constitutional law - short essay

8/3/2019 Constitutional Law - Short Essay

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Assignment 1

Short Essay

Student ID: 1140584

Paper: Constitutional Law

Paper code: LAWS107-10Y (HAM)

Stream: Tutorial 01 *A A SEMLecturer: Gay Morgan

Due Date: June 8th at 4pm


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Persons A, B, C, D, and F all present their perspective on the primary expression of the New Zealand

constitution. Although differing, all their statements (excepting As) stand on a common ground:

constitutionalism. Constitutionalism is the normative idea the power of the state should be in some

way regulated, limited, prescribed, and constrained so that it is not arbitrary (thus constitutionalism

has a very close nexus with rule of law). In a specifically Western liberal sense, constitutionalism

contains the idea of just or moral rule, embracing democracy, individual freedom, and human rights.

In the broadest sense (and most importantly), constitutionalism is the peoples particular culture of

moral restraint reflected in their countr ys constitutional arrangements. 1 So the lettered persons are

stating what they think are the means by which New Zealand fulfils the goals of constitutionalism.

Person A exclaimed, [New Zealand] do[es n]t even have a constitution! A is wrong. New Zealand

does have a constitution an unwritten one. An unwritten con stitution, according to Joseph, does

not mean there are no formal legal documents encapsulating constitutional principles. But these legal

documents will not exhibit the twin characteristics that constitute a written constitution, namely:

fundamental law [law establishing the institutions of government and their respective authorities] and

higher law [rules protecting the constitution from unjustified or unprecedented change]. 2 An

unwritten constitution may also contain conventions. These are somewhat nebulous to define, but in

general terms conventions are non- justicible rules stipulating the morality of the constitution,

including the proper use of legal rules. 3 Further, the unwritten constitution will prescribe (either

conventionally or legally) the competence of the respective constitutional actors and institutions (thus

curbing arbitrary power). 4 The constitution, then, will be a collection of secondary rules (legal or

non-legal) regulating the legitimate exercise of state power through primary rules. 5 In respect to

conventions, key aspects of the constitution are non- justicible. Cabinet is a creature of convention, a

secondary rule and therefore a component of the constitution; for it determines how power may be

exercised in this case power must be transmitted through certain political actors. Likewise, some

legal documents (such as Acts of Parliament) impose conditions on the exercising of power, meaning

they too, as secondary rules determinative of the validity of primary power, are constitutional in

nature.6

In such respect, the Constitution Act of 1986 stands as an excellent example for it imposesconditions on the exercise of power, some of which pertain to constitutional institutions and their

legal interrelationships. 7 Even though New Zealand does not enshrine a centralized written

1 J Allen, B Thompson and B Walsh Cases and Materials on Constitutional and Administrative Law(Blackstone, London, 1990) at 10-13.2 P Joseph Constitutional and Administrative Law in New Zealand (3 rd ed, 2007) at 121.3 AV Dicey, Introduction to the Study of the Laws of the Constitution (1982) at cxl cxlviii.4ESC Wade and AW Bradley Constitutional and Administrative Law (10 th ed, Longman, 1984) at 3, 4, 6.5 Ibid. HLA Hart The Concept of Law (1961) 41, 42.6 S De Smith T he New Commonwealth and its Constitutions (1964) at 109.7 Margaret Wilson Relations Between the Legislature and the Executive (Hassall and Saunders) at 77.


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constitution containing higher and fundamental law, this nation does have an unwritten constitution,

due to the reality legal documents and conventions apply as secondary restraints on primary power.

Is B justified in concluding New Zealand has a constitution on the grounds of good governance? But

first, does New Zealand res pect rule of law as B states? Rule of law is the idea that power may not

be exercised arbitrarily, that no one person or institution may exercise all power, that no one is above

the law, and the application of the law will be fair, equal, impartial, and general. 8 On 15 December

1975, Prime Minister Muldoon issued a press release ordering the immediate termination of the New

Zealand Superannuation Scheme as legislated by Parliament in the New Zealand Superannuation Act

