On 12 November, exactly 7 days after our country's most widely celebrated anniversary of matters constitutional (the defeat of Catholic treason over 400 years ago) Wellington will have yet another hui trying to ignite contemporary constitutional debate. The Constitution Question, How the Crown, the Treaty, and MMP could change our lives will be addressed by Pita Sharples, Bill English doing his duty and lots of others giving us their ten cents worth (in this case it will be ten minutes, because the organisers are adopting a TED talks format).
My firm works at the coal face of constitutional law issues. We're keeping an eye on the processes of the Burrows Committee But we did not put in a submission to that "advisory panel", Nor do I currently plan to attend the post-Guy Fawkes day hui. I admire the well-meaning Rotarians who've organised it, but it is unlikely to be a good use of a precious half day.
I see more risk than merit in these processes. They stir up expectations of undeliverable constitutional change. They result in grand schemes for transformation when nearly all experience says that case by case evolution is better targetted, more likely, and less risky.
Bluntly, the government was obliged to appoint the Constitutional Advisory Panel under its arrangements with the Maori Party, but that is no reason to fan fitful fireworks into a blaze. There are many issues for New Zealanders to debate that affect whether our boat will go faster or slower. Constitutional changes will touch virtually none of them.
Elite sponsored constitutional change rarely produces consensus value except in the exhausted aftermath of civil conflict, or in the presence of a uniting external enemy. In both cases the politically active in the community are conscious of what they share with each other, despite differences, and they focus on the key rules of the game on which there must be agreement – the bottom lines of process and universal values.
In the absence of such centripetal pressures, conscious clean slate constitutional change becomes a grab by competing insiders to entrench their fashionable prejudices and privileges beyond reach of the ordinary dynamics of democracy. People often want exemption from having to obtain or to sustain a majority consensus in favour of their pet demands. Often those who seek constitutional entrenchment despise the practical commonsense conservatism of the people. They hate the mockery of voters. They want more constitutional prescription so that they can use lawyers to enforce their values, knowing that they are not sufficiently widely or deeply shared to survive in ordinary democratic competition.
Some constitutional guarantees against majority oppression we can all support, like the right to free speech, even if it offends, the right to vote out those in power, the right impartial justice and so forth. But they are few. No constitution deals with them as well and as economically as the US constitution, even if we do not share the same view of that constitution's suspicion of effective government.
If the foregoing is too opaque, I'm saying“ if it aint broke, don’t fix it”. A more apt expansion of the analogy might be “ Even if it sounds broke but is still working, don’t pull it to bits if the only mechanics have no idea how it was put together, even less knowledge of the underlying principles, and there are lots of bystanders hanging around with nothing to do but steal bits, or to put on valves and taps designed only to allow them to siphon off the fuel, or to take first dibs at the output”.
The overall constitutional change campaign is not a sensible use of the good-will and time of New Zealanders,
On the other hand, countless refinements with constitutional effect should be absorbing the energy of the well-meaning Rotarians. Lets start, for example with remedying the loss in the quality and incorruptibility of our local authority elections, evidenced in the postal voting shambles.