1. New Zealand’s Constitution and the Treaty
Possibilities and Limitations
Issues for ECO: Constitutionalism’s Purposes and Goals Necessities for Effective Constitutionalism Role of the Treaty in New Zealand’s Constitution and Constitutional culture Possibilities and Limitations flowing from the Treaty’s Constitutional Role
Gay Morgan
Senior Lecturer in Law, Te Piringa- Faculty of Law
2013

3. Constitutionalism: BACKGROUND
Is about POWER
Is about the use and abuse of the State’s power (in democracies) the use and abuse of the power of the majority.
Is about the adage from Lord Acton: Power corrupts, absolute power corrupts absolutely
Has developed through both political theory and political experience (i.e. Disastrous abuses of powers) to provide structures and rules most likely to enable both enough power for effective governance and enough institutional checks on power to prevent abuses of that governing power
Is about differentiating raw power from legitimate authority and maintaining that differentiation
Is about delineating and maintaining a certain understanding of the ‘social contract’.

4. Constitutionalism and Law
LAW, POWER, and AUTHORITY
Much of the law we encounter in our lives are rules about our everyday conduct, these are often called “PRIMARY RULES”
The Primary Rules of a legal system are of the sort that direct and regulate our conduct in society
In a Constitutional Democracy, Primary rules are governed by ‘SECONDARY RULES’ or ‘Rules about rules’.
Secondary Rules are the rules about:
Rules of recognition: Rules about which institutions have the legitimate authority to make primary rules and about how that authority is maintained
Rules of Change: Rules about how the primary rules may legitimately be changed
Rules of Adjudication: Rules about how disputes about the application and interpretation of Primary Rules are to be settled peacefully.
Secondary Rules are generally Constitutional in nature, they govern the State’s use of Primary Rules to exercise its Power or how the State is kept to the fundamentals of the ‘social contract’.

5. CONSTITUTIONAL ARRANGEMENTS or ‘Rules about Rules’
Most Constitutions set out two basic sorts of constraints on exercises of power in order to claim and maintain the legitimacy of authority of their governing institutions.
1) Procedural Requirements about making and using Rules, and ;
2) Substantive Limitations on the permissible content of Rules
These Constitutional Rules in all but three Constitutional Democracies in the world are based on a
Written Constitution, which written document has been accepted through various political events as providing the fundamental and legitimate basis, institutions, and procedures for the exercise of legitimate authority by the State. The ‘Rules of Recognition’ in these jurisdictions consider the rules about state power set out in their written constitutions to be the highest law, and hence legally binding on all actors and enforcable through courts.
New Zealand, like Britain and Israel, has no one document that does all these things, but it has a collection of documents and understandings (called Conventions) which act as the rules about the legitimate exercises of State Power. New Zealand’s Constitutional ‘understandings’ or Conventions may not be enforced in a court of law, as under New Zealand’s ‘Rules of Recognition’ Conventional Constitutional Understandings do not count as Law. Rather, in New Zealand, Constitutional Conventions are enforced through constitutional morality, people power and adverse political consequences.
In New Zealand both sorts of the Constitutional constraints mentioned above are ultimately dependent on Convention for their authority, i.e., in New Zealand our Constitutional rules depend directly, rather than indirectly, on us for their continued legitimacy and enforcement.
ANY Constitution is ultimately only authoritative or effective if it is accepted as so from the internal perspective of the governing actors and people of a State. Constitutions, like Tinkerbell, only ‘live’ if we truly believe in them. So, Constitutions depend on persuasive Legitimacy claims for their authority.
A third constraint for the legitimacy of constitutional authority is the consent or commendation of the international community of Constitutional Democracies.

6. New Zealand’s Fundamental Constitutional Conventions underpinning the legitimacy of our Constitutional Arrangements
Parliamentary Sovereignty: power legitimized into authority through democratic franchise.
Parliamentary Sovereignty has no legal constraints, but is constrained conventionally to maintain free and fair elections, respect civil and political rights, that is, to not act tyrannically and to respect the convention of….
Rule of Law: The idea that all are equal before the law, including the government and the lawmakers, that there should be a separation of power between the law maker, the executor of the law, and the law interpreter, so that ‘the law’ rather than any one institution or person rules or becomes all powerful. It also includes the idea that the Judiciary should be independent from political interference and pressures as to how to rule in a case.
Responsible Representative Government: The idea that the Government must maintain the confidence of the House or resign (this is no where in law, in fact, although we have a statute called the Constitution Act 1986 consolidates some constitutional basics, and the Electoral Act 1993 tries to legally protect some aspects of our voting system from simple repeal by Parliament, there is no ‘law’ in New Zealand that is legally protected from simple repeal by Parliament, but there is much that is Conventionally protected.
Conventionally, it is unthinkable that a government would fail to resign if it lost its majority.
Conventionally, it is unthinkable that Parliament would not respect the special procedures set out in the Electoral Act 1993 for changing our electoral procedures or for changing the term of Parliament.
Conventionally, it is unthinkable that Parliament would abolish elections (although during the World Wars Parliament did just that, by postponing them til better times).
Conventionally, it is unthinkable that Parliament would pass a law requiring people to give up their first born child
What makes these rules stick is not law, but rather the political and constitutional morality of New Zealand.
Arguably, the Treaty of Waitangi has a role as a necessary and fundamental Constitutional Convention.
11/10/2018