1974. Yet Parliament was not scheduled to assemble until 22 June 1976, and could not accede to

Muldoon s directive until that date. In the intervening time, therefore, Sir Richard Wild CJ in the

resultant Supreme Court case of FitzGerald v Muldoon held Muldoon was in breach of s 1 of the Bill

of Rights (1 688) (Eng) because ...the pretended power of suspending of laws...by regall authority

without consent of Parlyament is illegall. 9 By deciding against Muldoon, Wild CJ instructed the

nation no one was above the law or could exercise power arbitrarily, especially in a procedurally

incorrect way. Additionally , Wilds recognition that the Bill of Rights precluded executive

encroachment on Parliaments unchallengeable law-making capacity, intimates one of the best ways

of preserving rule of law through the separation (formal or informal) of the judiciary, the executive,

and Parliament. With division of powers assured , FitzGerald v Muldoon reaffirmed New Zealands

(perhaps faltering) commitment to rule of law. 10 Despi te executive rule of institution as evidenced

in the Clyde Damn Saga, New Zealands ongoing commitment to a strong rule of law is demonstrable

in the implementing of Mixed-Member-Proportional voting ( MMP) in 1993. MMP sought to lessen

the ability of the executive (as expressed as National or Labour) to control Parliament through

absolute majority, thus separating Parliament from the executive and allowing it to perform its proper

function of holding the executive accountable for its actions. 11 Now turning to the first question

posed, good/just governance does not automatically presume a constitution. Good/just governance

infers the more normatively loaded term constitutionalism. But if a constitution is a collection of

secondary rules, there is nothing in that definition prescribing the secondary rules must be conduciveto the production of moral or just primary rules. For instance, a secondary rule such as the rule of

recognition could state For a primary law to valid, it must discriminate ag ainst Jews. Irrespective

of its unjust nature, this is still a secondary rule for it determines the legal validity of a primary rule.

A constitution may therefore be unjust and still remain a constitution, but the constitution would only

8 AV Dicey Introduction to the Study of the Law of the Constitution (from Chen and Palmer [Supra] at 24-25.9 FitzGerald v. Muldoon 2 NZLR 615(NZCS).10 M Chen and G Palmer Public Law in New Zealand: Cases, Materials, Commentary and Questions (1993) at11, 13.11 G Palmer and M Palmer Bridled Power: New Zealands Constitution and Government (4 th ed, 2004) at 13.


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fulfil the goals of constitutionalism if it contained a just arrangement of secondary rules. Person B,

then, was predominantly right when stating New Zealand has rule of law. But constitutions are not

conterminous with just governance.

Person C accurately acknowledges New Zealand has an all powerful Parliament, or more precisely,

Parliamentary Sovereignty. This was the legal theory popularized by AV Dicey asserting Parliament

was the ultimate manifestation of the sovereignty of its citizens. Free and fair elections were the

conduit for the personal sovereignty of the people translating into the representational sovereignty of

Parliament. Hence Parliament, can legally exercise absolute, unquestionable powers through its

resultant legislative supremacy. 12 Case law occurring after Dicey, supports the theory, as epitomized

by Pickin v British Railways Board where Lord Reid emphasized that a court may not ... disregard a

provision in an Act of Parliament o n any ground.... 13 FitzGerald v Muldoon discloses Lord Reids

holding was fully applicable to New Zealand by virtue of its affirmation the executive could not

overrule Parliament. C raises an interesting point when suggesting New Zealands system would

collapse if an all powerful Parliament abridged civil rights, but that Parliament would never legislate

against such freedoms. Civil rights are imperative in New Zealand. The means by which Parliament

acquires legitimate sovereignty is procedurally, mainly through free and fair elections democracy.

Electoral coercion will render Parliaments sovereignty invalid , for sovereignty cannot be granted

under duress. Thus civil rights; freedom of speech, conscience, expression, and thought; assume

much gravity. 14 Why wont Parliament abridge civil liberties (or any rights for that matter)? Dicey

had two answers. First, any serious degradation of liberties would cause illegitimacy and possible

revolution. These are extra-legal external limitations on Parliament. Second, conventionally (and

illustrating the importance of conventions in the Westminster System), ...Parliament [will] not

legislate for tyrannical and opp ressive purposes. Conventions are also therefore the internal

obligations of constitutional actors, and consequently are an extra-legal internal constraint on

Parliament. 15 However, some rights of New Zealanders are recognized legally in the Bill of Rights

Act 1990. Yet in keeping with the doctrine of Parliamentary Sovereignty, nothing in the Act

