Democracy anxiety

Yesterday the New Zealand Herald took the unusual step of warning its 200,000 customers that democracy in New Zealand is at risk. The principle threat is the Electoral Finance Bill which attempts to curtail third-party spending in favour of parties or issues 12 months prior to an election. Every credible independent authority from the Human Rights Commission to the Law Society have described the Bill as an assault on New Zealanders freedom of expression.
Combined with the Prime Minister's new found interest in applying anti-terrorism legislation (originally enacted to comply with UN conventions) domestically and one begins to get the uncomfortable feeling that despite having little ideologically in common with the US Republican Administration our Labour Government is not above the same dubious law-making in order to tighten its grip on power.

The fundamental problem in my view is the weakness of our constitutional guardian – the Governor-General. In every political structure there is an office, whose duty is, in theory, to protect the constitution from the executive. Even in Soviet Russia the chairman of the supreme soviet was, in theory, the guardian of the constitution even as general secretary Stalin was sending potential rivals to the Gulags. In Nazi Germany Hitler was elected President after Hindenburg's death – even though as Chancellor he'd made it impossible for anyone to stand against him. In New Zealand the Governor-General is technically appointed by the British Queen but is effectively elected by the Parliament. The Governor-General has the power to dissolve Parliament and is the ultimate commander of the military. In practice, however, all Governors-General in our history have been rubber stamps who have done what they have been told to do by the Prime Minister.

But should the "push" of a Prime Minister: who has developed a heightened sense of paranoia, wrapped herself in the flag and spent heavily on the military, increased the 'anti-terror' role of the Police, and clamped down on political opponents; come to shove against a compliant Governor-General, I have no doubt that the Governor-General would cave in an instant. Helen Clark may think that this description of herself is ridiculous but all rulers have a tendency to only look in mirrors that flatter them, not mirrors that cast harsh shadows. And it is the shadows of any regime that matter.

What New Zealand needs, in my view, is two things. First it needs a constitutional law which describes the nature of democracy at all levels in New Zealand. This law begins with the Bill of Rights but must further stipulate how elections are carried out, the legitimacy of MPs holding office, the nature of the freedom of expression including libel laws, the nature of open Government and the status of commissioners particularly of IRD, Police, Statistics and of the defence force. Like the American constitution it must be high level statements of principle against which other laws can be tested. Any change to this constitution must require a three-quarters super-majority.

Second it needs a constitutional court, superior to Parliament, which rules on matters of constitutional law under reference from lesser courts or the head of state. The Court would consist of seven judges, including three foreign judges of suitable standing from a Commonwealth nation. Appointment to the Court would be until age 70 and be elected by the Parliament.
None of this necessarily requires the establishment of a republic. In theory the Governor General could continue to remain the head of state. What it adds is an extra layer of protection to our democracy which is simply not there at present. Should we, in future, become a Republic, the Constitutional Court would provide a means to guarantee that any President could not follow in the footsteps of General Musharraf and 'suspend' the constitution.

We are, in New Zealand, highly fortunate that democratic principles run relatively deep in Government, the Police and the military. While the Police may be somewhat 'robust' with those they see as quasi-criminal political agitators, even in the depths of the Springbok Tour (1981) they drew back from the kind of political intervention so common in other nations. Despite that democracy is rarely killed in a single coup de grace. It is the "death by a thousand cuts" that New Zealanders must rightly fear. Establishing an authority whose task is to defend our freedoms is an essential next step in our constitutional development.

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