"The hottest places in hell are reserved for those who, in a time of moral crisis, maintain their neutrality."

Dante, The Inferno

In every competitive sport, there is a referee; without one, the game would soon degenerate into a meaningless brawl. Parliament, however, has no real referee. The side holding the balance of power often makes pretty well any rules it likes; voters have sadly grown used to being lied to, betrayed, exploited and ignored, as if this were the natural outcome of the democratic system.

It's not the natural outcome of the democratic system. It's the natural outcome of a system which operates without effective rules.

None of this has to happen. It’s just that the political system lacks the checks and balances that we take for granted on the sports field and in the legal system.

The system I propose is based on the American constitution, together with the Universal Declaration of Human Rights, the New Zealand Bill of Rights, the South African constitution and others. I have drafted my constitution to deal with many of the problems inherent in those documents. One example is the lack of controls on American political electioneering, which has meant that the rich inevitably buy the outcome of any election and many ordinary people no longer vote. However, in terms of politicians and laws being accountable to the court system, America leaves New Zealand for dead. Countless attempts at betraying the legal principles of the American constitution have been overturned in the courts, regardless of what laws the politicians passed.

The great weakness of the New Zealand system is that it relies on everybody in Parliament to behave according to the rules, and without any real penalties if they don’t. New Zealand has ‘constitutional conventions’ which govern the manner in which government is conducted but they have no power in law and can easily be walked over by any political party which wins power. Even the losing party under the present system is free to cause untold harm to the nation before the new government can take power.

That’s exactly what Robert Muldoon did when he lost the 1984 election. He left the country haemorrhaging money overseas while he bickered over handing over the reins of power. Only prompt action by the Reserve Bank stopped the country plunging into financial crisis. Our Parliamentary system rather naively assumes that politicians will behave like gentlemen.

If we accept the notion that in a democracy the government should be elected by the majority of those voting, then our system does not come out well. Many governments over the last 30 years have taken or held power without the support of the majority of the voters either before or after the election. For example, in both 1978 and 1981 National retained power by manipulating political boundaries so that the government retained power even though the opposition had more votes.

Countless politicians have utterly betrayed election promises - with scant comeback for the voters other than replacing one set of shysters with another at the next election.

MMP was supposed to solve many of the problems inherent in the two-party system, but it has so far failed to deliver simply because there is no effective legal way of making the politicians do what they promised.

The obvious requirement for a democracy - that the government of the day must reflect the will of the voters - will remain a dream until the will of the people enforces effective controls on those who govern.

The argument that governments exist to govern and that upon taking power they should make their own rules, doesn’t wash. If a car salesman tells you that vehicle he is offering has a new motor, but it blows up a week after you buy it, there are legal remedies. Yet if a politician lies his way into Parliament, the best you can do is try and extract some revenge later. This is not an adequate solution.

Take the example of the Robert Muldoon government: a central plank of Muldoon’s attack on the 1972 Labour government was his stated concern over Labour’s overseas borrowings, which, he said, were threatening to the bankrupt the country. Muldoon, who was a far slicker TV politician than the lacklustre Bill Rowling, swept into power. Having gained power, Muldoon then set new records for overseas borrowing, signing the country’s future away on a series of largely disastrous ‘Think Big’ schemes which left the country in serious financial trouble. Many of our country’s current financial problems are a direct consequence of Muldoon’s uncontrolled spending.

At the next election the vote was split by Social Credit, and with the classic madness of the first-past-the-post system, the protest vote against the government helped the government stay in power with less than half the vote.

Finally, at the 1984 election the voters threw Muldoon unceremoniously out of office. This was no real compensation for the people of New Zealand. The damage was done.

My constitution was designed specifically to stop the likes of Muldoon from abusing their power while in office. It is the first constitution of its type which places specific requirements on politicians to tell the truth, and gives voters the ability to block legislation which is contrary to what was promised. This is rather new territory legally, and at first I assumed that it was not possible to enforce legal controls on political promises. Then I thought: why not? It’s done in business all the time. I’m not talking about a politician promising to build 1000 houses and only building 900. I’m talking about a politician who promises to lower taxes and then ends up raising them. Or a politician who promises not to go into coalition with a party and then does so. Specifically, I am referring to politicians who do a policy U-turn for political expediency.

