Trump Claims He Can Overrule Constitution With Executive Order…

A report from the US:

Saying his latest executive order was legal due to an “underutilized but totally feasible workaround,” President Trump claimed Tuesday that he could overrule the U.S. Constitution by means of the relatively obscure “no one will stop me” loophole.

“My critics say a constitutional amendment or at least an act of Congress is necessary to end birthright citizenship, but what they don’t realize is that a seldom-evoked administrative guideline ensures I can do whatever I want, whenever I want, because zero people will stand in my way,” said Trump, adding that the largely unheard-of clause allows him to circumvent normal legal proceedings because it’s not like anyone in any branch of government remains effective enough to prevent him from doing so.

“Though few modern presidents have made use of it, this loophole has always given the nation’s chief executive unilateral power over the Constitution. Its provisions dictate that the president can sidestep any checks and balances on his power once he has abused his authority so many times that no one can keep track anymore.”

Trump added that while his opponents may try to challenge his executive order in court, the loophole also states that by then he will have achieved his immediate political aims.

Trump Claims He Can Overrule Constitution With Executive Order Because Of Little-Known ‘No One Will Stop Me’ Loophole is from Onion, but this isn’t:

President Donald Trump said on Wednesday the U.S. Constitution does not guarantee the right to citizenship to everyone born in the country, an assertion that runs counter to the long-established legal interpretation of the document.

“So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words ‘subject to the jurisdiction thereof.’ Many legal scholars agree…..” Trump wrote in a Twitter post six days before U.S. congressional elections.

The Constitution’s 14th Amendment, added after the Civil War, grants citizenship to anyone born on American soil and was intended to give constitutional protections to former slaves. But some Republicans, including Trump, say it creates an incentive for people to enter the country illegally to have children.

It can be hard to differentiate between satire and what Trump actually says.

Trump considering pulling US out of Constitution

New Yorker:

WASHINGTON (The Borowitz Report)—Calling it “maybe the worst deal ever,” Donald J. Trump said on Wednesday that he is considering pulling the United States out of the United States Constitution.

“I’ve seen a lot of bad deals in my life, but this Constitution is a total mess,” he said. “We need to tear it up and start over.”

Trump was scathing in his remarks about the two-hundred-and-twenty-nine-year-old document, singling out for special scorn its insistence on three branches of government. “The branches thing is maybe the worst part of this deal,” he said. “The first thing we do when we pull out of the Constitution is get rid of two of those branches.”

Vowing to replace the Constitution with “a new, much, much better Constitution,” he acknowledged that there might be some elements of the original document worth salvaging. “We’re going to keep the Second Amendment,” he said, “and definitely the Fifth.”

More: Trump Considering Pulling U.S. Out of Constitution

Australian constitution could be an ass

The third Australian MP to fall foul of their constitution on citizenship is deputy Prime Minister Barnaby Joyce, although he is contesting it in court without resigning like the other two.

RNZ: NZ govt says Australia’s Joyce is NZ citizen

New Zealand Internal Affairs Minister Peter Dunne has confirmed Australian Deputy Prime Minister Barnaby Joyce is considered a New Zealand citizen.

Mr Joyce is the latest politician to be caught in a dual citizenship controversy across the Tasman.

Several senators have resigned, or are facing scrutiny, over their citizenship status.

Under the Australian constitution, anyone with dual citizenship cannot stand for federal election.Mr Dunne said Mr Joyce’s father was a New Zealand citizen and he passed citizenship on to his son.

His father emigrated to New Zealand and became a citizen here, then moved to Australia and had a child (Barnaby) with an Australian woman. That automatically makes Barnaby a New Zealand citizen. There must be a lot of dual citizens in Australia.

“It’s automatically passed on, I don’t know whether he (Mr Joyce) knew or not,” Mr Dunne said.

“He says he didn’t know, he says he was under the belief his father had renounced the New Zealand citizenship.

“But the fact is it is all irrelevant – if he was eligible to receive the citizenship at the time, under our legislation he does, regardless of his subsequent circumstances,” Mr Dunne said.

