Lewis Holden has posted his thoughts on Mai Chen's article about elevating the Treaty of Waitangi to a supreme law (so laws contradicting it could be struck down by the courts). He specifically points out that a move to a republic does not require a rethink of the Treaty as Mai Chen claims.
That's definately true - if New Zealand did become a republic with a written constitution, there is absolutely nothing stopping us putting in a clause affirming that the Government of New Zealand assumes the rights and responsibilities of the Crown as stated in the Treaty. Not that I think including the Treaty in a New Zealand constitution is a good idea, but that doesn't mean that it couldn't be done (in fact, I think that the Treaty would be the main sticking point in any move to adopt a written constitution here).
No Right Turn also points out an article by David Haywood arguing that our current Bill of Rights is fairly worthless as it is neither entrenched, nor supreme law. That means that it can be changed by a simple majority in Parliament, and can even be ignored simply by drafting a bill that is incompatible with it.
I would probably support a move to entrench and elevate the Bill of Rights, preferably with Gordon Copeland's proposed amendment to it to add property rights (it's based on a failed bill by Owen Jennings several Parliaments ago). NRT suggests a citizen's initiated referendum to put pressure on Parliament, or preferably a bill to force a binding referendum on it.
My problem with a written constitution though is that it can encourage judicial activism, which I really detest. Some of the decisions out of the US Supreme Court on constitutionality bear no relation to the actual text of the constitution itself (I am thinking particularly about Roe vs. Wade - how on earth can you read the text of the constitution and conclude that it provides a constitutional right - not just a legal right - to abortion).
So, is a written constitution for New Zealand a good idea? Honestly, I am not sure. I'll have to think about that further.trailer mu
That's definately true - if New Zealand did become a republic with a written constitution, there is absolutely nothing stopping us putting in a clause affirming that the Government of New Zealand assumes the rights and responsibilities of the Crown as stated in the Treaty. Not that I think including the Treaty in a New Zealand constitution is a good idea, but that doesn't mean that it couldn't be done (in fact, I think that the Treaty would be the main sticking point in any move to adopt a written constitution here).
No Right Turn also points out an article by David Haywood arguing that our current Bill of Rights is fairly worthless as it is neither entrenched, nor supreme law. That means that it can be changed by a simple majority in Parliament, and can even be ignored simply by drafting a bill that is incompatible with it.
I would probably support a move to entrench and elevate the Bill of Rights, preferably with Gordon Copeland's proposed amendment to it to add property rights (it's based on a failed bill by Owen Jennings several Parliaments ago). NRT suggests a citizen's initiated referendum to put pressure on Parliament, or preferably a bill to force a binding referendum on it.
My problem with a written constitution though is that it can encourage judicial activism, which I really detest. Some of the decisions out of the US Supreme Court on constitutionality bear no relation to the actual text of the constitution itself (I am thinking particularly about Roe vs. Wade - how on earth can you read the text of the constitution and conclude that it provides a constitutional right - not just a legal right - to abortion).
So, is a written constitution for New Zealand a good idea? Honestly, I am not sure. I'll have to think about that further.trailer mu
Comments
Well, it has to be better than the status quo, which is very undefined. Moreover, an unwritten constitution encourages judicial activism in the sense that - and this is true in the case of the Treaty - where the superior court feels there is a 'gap' in the law, they move to fill it in. That's how we got the principles of the Treaty in the first place.trailer mu
I think that's sort of correct. Parliament passed a law that mentioned the principles of the treaty, and then Lord Cooke's Court of Appeal decided to define them (or at least partially define them).If we were to move to a written constitution, I would prefer that it be as minimal as possible though, to try and limit judicial activism. Probably just the contents of the Constitution Act 1986, and the Bill of Rights Act 1993.trailer mu