New Zealand’s Constitutional Crisis
New Zealand Universities Law Review, Vol. 24. No. 3, 2011
25 Pages Posted: 17 Apr 2011 Last revised: 6 Apr 2015
Date Written: December 1, 2010
New Zealand is undergoing a constitutional crisis. The crisis, however, is not a direct result of the absence of a written constitution, of an entrenched and supreme Bill of Rights, of the place of the Treaty of Waitangi in the country’s legal order, or of retaining (or abolishing) the institutions of the monarchy. Pressing as some of those issues might be, New Zealand’s constitutional pragmatism has been able to address them in a piecemeal fashion, avoiding at the same time any serious risks of political or constitutional instability. The crisis is far from being unique to New Zealand: it is in fact shared by the constitutional systems of the world’s most advanced democracies. In a nutshell, New Zealand’s constitution suffers a profound crisis of democratic legitimacy: how to understand New Zealanders as authors of their constitution, if the constitution rests on rules and conventions that were not adopted by the people and, more importantly, cannot be altered through democratic procedures? How can we make New Zealand’s constitutional regime legitimate from a democratic perspective?
In answering these questions, this article will advance a conception of democratic legitimacy which rests on two criteria. First, a democratically legitimate constitutional regime must provide an opening for constituent power to manifest from time to time. Second, the constitution must operate under a conception of constitutional reform according to which fundamental changes must take place through the most participatory procedures possible. This conception of democratic legitimacy, although informed in important ways by concepts developed in the tradition of written and entrenched constitutions, can be applied in a meaningful way to a constitutional system such as that present in New Zealand. As the paper will argue, New Zealand’s constitutional thought, in contrast to its English counterpart, has embraced in important ways a distinction between Parliament and people, attributing the latter with a superior power of constitutional reform. Once that distinction is accepted, a democratically legitimate constitution, a constitution susceptible of being changed through the exercise of constituent power, becomes a real possibility.
Keywords: New Zealand, democratic legitimacy, constituent power, unwritten constitutions, democracy, constituent assemblies, referendums, popular initiatives
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