Mr Joyce said this afternoon he was asking the High Court to rule on his citizenship status and whether he was eligible to be in Parliament, the ABC reported.

He said legal advice suggested he has not breached the constitution, but the court should consider the matter.

If Joyce is ruled ineligible to be an Australian elected representative then their constitution is an ass.

Section 44 of the Australian Constitution lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia.

44. Any person who –

(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or
(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
(iii.) Is an undischarged bankrupt or insolvent: or
(iv.) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

Almost every part of section 44 has proved difficult to interpret and apply. Its replacement or revision has been frequently considered, particularly by a Constitutional Commission in 1988 and by a parliamentary committee in 1997, but their proposals have not been pursued.

(i) Allegiance to a foreign power

Subsection 44(i) has generally been interpreted by the High Court of Australia as meaning that persons with dual citizenship are not permitted to stand for election and that a person must take “reasonable steps” to renounce their citizenship of the other country. Its interpretation has been difficult. There is the preliminary awkwardness that the Constitution itself does not require a member of the Parliament to be an Australian Citizen, although Constitution s 42 does require members to swear an oath or affirmation of allegiance to the monarch; however, Australian citizenship has been made a statutory condition of eligibility for election.

https://en.wikipedia.org/wiki/Section_44_of_the_Constitution_of_Australia

So this will go to court for a decision to see if Joyce can remain.

 

NZ First rules for candidates

A tweet on the expected announcement that Shane Jones will be standing for NZ First in Whangarei:

It actually doesn’t matter how long Jones has been in the party.

From the NZ First constitution:

44. Nomination of Candidates
(a) A member nominated as an Electorate candidate must have been a full and financial member for at least six months as at the date of nomination; and a member shall not be eligible for selection as a List candidate unless the member has been a full and financial member for at least six months.

But:

(b) The Board may in its discretion waive any of the requirements in the
preceding article 44(a)

So 44(a) is a pointless rule.

And it has been waived apparently:

 

Legitimacy of Turkish vote questioned

It’s not surprising to see doubts raised over the legitimacy of the Turkish vote that will give the Turkish president far greater powers in  a major change to the Turkish constitution. But given the actions of the President since the coup attempt I doubt the vote referendum will hold him back from taking power,

Newshub (Reuters): Legitimacy of Turkish vote questioned by European observers

The Turkish referendum that gives President Tayyip Erdogan sweeping new powers fell short of European standards, international observers say.

Turks on Sunday voted by a narrow 51.4 percent margin to change their constitution and grant Mr Erdogan extended powers. The main opposition party has demanded the result be nullified, saying the voting was marred by irregularities.

Turkish Prime Minister Binali Yildirim said on Monday that the people’s message was clear after a referendum and the vote had ended all arguments.

A narrow majority is not a clear message. It’s unusual to see a Prime Minister sounding so enthusiastic about a vote that strips his powers and hands them over to someone else.

The office of the Prime Minister will be abolished and replaced by an executive presidency

Restrictions on media outlets, arrests of journalists, inadequate legal framework and late changes in ballot counting were cited by the Parliamentary Assembly of the Council of Europe that monitored the vote.

Turkey’s High Electoral Board made a last-minute decision on Sunday to count ballots that had not been stamped by officials.

“Generally speaking the referendum fell short of CoE standards … it did not provide for a truly democratic process,” Cezar Florin Preda said.

It would be difficult to get close to ‘a truly democratic process’ given how many people have been arrested and how many media outlets have been shut down.

But the Turkish Government is defending the process.

Turkey’s foreign ministry meanwhile denounced election observers’ criticism that the referendum fell below international standards, saying their remarks lacked objectivity and impartiality.

“Saying the referendum fell below international standards is unacceptable,” the ministry said in a statement, adding that previous “politically charged” comments from OSCE monitors showed the team arrived in Turkey with prejudice and disregarded principles of objectivity and impartiality.

Both sides accuse each other of similar things. I doubt whether international criticism will hold President Erdogan back from taking more power.

