1.0
1.0 AGENDA: 11/08/2005
1.1 OBJECTIVE:
1.1.1 Create through inclusive and open discussion a draft democratic republican constitution for Aotearoa/New Zealand.
1.2 FORMAT:
1.2.1 Online through this blog. Suggestions put up, comments encouraged, consensus worked towards by moderator/chair.
1.2.2 To ensure that ideas rather than personalities are discussed all comments must be made anonymously. Any comments made un-anon. will be deleted.
1.2.3 Brevity and clarity to be preferred.
1.3 TIMELINE:
1.3.1 First round of discussion points, ie this agenda (1.0) to be decided by 31 August 2005.
1.3.2 Final text on the draft constitution to be decided on 5 February 2006 and publicly released on Waitangi Day.
1.3.3 A Waitangi round of whatever nature to follow.
1.4 DISCUSSION:
1.4.1 Preamble to the constitution discussed as a separate issue.
1.4.2 Ten other key issues of priority for discussion to be established.
Eg.
1.Means by which current constitution can be reformed.
2. Scope of new constitution
3. Treaty of Waitangi.
4. Human rights.
5. Judiciary and Supreme Court
6. Head of State
7. Executive Government
8. Legislature
9. (De)centralisation
10. Citizenship (rights and duties)
11. Foreign relations/defence
12. Land (environment/ownership/use)
13. Commerce/Finance/Trade
1.1 OBJECTIVE:
1.1.1 Create through inclusive and open discussion a draft democratic republican constitution for Aotearoa/New Zealand.
1.2 FORMAT:
1.2.1 Online through this blog. Suggestions put up, comments encouraged, consensus worked towards by moderator/chair.
1.2.2 To ensure that ideas rather than personalities are discussed all comments must be made anonymously. Any comments made un-anon. will be deleted.
1.2.3 Brevity and clarity to be preferred.
1.3 TIMELINE:
1.3.1 First round of discussion points, ie this agenda (1.0) to be decided by 31 August 2005.
1.3.2 Final text on the draft constitution to be decided on 5 February 2006 and publicly released on Waitangi Day.
1.3.3 A Waitangi round of whatever nature to follow.
1.4 DISCUSSION:
1.4.1 Preamble to the constitution discussed as a separate issue.
1.4.2 Ten other key issues of priority for discussion to be established.
Eg.
1.Means by which current constitution can be reformed.
2. Scope of new constitution
3. Treaty of Waitangi.
4. Human rights.
5. Judiciary and Supreme Court
6. Head of State
7. Executive Government
8. Legislature
9. (De)centralisation
10. Citizenship (rights and duties)
11. Foreign relations/defence
12. Land (environment/ownership/use)
13. Commerce/Finance/Trade
posted by Bomber | 12:22 AM
27 Comments:
Only citizens to own land - no foreign land sales.
Join the Commonwealth of Australia and use their constitution.
You need to link to the BORA in the "NZ Crown" section of the links.
As for the agenda, how ambitious do we want to be in the pursuit of a republic? The simplest version would be to codify the reserve powers, then pencil out the monarch and replace them with either an elected figurehead president or the Speaker of the House (the Swedish model), with everything else continuing as it is.
Will make a link to BORA (Bill of Rights Act) soon.
Agenda is open-ended. Codification without changing anything seems pointless in this forum.
What would you leave in or out or change if you could? What is the most important thing to get right that isn't right at the moment? What should the priorities be?
Enshrine one standard of citizenship, nullify Treaty of Waitangi. Abolish Maori seats.
The first step should be the mechanism by which the constitution can be modified. That colours every other provision and will be crucial in deciding whether the whole thing works at all.
The U.S. Constitution is hard to change and this has prevented all manner of silly amendments from getting off the ground. We need to prevent this too. If we make it too easy to change, then the rest of the initial content will hardly matter.
However, the U.S. Constitution has achieved popular buy-in, in large part, because of its history of success. We will not have the advantage of that. A new constitution will risk a low level of acceptance and respect if it is seen as imposed from on high, graven in stone, and taking away democratic powers.
I'm sceptical that this problem can be overcome at all. It will have to be a very delicate balancing act.
- The president must be elected by the people - we don't want a repeat of the Aussie fiasco.
I would suggest a 6 year non-renewable term, elections held with every 2nd local body vote using STV ( I know - but it's better than getting someone elected with 22% in a crowded field or having runoff elections).
- MPs will have to have been out of parliament one full term before being eligible (a signal that the position should be de-politicised).
- President to have the power to appoint the PM, dissolve the parliament, approve supreme court judges and send legislation back for reconsideration by parliament.
The constitution needs checks and balances in a nation that has not them.
I'd suggest changes to the constitution should require the consent of the Supreme Court, a super-majority of Parliament (say 67%) and a stand alone referendum with a simple majority AND a minimum 50% turnout
We need to look at the our size of population
as it seems that often things can get rather chummy at the top.
Maybe we need an outsider on the Supreme Court.
Maybe we need to look at the system of ratifaction of appointments. The senate hearings in the US could be some type of model.
