘reasonable’.

Let’s face it.  Go down this road and you sell away some of New Zealand’s wonderful democratic decision-making.”

Yes, if we went the way of the Australian, Canadian, Fijian, South African, US, and dozens of other constitutions that are profoundly illegitimate because they were created by political élites for political élites, then indeed it would be “an appalling prospect” to me too. But this is the point: the people of New Zealand must create a legitimate constitution that can only be amended by the people by referendums. Drawing heavily on the Swiss model we must create a constitution that stands above all assemblies and all courts of any description.

And at last a glimmer of perception from James Allan:

“I think it would be a disaster for New Zealand to move to a written constitution of the sort almost certain to be offered.”

Agreed. For example: the draft constitution elaborated recently by a group of 50 young élitists under the aegis of the McGuinness Institute. It kicks off with the abysmal error of presenting itself as an 'act of parliament' and then fails totally all the democratic tests for a legitimate constitution. Worst of all it betrays the sovereignty of the people to a mere parliament and thence to the ultimate control of 'judges'. That truly is an appalling travesty of a constitution.

Yet again, James Allan worries about the Treaty:

“And I would run a mile from incorporating or entrenching the Treaty into any such instrument, not least because overwhelmingly no one knows what it means when applied to any specific issue.  So all you will be buying is the views of the top judges, instead of your own, the voters.  That’s not a trade I would ever make.”

Precisely, that's what a legitimate democratic constitution is designed to prevent.

Then James Allan makes yet another mistake, this time in believing that the method of electing people to assemblies is the only democratic function open to us:

“And to finish with a last bit of bluntness, I’m not overly sure that Mr. Key is all that reliable on these sort of issues.  He seems to me, from over here across the Tasman, to be a man who courts popularity rather standing up for what will benefit New Zealand in the long term.  One of the most important issues in my mind for New Zealand had always been to rid the country of one of the world’s worst voting systems, MMP.  Mr Key by and large stayed out of that debate making a few perfunctory anti comments but doing little else.

But if he thought MMP was holding back New Zealand’s ability to prosper in the modern world, as I do, then he should have taken the risk of getting actively involved.  The result might have been different.  (And I do still worry about New Zealand’s prospects under this lousy voting system that puts the major political parties at the mercy of small ones that garner barely 1 in 20 of the votes but who can use their ‘kingmaker’ status to demand all sort of things – even a proposal to look at moving to a written constitution that locks in the Treaty.)”

Nothing could be more trivial in a legitimate democratic constitution, such as the Swiss one. Because they know that their proposals, if approved by the Federal assemblies, are subject to the possibility of a veto referendum being demanded, political parties minimise that risk by keeping to the mainstream of popular opinion. Oh yes, the result may be bland, but the consensus between the major political parties has lasted already some four decades, and the stability of the Swiss economy and political system are second to none in consequence. It is left to the people to put forward initiatives that may deal with personal behaviour and morality... and the people always have the final say.

And so I conclude by disagreeing strongly with James Allan over the need for a written constitution, but principally because the vision he has is based exclusively on anti-democratic and therefore intrinsically illegitimate models. All his concerns are swept away when the only example of a truly legitimate, democratic constitution, that has been in existence for over 150 years, is considered, namely: the Swiss Federal Constitution. Its most recent revision was ratified by the people of Switzerland in 1999, by a referendum, of course.