The US State Department says it has taken note of the concerns and looks forward to a final report, suggesting it will withhold comment until a full assessment is completed.

I wonder what the State Department is doing about the mess the US democracy is in.

More details about the history, the changes and the process: Turkish constitutional referendum, 2017

 

 

 

‘Secret ballot’ by social media drip feed

It seems quite odd to me that what I thought was supposed to be selection of a Prime Minister and a deputy Prime Minister by secret ballot next Monday have instead been a procession of pronouncements through the week by social media.

I guess National MPs can do their selecting and their voting however they like, but does anyone know if they have ever selected their leaders so publicly before?

Who remembers how John Key’s selection as National leader and leader of the opposition in 2007?

This is all the National Party constitution says about leadership selection:

PARLIAMENTARY SECTION
Constitution

81.The Parliamentary Section of the Party shall consist of the members of the Party elected to the House of Representatives. Should at any time a member of the Parliamentary Section cease to be a member of the Party he or she shall cease to be a member of the Parliamentary Section. Leader

82.  (a) The Parliamentary Section shall appoint its Leader as soon as practicable after each General Election.

(b) If at any time the leadership of the Parliamentary Section falls vacant, the Parliamentary Section shall appoint a Leader to fill such vacancy. Notwithstanding Rule 82 (a), the Parliamentary Section may at any time between General Elections confirm or change its Leader.

(c) The Leader of the Parliamentary Section shall, upon receiving the approval of the Board, become the Leader of the Party. The Board shall consider such approval as soon as practicable after the appointment by the Parliamentary Section of its Leader.

Maybe the secret ballot idea is incorrect and the National caucus just selects it’s leaders however they feel like at the time.

From the Herald:

If no clear winner between Bennett and Bridges is found by Monday – when a caucus vote will be held – it is understood both candidates will give speeches to the party before a private ballot takes place.

Constitution promoted on earthquakes and Brexit

Geoffrey Palmer is pushing his case for a written constitution again, this time using earthquakes and Brexit as justification.

Stuff: New Zealand is one of three countries without a written constitution: time for change

A constitution could enshrine property rights, which were poorly protected in the red zone following the Christchurch earthquakes, writes Geoffrey Palmer.

OPINION: In our recently published book, A Constitution for Aotearoa New Zealand, Andrew Butler and I propose a written constitution for New Zealand.

New Zealand is one of only three countries without a written constitution.

That might be sort of correct. Most countries have single document constitutions. There are conflicting claims about exceptions. One Wikipedia page lists:

  • Codified (in a single document) most of the world constitutions
  • Uncodified (fully written in few documents) San Marino, Israel, Saudi Arabia
  • Uncodified (Partially unwritten) Canada, New Zealand, United Kingdom

To understand the principal rules of how public power is exercised in New Zealand you have to wade your way through a jumble of statutes – some from New Zealand, but quite a few very old ones from England; a plethora of obscure conventions, letters patent and manuals; and a raft of court decisions. How they all mesh together is obscure and unclear. 

We share this untidy approach to constitutional law with the UK. Anyone who thinks that that’s a situation worth preserving just needs to look at what’s happening over there at the moment.  Brexit has created a massive constitutional crisis. A significant factor is that the constitutional rules there are so unclear, no one knows who has the power to get the UK out of the EU.

In the UK it is more a crisis of confidence in government being dictated to by the European Union.

Ironically the European Union wrote a draft constitution that was signed by the 25 states that were members in 2004 and ratified by 18 of them, but French and Dutch voters rejected it in 2005.

This evolved into the Treaty of Lisbon that was ratified in 2009.

The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement which amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon was signed by the EU member states on 13 December 2007, and entered into force on 1 December 2009.

– Wikipedia:

BBC: Q&A: The Lisbon Treaty

The Lisbon Treaty became law on 1 December 2009, eight years after European leaders launched a process to make the EU “more democratic, more transparent and more efficient”.

