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  • rmacculloch

The Treaty Debate has Exposed the Weakness of NZ's Core Institutions

NZ has regularly been ranked as having amongst the world's highest quality institutions, in terms of security of property rights. All that maybe about to change. The Treaty Debate is exposing the constitutional ambiguity & inherently shaky nature of our core institutions which we wrongly assumed - up until now - were strong.

The nature of the tectonic crack opening up in the legal arrangements of this country is succinctly captured by comments from two prominent Kiwis - the academic & historian, Mānukā Henare, and former Deputy PM, Sir Michael Cullen. Mānukā once told me, "What we don't win in Parliament, we will win in the Courts". Meanwhile, Sir Michael is quoted as saying, "the Government holds that Parliament is sovereign, not anybody else in NZ. That is a principle that needs to be asserted very, very clearly indeed".

Both men are sadly no longer with us, but their words resonate today as we head for legal chaos. The reason stems from the nature of our constitution, which is made up of a not-clearly-defined mix of written & unwritten arrangements, including the Treaty of Waitangi. We have no single constitutional document like America, a feature NZ inherited from the British. But we are not British - we have different values & beliefs - and the UK has no Treaty like ours imbedded in its constitution. In the US, constitutional amendments require a 2/3 majority vote in both the House of Representatives & Senate. It helps ensure the nation has firm, stable foundations that cannot be broken at the whim of one party or president & then reversed by the next. By contrast, our constitution can be changed as easily as the Ute Tax, which was revoked by the new coalition with a 1/2 parliamentary majority before Christmas.

This feature of NZ's legal institutions has been exposed as unworkable in the context of the Treaty debate. Today we face the scenario of a significant group of folks who firmly believe the new coalition does not have anywhere near a sufficiently large majority in Parliament to pass legislation affecting the Treaty's meaning, like it wants to. The new coalition must, the logic goes, thereby fully abide with court decisions regarding that meaning. However, another significant group firmly believe such legislation can, and should, be passed by a simple one-half majority, which the government already has the legal authority to do.

Neither group is likely to back down. So long as our constitutional chaos endures, property rights will become less secure. Investments will become more risky. Growth will slow. We've turned out to be living in a leaky house built on fragile foundations. It must be rebuilt; fast. The world is already taking a second look at the quality of our institutions.



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