It is worthy of note that my constitution would not stop politicians raising taxes or going into treacherous coalitions; rather, it would stop them raising taxes or going into treacherous coalitions without the approval of the voters. That’s the essence of the democratic process. If a party promises to lower tax and then gets into power and wants to raise it, that’s okay, but the voters must get a chance to accept or reject the measure first.

It would not make the country unstable or ungovernable; it would make life a misery for politicians who lied. My constitution does not allow every piece of legislation to be the target of a thousand lawsuits; it allows the challenge of legislation where there a clear breach of a promise expressed or implied before the election.

Politicians are extremely touchy about being controlled by the courts, and doubtless many will claim that my proposed controls via the legal system will end in chaos. I disagree, and so will anyone who thinks about it for a moment. When any businessman makes promises in a contract, he does so knowing that he may be taken to court if the promises are not met. Why should a politician be any different? There will always be disputes over what was promised or offered. However, the commercial system would simply collapse if there weren’t legal remedies to counter breach of contract.

Again why should politicians be exempt from being legally forced to tell the truth about their intentions? It’s absurd.

What will happen, I predict, is that after a few high-profile cases, politicians as a whole will simply stop making extravagant promises before an election. Within a short time, the extravagant promises will be replaced by those which are rather more cautious and realistically-costed. This will mean that voters have a much better chance to approve or disapprove of a political strategy before voting for it, and in the event that it goes wrong, to do something about it.

There is, however, more to a constitution than keeping politicians honest. It must also protect every person from arbitrary tyranny. Pensioners and widows must be protected, both against criminals and overeager politicians intent on balancing the books at the expense of the weak and powerless.

I write this introduction with a knot of tension in my gut, because I am well aware that it will probably be attacked from all sides. Good. At least the issues will be publicly debated.

In a number of areas (such as in the commentary on the environment) I have written very generalised statements of principle which will require High Court clarification later on. This is quite deliberate and I ask the reader to think 100 years ahead; are the ecological solutions of today going to be practical one century from now? It’s hardly likely.

What is important is that some clear ground rules get laid down now which can be interpreted and refined as time goes on.

It’s worth noting that the US constitution is also decidedly vague in many of its principles; they sound fine, and yet it is really the excellent work of the US Supreme Court in interpreting the constitution over 200 years which has given it a meaning and soundness that continues unabated in the age of computers.

As one commentator put it:

"The Constitution’s framers never corresponded with one another via e-mail or conducted research on the world wide web. Human embryos were not cultured in a Petri dish and placed in deep freeze. There were no respirators to switch off. Social policy concepts like affirmative action and diversity held no meaning in a world where only white men attended college, owned property, or voted in an election. Yet the framers managed to create a governing document that continues to define the ground rules and set the parameters for an increasingly complex set of political, social and economic issues brought about by technological and cultural transformations [inconceivable] two hundred years ago."

Technology and social systems grow old quickly; good principles age well.

In other areas of my constitution I have been extremely specific. This is because in most of these cases I have significantly modified an existing system, and the differences are important.

An example of this is the section dealing with the appointment of judges. It seems to me that the present system is wide open to political manipulation, and the fact that our judiciary is largely still a group to be proud of owes nothing to the politicians. As surely as the sun will rise, under the present system some shyster government will one day start stacking the High Court with political hacks (Richard Nixon attempted the same with the US Supreme Court). All that would be required then would be the elimination of the Privy Council as a court of final appeal, and the judiciary would inevitably become as tainted and compromised as the political system from which it arose.

The Citizens’ Charter will doubtless raise a few smiles and eyebrows; many will view it as hopelessly idealistic. However, once more, there is a very practical reason behind it which requires some explanation:

The people who wrote the American constitution were all well-educated, middle-class males who grew up under the heavy shadow of European economic and social tyranny. They knew all-too-well how poverty and oppression can turn a man to crime and alcohol. They assumed that when the tyranny was removed, crime and substance abuse would all-but disappear as an ideal society emerged from the free enterprise of each good citizen.

This was a rather naive view. History has shown that many people at the top and bottom of the economic heap have a scant respect for democracy, except where their own rights are being ignored; if the opressed are fortunate enough to gain power, they will often quickly inflict the same tyranny onto their enemies as they themselves endured. The African democracies are a rather sad example of this phenomenon.

Many of the wealthy and the very poor in all countries don’t see themselves as part of a society as a whole. The rich tend to view themselves as being above the political process and will often not hesitate to use their wealth to cheat. An example of this was the recent Winebox inquiry where a group of wealthy tax evaders threw every possible legal spanner into the works of the inquiry into their activities. Winston Peters deserves credit for pugnaciously pursuing the issue until the truth came out.