Like the proposed European constitution before it, the treaty is often described as an attempt to streamline EU institutions to make the enlarged bloc of 27 states function better. But its opponents see it as part of a federalist agenda that threatens national sovereignty.

I don’t think the EU was known for efficiency, and it’s lack of democracy for member states  and threats to sovereignty, perceived or real, were significant factors in the Brexit debate and vote.

Back to Palmer:

“How is any of this constitutional stuff relevant to my life?” is a question we are often asked. Cantabrians know the answer. It’s when the chips are down and there is a crisis in place, that the dangers of short-term politics can overpower longstanding rights and principles. Not because those rights and principles shouldn’t apply, but because the political imperative is to be seen to do something and do something radical and urgent. The rights of individuals can get lost.

In its recently released report “Staying in the Red Zones”, the Human Rights Commission calmly and coolly assessed the Government’s treatment of homeowners in the red zone. The report concluded: “The right to property is fragile in New Zealand. Property rights need to be better enshrined in the New Zealand Bill of Rights Act”.

But I haven’t seem much sign of Cantabrians, nor the rest of New Zealanders, clamouring for a written constitution.

The latest earthquakes north of Christchurch (Culverden, Kaikoura, Seddon and Wellington) and the lengthy sorting out of the problems created by them are more likely to distract from rather than drive people to setting up a constitution.

The earthquakes have broken a lot of things. These need fixing.

New Zealand’s lack of a single written constitution (the Treaty of Waitangi is sometimes referred to as a constitution but it is far from comprehensive) seems for most people to be in the ‘if it ain’t broke why fix it?’ category.

And there are fears that trying to debate and formulate a constitution will create seismic fractures in our society.

Constitutional Advisory Panel: A Written Constitution

The Panel recommends the Government:

  • notes that although there is no broad support for a supreme constitution, there is considerable support for entrenching elements of the constitution
  • notes the consensus that our constitution should be more easily accessible and understood, and notes that one way of accomplishing this might be to assemble our constitutional protections into a single statute
  • notes people need more information before considering whether there should be change, in particular information about the various kinds of constitution, written and otherwise, and their respective advantages and disadvantages
  • supports the continued conversation by providing such information, and notes that it may be desirable to set up a process whereby an independent group is charged with compiling such information and advancing public understanding

Palmer’s project: A Constitution for Aotearoa New Zealand

Our proposal: a modern constitution that is easy to understand, reflects New Zealand’s identity and nationhood, protects rights and liberties, and prevents governments from abusing power.

The United States of America, with a famous constitution, is struggling with all of those things right now in the aftermath of a very divisive democratic election, during the transition to power of president-elect Donald Trump.

Written and unwritten constitutions

Debate over whether New Zealand should establish a written constitution continues, with Hamilton lawyer Thomas Gibbons having a say in NZ Herald: Written constitution unwanted and unwarranted

Sir Geoffrey Palmer and a fellow lawyer, Andrew Butler, have proposed a single written constitution, arguing that almost every other nation has a single written constitution, and – more importantly for these purposes – that such a document would be more accessible and enhance the public’s understanding of constitutional matters.

On this ground, the proposal is disingenuous. Even nations with an established single document called a “constitution” have a broader edifice of constitutional law. US constitutional scholars have come to talk of their own “unwritten” constitution.

They talk of a “thin” and a “thick” constitution: the latter being the full document, the former the part the public understands, which includes the Bill of Rights, and sometimes the Declaration of Independence, which is not part of the US constitution at all.

The reality of a written constitution:

Over the past 50 years, the US Supreme Court has invoked the US constitution in ruling on the legitimacy of abortion, the death penalty, affirmative action, political campaign donations, and various other matters.

They are not expressly covered by the constitution’s text. Rather, general constitutional provisions describing such matters of freedom of speech and cruel and unusual punishment are applied to specific situations. Constitutional questions are not resolved in an ether.

A constitution is a guide rather than a definition of everything.

If Palmer and Butler’s main goal is accessibility, and public understanding of the constitution, they could as usefully advocate for more teaching of civics in schools (something Palmer has suggested elsewhere, in law review articles), they could disseminate media on constitutional issues (something Palmer has done elsewhere, via National Radio), or they could publish a new book.

