2 August 2017

[REPOST] Why democracy doesn’t work on its own

As New Zealanders, we regularly celebrate our commitment to democracy. It has rightly been described as the underlying principle of our system of government. We’re pretty proud of our democratic history and some of the civic innovations we’ve brought to our small democracy in the South Pacific.

And, in less than eight weeks, New Zealanders will engage in the most symbolic democratic act. Casting a vote in our general election is a profound ritual that reminds us, as citizens, of our place and influence in the affairs of the state.

Yet democracy as a civic phenomenon can’t operate by itself. The business of governance is vast, complex and never static. The operation of the state needs to be carefully supported by structures to ensure it remains faithful to its democratic pedigree.

And that’s where our constitution comes in.

Yes, contrary to some myths, we have one. And a pretty good one too.

True, unlike in most countries, our constitution is unwritten, in the sense that we do not have one single, sacred constitutional instrument and the courts actively policing it by striking down legislation. But that is not to say we don’t have a rich set of constitutional rules and norms that do the essential work of a constitution: empowering and constraining government.

There’s the Constitution Act 1986, which provides a basic—but incomplete—sketch of the system. Other important pieces of legislation fill many of those gaps. An instrument like the New Zealand Bill of Rights Act 1990 would elsewhere probably be found in a nation’s constitutional document. So too would key parts of the Electoral Act, State Sector Act, Public Finance Act and other legislation regulating our branches of government. In a few instances, we have to look back to our British heritage for some statutes regulating institutions we have borrowed from abroad.

And, beyond formal rules, there’s also an understanding on the part of the governors that they should do the right thing — some sort of sense of civic virtue or collective conscience.

But, like in any home or habitation, we must be vigilant about making sure it’s still fit for purpose.

Formal government-led reviews of our constitutional arrangements have sadly tended to fall flat after long-running processes. Thankfully, Sir Geoffrey Palmer and Dr Andrew Butler’s recent initiative advocating a codified, supreme written constitution has injected something fresh into the mix. And Matike Mai Aotearoa, the Independent Iwi Working Group on Constitutional Transformation, has consulted widely with iwi and hapÅ« to generate alternative models of constitutional governance. These are important proposals that deserve our attention, engagement and response.

But it may also pay to pause and reflect before we embark on any constitutional renovation. Are we asking the right questions? Constitutions necessarily reflect the style of democratic society we want and how we think it’s best to keep our governors honest — things on which there are legitimate different viewpoints.

Do we want a lawyer’s constitution, with judges as active guardians of rightness? Or do we have more faith in the dynamics of the political—and ultimately electoral—process to ensure our governors stay on the right track? Do we want a constitution that seeks to bring substantive solutions to the problems of the day? Or do we prefer a framework that promotes dialogue, collaboration and inventiveness? Where should the locus of power be situated within our system of government — what’s the best balance between Parliament, the executive and the courts? What role for people in their communities — in neighbourhoods, on marae, in social networks?

Do we want an expressive constitution that seeks to manifest a certain set of values? Or are we content with our current understated and patchwork style of civic identity? And who is the audience(s) for our constitution and who should it speak to? Is a detailed, entrenched constitution the solution to civic literacy and public participation in society? Or is it more important that the constitutional players themselves know the rules of the game? How else might we cultivate community-mindedness?

All important questions. And questions that deserve ongoing discussion, not just among the legal and political elite. If we care about democracy, we also need to care about the structures that curate it — those structures frame how our society confronts the problems of today and tomorrow. Ongoing conservation, and sometimes renovation, is essential.

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This opinion piece was first posted on Newsroom:

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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