A Constitution would need to be drafted in such away that if was both robust and flexible so that it was almost like a living document that can be as relavent to today as it will be in 50 to 100 years.
A long side of the Bill of Rights we need a Bill of Responsibilities.
Whether codification without changing anything is pointless depends on how satisfied you are with the rest of our constitution (the parts not relating to the head of state). It also depends whether agreement can be reached. It may be easier to simply write out the monarchy, but rather change anything else, come up with a menu of alternatives and pursue them as public opinion suits.
This would also have the advantage of getting more people talking.
There could be two streams here:
Minimal: write out Monarchy and replace with non-hereditary person.
Extensive: Minimal plus all the more "controversial" issues. If so what are those issues?
Do we need a separate post under which we can offer preamble ideas and texts?
I'd suggest the following staged approach:
- codify our existing arrangements in one piece of entrenched basic law
- change all legal references to "the Crown" to "the Government and People of New Zealand" - which is what it means in effect.
- remove the remaining reserve and ceremonial powers of the governor general
- consider, when people feel the time is ripe, becoming a republic
Another point regarding "duties" of citizenship.
In a country governed by laws, the duty of anyone, whether a citizen or a day-tripper, is to obey the law (or face sanction). There are *no* other duties.
To demand that people sign up to some sort of "NZ cultural identity" is wrong and undemocratic. One is perfectly entitled to believe that the country would be better as a theocratic dictatorship - provided one does not use violence to advance the idea.
No president with any authority.
the idea of simply enshrining the power the GG already has in another figurehead could work well.
another public offical drawing a six-figure salary, with 7-figure expenses is a waste of public money.
Re: 'The Crown', a good title might be 'the Nation' instead of 'the People'.
Re: Format. what about putting up a series of posts on subjects within the constitutional framework? people could then comment on the individual area.
How will all this affect Cook Islands and Niue? Will they be forced into full independence and their own citizenship? Should they be consulted?
Codification project will be established via this page's side bar with a list of links. Links to legislation not on it's own website will be to the legislation.govt page where the full name can be put in their search.
Even if people want to exclude the BORA, Treaty of Waitangi, international Treaties, court rulings, common law etc. anyone wishing to codify would have to argue it in the first place, as with everything else. So as comments come in to suggest statutes (or concepts contained in certain statutes) or any other document or declaration that should be in a constitution they will be added to that list.
So far we have these possible areas as individual posts:
Codification (of the existing, current and historic documents we wish to discuss)
Preamble (for any new constitution)
Timetable (for a staged implementation of any constitutional reform)
Head of State (election/appointment, powers, qualification etc.)
Rights (of people/citizens, individuals, groups?)
These subject discussions will take place simultaneously rather than waiting on the codification process. I thought we could cope with about 10 at a time. Maybe, maybe not? Any more suggested items?
Join the Commonwealth of Australia and use their constitution.
We'd still need our own state constitution regardless, so even if this option is pursued there is still a great deal to debate.
Hi Tim,
Good project, and good links.
I've been a fan of a constitution for some time, and the Libertarianz and I have written a draft document outlining the sort of constitution that we suggest would permanently protect our liberties. (Most of my comments here come from this post at my blog. Feel free to link it if you wish.)
Why is a constitution needed? Government in essence is like a guard dog: it is there to protect us from being done over by others. However, if that dog is badly trained and it gets off the chain, we can be badly savaged -- more than we would have been without the dog.
A constitution is our means of chaining up the government and training it to act only in our protection.
As I’ve said already elsewhere, the task of government is to protect us against physical coercion and its derivative, fraud. Good government is the means by which retaliatory force is brought under objective control. A good constitution, properly written, brings the government itself under objective control.
Such a constitution was the intent of
America’s Founding Fathers, but after nearly two-hundred years the success has been only partial. Building on the success of the US Constitution and seeking to close the loopholes exploited since its introduction, New Zealand libertarians have written a Constitution for New Freeland which sums up what we think a constitution should look like, and why.
**The Crucial thing within any democratic system is that majority rule is limited; that important things are put beyond the vote, specifically the thing our government is sworn to protect: our rights. Such things should be in a ‘Bill of Rights’, and those rights clearly enumerated are what the government should be constituted to protect. You can see our proposed Bill of Rights here.
**The job of government is to protect its citizens, not to infringe the liberties of its own citizens, except without due process of law – a ‘Bill of Due Process’ clearly outlines under what circumstances and in what manner those liberties may be breached, and for what specifically limited purpose.
**The US Constitution has suffered from interpretations that have often been at odds with the declared intentions of the Constitution’s authors – the Constitution for New Freeland puts the intentions of its authors on the record in the ‘Notes on the Bills of Rights and Due Process.’
Every good constitution relies on two further important restraints on the growth of Omnipotent Government:
1) significant public understanding and support for the constitution and its protections, without which politicians and advocates of a ‘living constitution’ can pervert the constitutional protections as easily as the simple agreements given in the Treaty of Waitangi have been perverted;
2) government’s powers are separated, so that each of government’s three branches – legislature, judiciary and executive -- has some specified veto power over the others. The imperfect separation of powers in our present NZ constitutional arrangements shows the dangers of being without these essential checks and balances on political power.