They have just published a book on establishing a written constitution, which has prompted this debate.

What they don’t need to do is promote a New Zealand Constitution in the sense of a single written document of four, 40, or 400 pages.

The can do that if they like. Promoting discussion on important issues is useful.

It won’t make our constitutional law more accessible. It might even expand the unwritten constitution, through cases interpreting this new document.

Some of us quite like a system that means issues like abortion, the death penalty, affirmative action, political campaign donations, and yes, even gun rights, can be decided by an elected Parliament, not unelected judges.

Elected Members of parliament versus unelected judges is an important point, probably the most critical consideration.

There is a lot of contentious debate in the US about the appointment of Supreme Court judges who get to decide on issues of major importance to the country.

The irony is that in suggesting something that is unwanted and unwarranted, Palmer and Butler are drawing public attention to the benefits of our current constitutional arrangements.

They have drawn attention to the options, which is a good thing in an open democracy.

Our current constitutional arrangements aren’t ideal, especially for a supposedly independent nation still linked to the monarchy of another country. But despite it’s imperfections it works fairly well.

It will be difficult to get popular support for a change to a written constitution. We couldn’t even engage in a sensible and civil debate over a flag change.

The Treaty of Waitangi and a New Zealand constitution would have to be inextricably linked.

I think avoidance of that debate along with apathy will mean nothing much will change constitution-wise in the foreseeable future.

Palmer and Butler answer constitution critic

Sir Geoffrey Palmer and Andrew Butler have written a book A Constitution for Aotearoa New Zealand which proposes a constitution.

In response Dr Noel Cox  a barrister who has been a professor of law, wrote New Zealand doesn’t need a written constitution.

Two principal difficulties immediately come to mind. The first is the question of a written entrenched constitution (one changeable only by a special process), and the second is the (not unrelated) issue of the Treaty of Waitangi.

It might be worthwhile looking at solutions within the existing structures, rather than to call for the codification and entrenchment of the constitution.

Unless they are prepared to wrestle with large issues, most contentious of which is the Treaty of Waitangi, or entrenchment, proponents of constitutional reform should tread warily.

Palmer and Butler have addressed this in Simplified constitution critical for future.

His first point assumes that a written, codified constitution cannot be flexible. We disagree. New Zealand does not need a constitution etched in stone. It needs one with the capacity of being changed either by a referendum of the people or by a special majority of 75 per cent of the members of Parliament.

This is precisely the current position in fundamental elements of the electoral system, guaranteed by section 268 of the Electoral Act 1993; it has been in place in previous legislation since 1956.

We recognise the need to keep the constitution up to date; that’s why we propose it be formally reviewed every 10 years.

Unless our constitutional machinery is kept in good order, it will deteriorate and that is what is happening to it now.

The prime danger with New Zealand’s constitution is that it can be changed at any time with a majority of one in the House of Representatives. That means that anything goes. There are no constitutional restraints except elections.

In theory ‘anything goes’ I guess, but in practice I don’t think anything like that has happened. It could in theory, but so could many things that necessarily be protected by a bit of law or a constitution.

New Zealand is a more stable democracy than many countries who have had constitutions  have been.

The US constitution  hasn’t avoided a debacle of a election that will result in a very unpopular and flawed president.

Of what does the New Zealand constitution consist? The most recent scholarly answer, not from us, is that the New Zealand constitution is located in 45 Acts of Parliament, including six passed in England, 12 international treaties, nine areas of common law, eight constitutional conventions, three-and-a-half executive instruments, one prerogative instrument, one legislative instrument and half a judicial instrument.

How many New Zealanders can find that material let alone understand it?

How many New Zealanders care? How many New Zealanders would take any notice of a simplified constitution?

Far from being unmanageable, as Cox opines, drafting a written constitution once the Crown is removed makes things much more orderly, understandable, less mysterious and more rational.

