As the Constitutional Advisory Panel launches its public education and consultation campaign, questions about its focus, agenda and independence are as loud as they will be persistent.
Set up as part of National’s confidence and supply agreement with the Māori Party, the Advisory Panel was always going to have to work hard to overcome the assumption that the constitutional status of the Treaty of Waitangi and Māori political representation would be the central focus of any discussion.
Of course there was never any other possibility that the Treaty would loom large in discussions. Given our unique history and the blurred legal and social plurality of Godzone in the 21st century, it’s proper that it should be so.
But does this mean that Government is bent upon enshrining the Treaty in a written constitution? This is the suggestion of Canterbury University law lecturer David Round, who sees very practical threats to democracy from such a step, not least of which handing Treaty-related decision making to the judiciary.
Advisory Panel Co-Chair Prof John Burrows QC says ‘no’, pointing to the diversity of the Panel’s membership and - perhaps less reassuringly for the advocates of a written constitution - to the reality that achieving consensus on anything was next to impossible.
But the assumptions and fears of the Advisory Panel’s critics are only natural in an environment where any discussion of a new New Zealand constitution is dominated by a handful of populist issues; issues as often as not leavened with a heavy dose of tunnel vision. Given this, Round and others might have good cause to think that the consultation process could be held hostage to headline debates and those who lobby loudest.
The ‘status of the Treaty’ is only one of the sacred cows of constitutional debate. The republican ‘ideal’ is another. Then, digging a little deeper into what some might dismiss as the ‘pesky’ detail of constitutional and political reform, is the status of the New Zealand Bill of Rights Act and whether it should enjoy any sort of supremacy in our law. Then comes the Parliamentary term, ‘waka jumping’ and whatever else might have been set in train in the popular media.
What’s missing in these instances of single-issue advocacy, be they for or against, is any sense of the overall whole. What does a uniquely New Zealand constitution look like? What are the checks and balances? Is a comprehensive written constitution in fact possible when making it all up as we go along has been the hallmark of our political tradition?
Addressing these bigger questions, implies Burrow’s co-panelist Sir Michael Cullen, is what the Advisory Panel is about: "We're here to drive a conversation and to report back to the Government on the content of that conversation, not to determine what the outcome should be at any point in the future.” Cullen says.
But can that conversation survive the issue-specific and too often superficial debates that already attend the process?
Our historical preference for incrementalism probably says that the odds are against a solid and holistic view. Expedience and political aversion to anything costly, complex and unpopular only reinforce the point, suggesting that the inevitable result of the review will be some tinkering on the side – the four-year parliamentary term perhaps, or dealing to the ever unpopular waka jumpers – and not a lot else.
But the Advisory Panel is travelling hopefully, identifying as its first task the education of the public about what the constitution actually is about. And if they achieve nothing else out of the exercise, that at least will be worthwhile.
The real risk, though, is that the process will simply mirror what has gone before; a process dominated by strong lungs and narrow interests, while the rest of us stay home.
The Panel will be holding public meetings across the country between February and July. Public submissions will then be considered with a view to recommendations being put before the Government by the end of the year.