Problems Of Written Constitution Reviewed

Press, Volume XCIX, Issue 29380, 6 December 1960, Page 14

Problems Of Written Constitution Reviewed

It was a reasonable assumption that by tar the greater number of the people signing the Constitutional Society’s petition for a written constitution and the reversion to a bicameral system of Parliamentary Government had no real idea what they were asking for, says a leading article in the November issue of the "New Zealand Law Journal.** “We suggest that the inference to be drawn from the response to requests for signatures to the petition is that a great many people are dissatisfied with the manner in which the present system is operated and are prepared to accept any change as being for the better.” the article says. Two of the requisites of a written constitution were that it should be binding and that it should be capable of amendment or repeal only in accordance with its own terms. A constitution which could be amended merely by a statute enacted in the ordinary way would be no safeguard or advantage to anyone. Three Ways The article discusses three ways in which a written constitution could be brought about The first was provided by Act of the British Parliament for colonies being granted self-government. The second was by' convention amongst sovereign States, but that method was applicable only to sovereign States. This method was obviously not available to New Zealand which was not a federal State and had no desire to become one even if that were possible. The third and final method would be by an act of the General Assembly of New Zealand itself. To serve any reel purpose such a constitution would require to lay down special rules for amendment, but the same question arose—whether future Parliaments would be bound to follow those rules.

"This is a problem which has divided writers on constitutional, law and which has not yet been solved. On the one hand, there is the group which holds that Parliament is sovereign in its lawmaking powers and can disregard conditions imposed by its predecessors. On the other is the group which says that Parliament, in making laws is bound to follow the procedural rules laid down by its predecessors although it cannot prohibit the repeal or amendment of a statute.

"We suggest that the, disadvantages of the adoption of a written constitution heavily outweigh the rather doubtful advantages which might flow from it,’’ the journal says. “The triennial election is in itself a valuable check on the activities of the Government. In theory, Parliament could extend its life indefinitely and thus nullify this check, but, except in times of stress and with the tacit approval cf the electorate, no Parliament has as yet sought to do so, nor is one likely

to do so tor fear of public opin"A final thought on the efficacy and desirability of a written constitution arises from the question

of enforcement. Assume the adoption of such a constitution, held binding by the Courts. Assume also the enactment of legislation held by the Courts to be unconstitutional. Who is to enforce the judgment of the Courts? “In Little Rock the Federal Government sent in the Army. In New Zealand the Army and the Police are under the control of our own Government. In the last resort, with a Government

of the very type against which the constitution would be directed, and which could be expected to defy the Courts, we are thrown back on the weight of public opinion to deter the Government from so acting, so that, in the long rim, we should have no more effective sanction than we have at present. “With all that has been said and written in favour of the second Chamber, no-one. to our knowledge, has brought forward one method of appointment or election that is acceptable. "The old process of nomination by the Executive is completely undesirable. Nominations by each of the political parties in proportion to their respective strengths in the House of Representatives is less objectionable but seems to add little to the strength of the Opposition under the present system. Any form of election by proportional representation or otherwise is untried and could produce unlooked for results, including a membership so opposed to the policy of the Government as to bring about a deadlock.

“We do not say that the problem is insoluble, but no-one has yet produced the solution, nor can we attempt to do so. Until it is found it is better to carry on under the present system with all its defects rather than to try the untried merely for the sake of change. “The subjects discussed in this article are of the greatest importance to the country and call for deep and clear thinking. Our purpose has been to provoke that type of thinking.”