Do we want our key laws determined by ‘more rational’ judges rather than by our parliament?

We need to know who has what powers and how they must be exercised.

We should know this, or we should be able to easily find out if anything contentious comes up.

We believe that New Zealanders would welcome the opportunity to sort out where they stand and what they stand for. Based on the huge volume of submissions it received and the many public hearings it held, the Government’s own Constitutional Review Panel in 2013 noted “a consensus that our constitution should be more easily accessible and understood”, and also noted that “one way of accomplishing this might be to assemble our constitutional protections into a single statute”.

I believe that the vast majority of New Zealanders will care little or not at all about this.

A muddled and confused approach is unlikely to be sufficient for the challenges New Zealand will encounter in the future.

Clarity and simplicity are great aims but I’m not sure what constitutional challenges we face. Actually I have no idea.

What is needed is a constitution that sets out the rules, principles and processes about government in one document so they are accessible, available and clear.

We need to eliminate the need for significant unwritten constitutional conventions and customs which are unclear in important respects.

We need greater force in the protections given by our Bill of Rights.

We should at least talk about it and consider options.

Our proposed constitution aims to provide an accurate map about how we govern ourselves. We have already had helpful feedback on what we propose; we seek your views at www.constitutionaotearoa.org.nz.

Submissions seem to disappear into the website at this stage, I presume there will be some publication at some stage.

There is some activity on their Facebook and Twitter links, but the ‘conversation’ doesn’t seem to have ignited the masses yet.

 

 

A constitution for Aotearoa New Zealand?

Establishing a constitution, no longer having the Queen as the head of state, locking in a four-year election cycle, and enshrining the Treaty of Waitangi are all proposed in book by Sir Geoffrey Palmer and  Andrew Butler that will be launched next week.

There is already a website set up: A CONSTITUTION FOR AOTEAROA NEW ZEALAND

Our proposal: a modern constitution that is easy to understand, reflects New Zealand’s identity and nationhood, protects rights and liberties, and prevents governments from abusing power.

NZH: Do we need a Queen anymore?

The short answer to that headline is no we don’t need a queen from the other side of the world who never comes here any more. The key questions are:

  • When will a majority of New Zealanders not want our country to be a monarchy?
  • When will our politicians give us the opportunity to become an independent country?

But the book is about a lot more than that. It aims to start ‘a conversation’ about important issues regarding the future of New Zealand.

Along with fellow lawyer Andrew Butler, Palmeris about to release A Constitution for Aotearoa New Zealand, a book that explains – in a surprisingly easy to understand manner – why New Zealand needs a written constitution and what a first draft of that constitution entails.

It has what some would call emotive elements – ditching the Queen as the head of state, locking in a four-year election cycle, enshrining the Treaty of Waitangi – but at its heart is a fierce commitment to both protecting the rights of all New Zealanders and ensuring we all, politicians especially, know and understand the rules by which we run this little club called New Zealand.

Constitution Aotearoa might sound eye-rollingly dry but the fact is New Zealand’s current constitution is, frankly, a mess

Because we have not had any major issues with being tied to the British monarchy and with not having a constitution politicians and many people have preferred to defer to the status quo.

Some people strongly believe in the monarchy being attached to New Zealand, others see that doing nothing is the easiest or cheapest option.

“In a democracy you ought to know what your rights and responsibilities are and you ought to know how the system of government works, you ought to know what the rules are,” Palmer says. “In New Zealand you can’t find out because the constitution is all over the place, it’s inaccessible.

“What you want is a document that sets out who the head of state is and what the head of state does, what the Parliament is, how it’s elected and what it can do and what the judiciary can do.

Sounds like a sensible tidy up but it is likely to be highly contentious.

Bizarrely, New Zealand is one of the few countries in the world (alongside Britain and Israel) that doesn’t have a written constitution. The fact we don’t have a clear set of rules to follow, or any of the checks and balances inherent in a written constitution, means our politicians can do whatever they like as long as they get a majority in the house.

Great Britain at least has the House of Lords to act as a checkpoint for legislation while Israel has 11 basic laws that set out how the country should be governed.