The task of constitutional law is to delineate the legal structure of a country’s law; it must therefore be superior to all other laws, and law stepping outside the bounds of what is declared unconstitutional must be able to be struck down – an accessible Constitutional Court makes this possible.
The superiority of a constitution to all other law is both a good thing and a bad thing. What’s good is that once a watertight constitution properly protecting individual rights is in place, it acts to chain up the guard dog and to keep it on its leash for good. What’s bad is that once in place, a poor or anti-freedom constitution is very difficult to get rid of.
As history demonstrates -- and the constitutional conference of 2000 and the current Select Committee review of NZ’s constitutional arrangements foreshadow – a bad constitution poorly written can give the erstwhile guard dog control of the back yard and the house, and rather than protecting us it then has no impediment to doing us over.
Liberty, as Thomas Jefferson suggested, requires eternal vigilance.
I commend you for your project. :-)
While the Libertarian's draft should be assessed on its own merits for pillagable material, I think it would be a mistake to tie the constitutional project to their ideology. New Zealanders are not Libertarians, and are unlikely to support a document which simply imposes that ideology upon them.
Comments should be anonymous. But, given the overt Libertarianz content, I will not re-draft the above comment by PC and re-post it as anon. as it is quite obvious who the author is. Please let this be the only exception that must be made. The comment immediately below it already starts getting into overt political partisan criticism - something that should be avioded. I hope now that people appreciate why comments should be anon.
Having said that the ideas and links within deserve a perusal.
There are a couple of other efforts at a constitution people might also want to look at. The first is from the Constitutional Society for the Promotion of Economic Freedom and Justice in New Zealand, and was presented in 1961; a copy can be found in Cleveland and Robinson (eds) Readings in New Zealand Government, or possibly in your local academic library. The second is from Dr D E Paterson and was written for the New Zealand Section of the International Commission of Jurists in 1977; unfortunately I don't know where it can be found, but it seems to have followed a similar course to that taken by the Constitution Act 1977 in codifying existing structures.
31st deadline is close upon us. Propose:
1. To establish a separate codification forum to focus on that issue including legislative entrenchment issues.
2. To keep this site to explore a more radical/idealist pursuit and see where we end up.
Need some seconders.
Also need some input re:
Efficacy of 5 Feb 2006 as "final" draft deadline.
Any problems with any of the 1.0 agenda so far?
When should the next agenda deadline be?
I notice that most comments about others' constitutions quote those in English speaking countries only.
In AotearoaNZ, we often miss learning from very successful, peaceful and well balanced democracies ... in Europe for example) because of our lack of language skills.
I'd feel much more comfortable if we spread the net wide and studied those countries that have peaceful inclusive attitudes for all their citizens and the world in general, rather than Australia or the USA (both of whom bully, rush off to war at the drop of a hat, and marginalze groups of their own citizens.)
MMP we copied from the Germans ... Scandanavian countries manage to remain peaceful and cooperative in a crazy world ... The Netherlands etc etc. What do the Canadians have ...
etc etc
There are challenging times ahead in the World ...
It was my thought that the treaty, by its nature, requires division based on inheritance (sometimes confused with race), and this division cannot be ignored constitutionally without the agreement of the Maori.
Some principles follow from this--
The Maori have an equal voice in this process.
The Maori have a veto over the result of this process.
Any Constitution that purports to replace the treaty will have to provide for equal status in government of the Maori. Not equality of individual Maori with individual Pakeha. The advantage of replacing the Treaty is one of clarity and reduction of litigation. Otherwise simply having an effective Maori party and the treaty would be adequate.
Here's my thought, and it is only a thought.
Establish a dual-parliament. Full parallel governing structures. Maori to determine the underlying means of selecting representatives to their parliament, selecting their PM, and cope with the internal politics of many tribes speaking with one voice. That is essentially what they would be "giving up" in order to do this. The "many voices" would become one. Laws would be passed by agreement of BOTH parliaments. That this would throw difficulties in the process of creating law is unquestionable, but it appears unavoidable. The current process of creating laws and then having them challenged in court is less than ideal. The dual-parliament fully supercedes the treaty. Libertarians may take solace in the fact that such a structure should pretty well paralyze the government unless an issue is important or so clear that both parliaments agree.
The courts system however, would be singular. One law for everyone.
This would I think, create a situation in which each party to the original treaty receives a fair hearing and no law can be brought forth that unfairly treats either Pakeha or Maori.
The alternative of a dual-monarchy also occurred to me :-) I realized at that point that it was time to stop.
Just my $0.02
Perhaps the Treaty could be another forum to be discussed individually along with the Preamble?
If no one has any objections to my proposed courses of action I will incorporate that into the new agenda and establish whatever new fora need establishing at that point.
Am awaiting a reply from potential moderator for a separate codification site. Will post new Agenda after that.
Does anyone else wish to host a site as part of the convention which would be a forum where specific items can be discussed with a unified timeline? Eg. preamble. If so put in comments section (anon. rule not applicable!).
Who knows where to download XRumer 5.0 Palladium?
Help, please. All recommend this program to effectively advertise on the Internet, this is the best program!
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