7. The Role of the Treaty of Waitangi in New Zealand’s Constitutional Legitimacy
1835 Declaration of Independence 1840 Treaty of Waitangi Viewed as: Procedurally correct way for British to gain Sovereignty in New Zealand through consent of the native people being gained via the proper channels (hapu and iwi) (Article 1) Substantive limitation on legitimate exercises of authority by the British(the guarantees in Articles II and III)

8. Very Brief History in Law
Considered the Founding Document of New Zealand as under one Government
Two texts in two languages, neither is a literal translation of the other.
512 signatures on Maori version, 39 on the English version
Originally respected and considered to be of legal force by the courts, i.e. the English version was recognised as law under prevailing ‘Rules of Recognition’ of what counted as law.
New Zealand Constitution Act 1852 granting self governance to NZ, property requirements in the voting rules disenfranchise Maori, there is a subsequent to weakening of respect for TOW Article II, and eventual Land Wars.
Maori males provided with voting franchise for separate but disproportionate Parliamentary seats in 1867 (before nonpropertied nonMaori males, who were unable to vote until 1879), partly to ‘re-legitimize’ NZ governing arrangements post Land Wars.
Wi Parata case, 1879, in the aftermath of the Land Wars declares TOW a nullity, denigrates Maori systems of governance as nonexistant, and sets basis for legitimacy of Parliamentary authority as ‘Law maker’ to be superior power rather than historic (and conditional) consent.
Maori struggles for recognition and respect for TOW, in Britain and in NZ, through legal and political means, wax and wane, with re-recognition of importance to TOW to NZ’s Constitutional Legitimacy developing steam in the 70s through to today.
Controversy continues over interpretation and status of TOW.
TOW, while again considered a valid treaty, is still not considered not to have legal domestic effect unless enacted into domestic legislation.
The Waitangi Tribunal established and Parliament incorporates TOW ‘principles’ into various statutes, but it is left to the courts to develop what the TOW ‘principles’ are.
TOW principles of ‘Partnership, Good Faith, and Participation’
TOW has become part of the interpretive ‘background’ for the Courts when interpreting various sorts of rules, i.e., TOW principles have become integrated into Secondary Rules around adjudication.
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9. The Treaty as a Fundamental Constitutional Convention
The Treaty of Waitangi as of today has the ‘characteristics’ of a Constitutional Convention.
It may not be enforced as law by the Courts, unless Parliament puts it in a Statute.
It is considered to be an important basis for the legitimacy of Parliament’s authority.
It is unthinkable for Parliament to declare that it means nothing, and if Parliament or the Government did so there would be immediate important political consequences, both domestically and internationally.
It provides both procedural and substantive nonlegal limitations on Parliamentary authority.
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10. Are Constitutional Conventions Enough ?
Currently there is a Constitutional Review underway, with one issue being whether New Zealand should abandon its conventional constitution for a legal constitution.
How would this affect Constitutionalism in New Zealand?
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11. Written Constitutions as Law
A written constitution, like any constitution, is ultimately dependent on a constitutional culture.
A written constitution, unlike a conventional constitution, is not authoritatively interpreted directly by the people, but is law that is interpreted by the courts.
Written constitutions tend to entrench and protect status quo understandings at the time of their writing.
Courts may not interpret the written constitution in a ‘living’ or ‘progressive’ way, and those interpretations can impede social action and legal change for decades.
Written constitutions are not influenced or changed by marching or protests.
A written constitution does not evolve through changing consensus, but through special amendment procedures, which are generally very expensive and lengthy endeavors or through gradual changes in the makeup of the highest interpreting court enabling successful litigation.
Lawyers and Courts ‘own’ a written constitution, in the first instance, in a way that they do not ‘own’ a conventional constitution
Written Constitutions can be higher law and provide legal protection from abusive statutory law or government persecution.
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12. Treaty as part of a written Constituton
Who would then ‘own’ the Treaty?
Would Article II as higher law provide more effective protection for Maori Rangatiratanga over land and resources?
Would Article II as higher law advance environmental protection or would it advance further exploitation of nonwater resources for economic advantage?
Is there an unexamined presumption of a shared vision of Kaitiakitanga?
Are there any evidential bases about the extent of a shared vision?
Are there any evidential bases indicating a divergence of vision?
If there is a divergence, is there anyway to come to a durable shared vision?
These are questions and the issues in the last power point would need to be explored with tangata whenua before deciding from the ECO perspective which way, conventional or higher law, is the best way forward for either the Constitution as a whole or for the Treaty as a founding social contract.
11/10/2018