(according to s 4) substantively limits the absolute law-making capacity of Parliament. NewZealands pragmatic , constitutional culture predilection toward process based, unwritten, evolving

constitutionalism is inimical toward rights based constitutionalism. 16 C was right: Parliament is all

12 TRS Allen Legislative Supremacy and the Rule of Law Democracy and Constitutionalism (1985) CLJ 111at 129.13 Picken v British Railways Board [1974] AC 765.14 A Geddis Electoral Law in New Zealand (2007) at 9-11. Marc F Platter Liberalism and Democracy: CantHave One Without the Other (1998) Foreign Relations < http://www.foreignaffairs.com/articles/53815/marc-f-plattner/liberalism-and-democracy-cant-have-one-without-the-other?page=3 >.15 Phillip A Joseph Constitutional and Administrative Law in New Zealand ( 2nded, Wellington, 2001) at 495.16 Matthew S Palmer New Zealand Constitutional Culture (2007) 22 NZLUR 565 at 589, 590.
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powerful, and civil liberties and conventional recognition of them are cardinal in New Zealand,

otherwise Parliaments electorally acquired legitimacy would be dubious.

Person Ds assertion of elections being foundational in New Zealand, a state in the tradition of

Western democratic liberalism, has much merit. Social contract theory, initiated by Hobbes in the

17 th century, contended the war of all against all in the state of nature disadvantaged everyone. The

solution was the Leviathan, an all-powerful, undivided state, legitimated through the single historical

transference of all the sovereignty of the individual. Locke , concerned with the Leviathan abusing

its power, amended Hobbes idea by suggesting ultimate sovereignty was retained by the people.

Thus the state was limited, and a nebulous concept of consent of the people to the representation of

their sovereignty arose. James and Stuart Mill and Jeremy Bentham later crystallised Lockes consent

theory. Democracy was the means for choosing, authorizing and controlling political decisions

commensurate with the public interest .17 New Zealands form of demo cracy, Parliamentary

sovereignty, can be reasoned to be a hybrid of the above viewpoints. Parliament is the all-powerful

leviathan (Hobbes), the sovereignty of which is dependent on the consent of the people for Parliament

to represent their sovereignty (Locke), and the form that consent takes is democracy periodic

elections (the two Mills and Bentham). So legitimacy in New Zealand entails democracy as the

procedure for attaining representation, thereby affirming the sovereign power of Parliament. 18

Stemming from the epicentre of liberalism with its concern for rule only by consent, elections are key

to New Zealands constitutional legitimacy. In the 70s and 80s, a crisis of legitimacy transpired.

Consent was insufficient. The primitive First-Past-the-Post (FPP) voting system consistently

produced largely unrepresentative governments. Labour and National maintained a duopoly of power

with, in 1993 for example, only a scant 35.1% of the national vote a non-majority conceivably not

even a shifting minority - vote. When amalgamated with the Westminster fusion of executive and

legislature, and the unitary, unicameral nature of the constitutional arrangements; FPP rendered New

Zealand an executive paradise. 19 Impervious to any moderation due to an absolute (and a

disproportional) majority in Parliament, the government became a law unto itself. The government

was not responsible to the people, because the component of the state representing the people wasbeholden to it. Thus the govern ments legitimacy could be first questioned on its non -majoritarian

support, and then on its non-accountability to that non-majority as depicted by the Fourth Labour

Government s unpopular socio-economic restructuring. However, the MMP party vote introduced in

1993 improved proportionality. Minority and coalition governments, lacking an absolute majority,

are consequently now more responsible to Parliament and therefore less dominant. 20 Elections are

17D Held States and Societies (1985) at 6, 7, 10, 11, 15.18 Geddis, above n x at 16.19 Geddis, at n x at 26-2920 Palmer and Palmer, above n x at 10-18.


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foundational to New Zealand. Witho ut them, consent to representation of citizens sovereignty by a

Parliament (and by extension through the policies of the executive) cannot be given. If consent is not

given, New Zealands constitutional foundations of democratic liberalism declare the go vernment

illegitimate and morally depleted.

Person F apprehends the Treaty of Waitangi as the cornerstone of New Zealands constitutional order.

Fs correctness is dependent on whether the Treaty is the grundnorm of New Zealand s legal order.

Kelsen believed the grundnorm to be the first constitution, a binding norm, presupposed to be valid.

