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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)
http://www.foreignaffairs.com/articles/53815/marc-f-plattner/liberalism-and-democracy-cant-have-one-without-the-other?page=3http://www.foreignaffairs.com/articles/53815/marc-f-plattner/liberalism-and-democracy-cant-have-one-without-the-other?page=3http://www.foreignaffairs.com/articles/53815/marc-f-plattner/liberalism-and-democracy-cant-have-one-without-the-other?page=3http://www.foreignaffairs.com/articles/53815/marc-f-plattner/liberalism-and-democracy-cant-have-one-without-the-other?page=3 -
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