Without those rudimentary measures, New Zealand is open to a worst case scenario where one powerful person could influence Cabinet, which in turn controls Parliament, which enacts laws the courts cannot overturn … if you think it sounds like a dictatorship you’re not far wrong.

Those who call John Key a dictator will feel vindicated.

The potential for that dictatorship has been muted by MMP but “New Zealand is still very friendly to executive power”, Palmer says, meaning Cabinet can turn anything it fancies into law.

“There are considerable dangers in that,” he adds. “Parliament can easily be dominated by the governing party, and Parliament will do what the governing party wants. The system we call parliamentary sovereignty, which means Parliament can do whatever it wants, becomes, in New Zealand, that the executive [Cabinet] can do whatever it likes.”

Most of our Cabinets have been reasonably responsible, but many will remember Rob Muldoon’s increasingly messy attempts to mould the economy and country by his dictat – the country ended up teetering on the brink of going broke.

And some on the left still wail about the reforms of Roger Douglas and the Lange led Labour government that supposedly imposed a neo-liberal disaster.

Head of State

Palmer believes it’s inevitable New Zealand will become a republic – in fact, he argues that we are already a “de facto” republic in as much as the Queen doesn’t exercise any power here. What power she does have, the so-called royal prerogative, is described as “shadowy”, “murky” and so poorly defined it may as well be abolished.

Palmer rules out an elected president, saying it’s too contrary to our national personality and character. He rules out the Prime Minister taking on the largely ceremonial role as he or she is overburdened as it is.

In the end, Constitution Aotearoa lands on an updated variant of the Governor-General, appointed by Parliament for a term of five years. A public vote on the Head of State is rejected for the simple reason there would be no power invested in the role. Plus, he adds, if the public voted for a head of state it risks becoming a political process.

The Royal Family, as a result, would remain “popular celebrities” and New Zealand could send a message to the world – and to ourselves – that we are a mature and independent nation, but one that stays within the Commonwealth, maintaining our historical links to Britain.

I agree that a powerless figurehead should be appointed by Government rather than voted on.

I shudder to think how bad the bitching would become if we had a chance to vote for John Key or Helen Clark as head of state, the petty bitterness against both is entrenched.

Treaty of Waitangi

Constitution Aotearoa has the Treaty of Waitangi unambiguously at its heart. In fact, Palmer, argues, it is effectively New Zealand’s first constitutional document and the Government’s “moral and political claim to democratic legitimacy rests of the Treaty”.

By its nature as a founding document and in the way it is now interwoven in modern society, the Treaty is integral to New Zealand’s current (unwritten) constitution. But like that complex and confusing constitution in the clouds, the Treaty itself is shrouded in uncertainty and “jagged legal recognition”. In other words, it has no independent legal status.

Palmer wants to give the Treaty “clear and certain” status.

A Supreme Court, acting under the new constitution, would also bring thoughtful analysis of how the Treaty works in modern New Zealand, ending the current “ungainly, unclear and untidy” legal treatment of the Treaty.

How we treat the  Treaty is also certain to be highly contentious but the reality is we have the Treaty of Waitangi and need to work out how to deal with it sensibly and fairly.

Constitution Aotearoa will officially be released at Parliament on Wednesday and has a complementary website where Kiwis can make submissions. Palmer says the book and website should be seen as the “start of a conversation”.

Once the submissions have been taken, he and Butler will write a revised version. After that it would be up to government to take hold of the issue. Palmer’s hope is that within five years New Zealanders will be voting in a referendum on whether to adopt Constitution Aotearoa.

“New Zealand is relatively well governed compared with a lot of countries but it could be a lot better.”

A Constitution for Aotearoa New Zealand, by Geoffrey Palmer and Andrew Butler, Victoria University Press. Available September 21. $25.

www.constitutionaotearoa.org.nz

The proposed Constitution: the full text

I’d like Your NZ to be a part of the conversation. Whether we end up changing anything or not we should seriously talk about it.