A grundnorm is therefore the ultimate legal reality, legitimating the legal systems built upon it. It is

only extinguished in a manner in which the legal order itself determines, or by a revolution, which

replaces the old grundnorm with a new one. 21 In Rep. Of Fiji v. Chandrika Civil Appeal No.

ABU0078/2000S, the criteria for the establishment of a new legal order was that the new order was

successful, effective, non- oppressive and enjoyed popular acceptance. 22 Is the Treaty of Waitangi a

grundnorm, and does it meet the cases criteria for a new grundnorm ? Arguably, it is the first legal

reality jointly entered into by Maori and the Crown. It has competitors though. What about the

Magna Carta or the 1688 Bill of Rights? The sentiments expressed in both documents can still

influence New Zealand law today, as evidenced by Wild CJs appeal to the 1688 Bill of Rights in

FitzGerald v Muldoon. 23 Given the weight now placed on the Treaty, it is likely that it is the primary

binding norm, presupposed to be valid. With the predominantly conventional nature of New

Zealands constitution, popular acceptance of th e Treaty is paramount. Is it popularly accepted

today? Yes. Lord Cooke of Thor ndon described the treaty as simply the most important document

in New Zealands history. 24 It seems the treaty is a grundnorm. It is presupposed to be valid, enjoys

popular support, was incipient between Maori and the Crown, has never been fully overthrown, and

has not extinguished itself on its own terms. While it may have competitors, it is definitely, as Lord

Cooke pointed out, increasingly in the public limelight, telling evidence of its essential status.

While it is possible in a specific sense to say if an individual person is correct, overall no one

contention presides over another. Perhaps elections can be afforded pre-eminence since they are keyin legitimating the use of power, but then the Treaty of Waitangi is increasingly being seen as a

binding document or norm upon the use of power as well. The answer may well lie in the process-

based, evolving, pragmatic, unwritten (adaptable) nature of New Zealands constitution. This nations

constitution is therefore on a journey, meaning no final conclusions are reached. Hence, it is only

possible to say what the constitution includes, not the relative importance of its components.

21H Kelson The Pure Theory of Law (translation M Knight) (1970) at 115 117.22 Rep. Of Fiji v. Chandrika Civil Appeal No. ABU0078/2000S.23 Chen and Palmer, above n x at 11-13.24 Morag McDowell and Duncan Webb The New Zealand Legal System (4 th ed, Wellington, 2006) at 171.


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I Bibliography

Allen, J, Thompson, B and Walsh, B Cases and Materials on Constitutional and Administrative Law

(Blackstone, London, 1990)

Allen TRS Legislative Supremacy and the Rule of Law Democracy and Constitutionalism (1985)

CLJ 111

Chen, M, Palmer, G Public Law in New Zealand: Cases, Materials, Commentary and Questions

(1993)

De Smith, S T he New Commonwealth and its Constitutions (1964)

Dicey, AV Introduction to the Study of the Laws of the Constitution (1982)

Dicey, AV Introduction to the Study of the Law of the Constitution (from Chen and Palmer [Supra])

FitzGerald v. Muldoon 2 NZLR 615(NZCS)

Geddis, A Electoral Law in New Zealand (2007)

Hart, HLA The Concept of Law (1961)

Held, D States and Societies (1985)

Joseph, Phillip A Constitutional and Administrative Law in New Zealand ( 2nded, Wellington, 2001)

Joseph, P Constitutional and Administrative Law in New Zealand (3rd

ed, 2007)

Kelson, H The Pure Theory of Law (translation M Knight) (1970)

McDowell, Morag, Webb, Duncan The New Zealand Legal System (4 th ed, Wellington, 2006)

Palmer, G, Palmer, M Bridled Power: New Zealands Constitution and Government (4 th ed, 2004)

Palmer, Matthew S New Zealand Constitutional Culture (2007) 22 NZLUR 565


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Pickin v British Railways Board [1974] AC 765

Platter, Marc F Liberalism and Democracy: Cant Have One Without the Other (1998) Foreign Relations

Rep. Of Fiji v. Chandrika Civil Appeal No. ABU0078/2000S

Wade, ESC, Bradley, AW Constitutional and Administrative Law (10 th ed, Longman, 1984)

Wilson, Margaret Relations Between the Legislature and the Executive (Hassall and Saunders)
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constitutional law - short essay

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