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A constitution: What is it?

A constitution is about public power, the power of the state. It describes and establishes the major institutions of government, states their principal powers, and regulates the exercise of those powers in a broad way. While all constitutions have these general characteristics, each constitution is affected by the national character of the state it services.

The New Zealand constitution: Its main features

The New Zealand constitution is to be found in formal legal documents, in decisions of the courts, and in practices (some of which are described as conventions). It reflects and establishes that New Zealand is a monarchy, that it has a parliamentary system of government, and that it is a democracy. It increasingly reflects the fact that the Treaty of Waitangi is regarded as a founding document of government in New Zealand. The constitution must also be seen in its international context, because New Zealand governmental institutions must increasingly have regard to international obligations and standards.

The Constitution Act 1986

The Constitution Act 1986 is the principal formal statement. The Act first recognises that the Queen-the Sovereign in right of New Zealand-is the Head of State of New Zealand, and that the Governor-General appointed by her is her representative in New Zealand. Each can, in general, exercise all the powers of the other.

The Act then deals with the Executive, the legislature, and the judiciary.

The provisions about the Executive emphasise its parliamentary character. Only Members of Parliament may be Ministers of the Crown and Parliamentary Under-Secretaries. One Minister may also act for another.

Parliament-the legislature-consists of the Sovereign and the House of Representatives. The members of the House are elected in accordance with the Electoral Act 1993. Each Parliament has a term of three years, unless it is earlier dissolved. The Governor-General has the power to summon, prorogue and dissolve Parliament. After each general election, Parliament is to meet within six weeks of the date fixed for the return of the writs.

The Constitution Act provides for Parliament to have full power to make laws; a Bill passed by the House becomes law when the Sovereign or Governor-General assents to it.

The Constitution Act reaffirms the constitutional principles about parliamentary control of public finance: the Crown may not levy taxes, raise loans, or spend public money except by or under an Act of Parliament.

The provisions about the judiciary also relate back to long established constitutional principle. To enhance their independence, the Judges of the Supreme Court, the Court of Appeal and the High Court are protected against removal from office and reduction of salary.

Other sources of the constitution

The other major sources of the constitution include:
�The prerogative powers of the Queen under which, for instance, the Queen issued the Letters Patent Constituting the Office of the Governor-General of New Zealand in 1983 and conferred her powers in respect of New Zealand on the Governor-General. The Queen appoints the Governor-General who, in general, exercises her prerogative powers. The Queen or Governor-General appoints and dismisses members of the Executive Council and Ministers of the Crown. Those powers are part of the common law. They exist independently of statutes, although statutes can, of course, limit or even supersede them.
�Other relevant New Zealand statutes, such as the State Sector Act 1988, the Electoral Act 1993, and the Judicature Act 1908, relating in turn to the three branches of government, as well as the Ombudsmen Act 1976, the Official Information Act 1982, the Public Finance Act 1989 and the New Zealand Bill of Rights Act 1990.
�Relevant English and United Kingdom statutes, such as Magna Carta 1297, the Bill of Rights 1688, the Act of Settlement 1700 (regulating succession to the throne among other matters) and the Habeas Corpus Acts, all confirmed as part of the law of New Zealand by the Imperial Laws Application Act 1988. These statutes also regulate the relations between the state and the individual.
�Relevant decisions of the courts, for instance, upholding rights of the individual against the powers of the state, and determining the extent of those powers.
�The Treaty of Waitangi, which may indicate limits in our polity on majority decision making. The law may sometimes accord a special recognition to M�ori rights and interests such as those covered by Article 2 of the Treaty. And in many other cases the law and its processes should be determined by the general recognition in Article 3 of the Treaty that M�ori belong, as citizens, to the whole community. In some situations, autonomous M�ori institutions have a role within the wider constitutional and political system. In other circumstances, the model provided by the Treaty of Waitangi of two parties negotiating and agreeing with one another is appropriate. Policy and procedure in this area continues to evolve.
�The conventions of the constitution, which in practice regulate, control and in some cases transform the use of the legal powers arising from the prerogative or conferred by statute. The most important conventions arise from the democratic character of our constitution.

Constitutional conventions are of critical importance to the working of the constitution, even though they are not enforceable by the courts. In 1982, the Supreme Court of Canada summarised the constitutional position in that country in an equation: constitutional conventions plus constitutional law equal the total constitution of the country.

The underlying principle: Democracy

The Queen reigns . . .

That basic equation and the democratic character of the main conventions appear clearly in relation to the powers of the Queen and Governor-General under the law. Thus they may appoint Ministers and other holders of important offices (such as the Judges, the Defence Chiefs, the Ombudsmen, and the Controller and Auditor-General), they may dismiss them (following certain procedures), they may summon and dissolve Parliaments, they may assent - or not - to Bills passed through the House, and they may agree - or not - to proposed regulations and Orders submitted to them by the Executive Council and Ministers.

. . . but the government rules . . .

The Queen and the Governor-General are free to take those steps as a matter of law. But, as a matter of convention, they do so only on the advice of the Prime Minister or Ministers who have the support of the House of Representatives - that is, on the advice of those who are elected by the New Zealand voters, and who belong to a party which has a majority in the House; or who are part of a coalition which has a majority; or who, as a minority, are accepted by the House as able to sit on the Treasury benches. There must always be a ministry (the government of the day) to advise the Queen or Governor-General.

. . . so long as it has the support of the House of Representatives

That convention of course incorporates its own limit - one that conforms with democratic principle. If the government loses the support of the House, or if the Prime Minister loses his or her support as the leader of that government, then the ministry or the Prime Minister is likely to change: another party or combination of parties may now have the support of the House, or a new leader may be identified as Prime Minister. Or the Governor-General may face a more difficult situation because the position within the House or the governing party is unclear.

Situations like this were rare in New Zealand under the first past the post electoral system, but have been less rare since the introduction of the proportional representation electoral system. The essential principle in such situations continues to be that the Queen, as a constitutional monarch, or the Governor-General, as her representative, acts in accordance with the advice of the Prime Minister or Ministers who have the necessary support of the House of Representatives. Where that support is unclear, the Governor-General relies on the elected representatives in the House, and especially the party leaders, to clarify whether a party or grouping of parties has the support of the House to govern, or whether fresh elections will be required. In the meantime, the incumbent government continues in office, where necessary acting in accordance with the convention on caretaker government.

This is not to deny the important role of the Governor-General in the business of government. Practice and the Letters Patent indicate that the role includes being informed and consulted, and advising and warning Ministers. The office has central symbolic, unifying, and representative roles, as well as the important legal powers already mentioned.