At the other end of the scale the very poor often tend to see society as a big, formless thing which is their natural enemy. Their purpose (as far as those at the very bottom of the heap are concerned) is to keep out of the way of the government agencies as far as possible, and to get as much as they can from the world by any means available to them. They have no long-term plans, they do not vote, they have little idea how society works, many are virtually unemployable, especially in a world where the unskilled have little future. They have little education and see no fault in this; as a consequence they provide little in the way of useful support for their children’s education.

This is in no way intended to denigrate the majority of poor people who work hard to nurture and protect their families. However, any world view which sees the rich as tyrants and the poor as innocent victims fails to grasp the reality of the situation.

The provision of reasonable social welfare and accessible education is an absolute right of every citizen. However, it’s not a one-sided thing. The provision of social welfare and education carries with it the duty on the part of the recipient to make good use of it, and the nation as a whole has a specific right to expect people to make the appropriate changes in their lives to help themselves. The best example I can think of occured at a South Auckland block of flats where the Housing Corporation sent servicemen around to install smoke alarms but some tenants wouldn’t let the servicemen in. Couple this with the fact that the lower working classes have a virtual monopoly on fatal fires caused by children playing with matches, and it’s easy to see that we have a problem which goes way beyond the poor merely having less or more money.

The rich are quick to point out that the poor are often the architects of their own misfortune. However, when both the rich and poor talk of wealth, they talk about money, and both sides miss seeing the real poverty of the poor — the poverty of viewpoint. The poor have some options, but an option is only open to you if you are aware of it.

The purpose of social welfare is to ensure that people will not suffer because they lack material security; one purpose of accessible education is to help people avoid needing social welfare. The duty of the State is to protect and nurture its citizens; the duty of each citizen is to nurture and protect the State.

The Citizens’ Charter was based on - as close as it is possible to achieve - some kind of universal understanding of the role of each adult in the modern world. It has always been a pleasant surprise to me how few major disagreements there are between cultures over the ideal citizen, regardless of how hard we have to struggle to achieve the ideal. In each culture, there are distortions caused by poverty and historical suffering, but in essence, the Citizens’ Charter reflects the views of the vast majority of people of all cultures and socioeconomic groups whom I have contacted - as it should, because it’s really just a mirror-image of the Universal Declaration of Human Rights.

Thus, on one hand we have the Bill of Rights to protect the freedom and wellbeing of every individual, and on the other we have the Citizens’ Charter which is to some extent a Bill of Rights for the nation as a whole.

For example, suppose a street gang is using a state house as a base to buy and sell stolen property; are these people protected by the Constitutional guarantees of right to adequate housing? The answer is no, unless they modify their behaviour. The right to adequate housing carries with it the responsibility to act according to the principles of the Citizens’ Charter. A person’s rights under this Constitution carry certain duties towards the rest of society, namely the obligation to act according to universal conventions on acceptable behaviour.

On the other hand, when the members of that same street gang are arrested, they have certain inalienable rights to fair treatment. This is not merely because every human has a right to fair treatment by the State. The fact is, legal systems which deny basic human rights (such as many in the Third World) aren’t merely unfair — they’re also incredibly inefficient. Once you remove the obligation for the State to be accountable for the way it treats its citizens, you also remove the incentive for the State to work efficiently. Every detective in this country who investigates a crime knows that there is some bastard lawyer waiting to cross-examine him in court, and a judge who will probably not tolerate incompetence. These forces are a powerful incentive for police to investigate crimes well.

I wish to express my highest admiration for the efforts of Sir Geoffrey Palmer, whose groundbreaking work with the Bill of Rights set New Zealand down the path to a written constitution. However, in keeping with a dowdy New Zealand tradition of compromise, the Bill of Rights as adopted by Parliament is surely not what Sir Geoffrey envisaged; it can be overturned by a simple Act of Parliament and it contains no provisions to challenge other legislation, even where the other legislation expressly contradicts the Bill.

Further, it contains no mention of economic or social rights, despite the fact that the document upon which it is based — the Universal Declaration of Human Rights —is heavily focused on those same rights.

Anyone familiar with the Bill of Rights and written constitutions of other countries will recognise great chunks of those documents, woven into a patchwork quilt of my own. However, it would be wrong to suggest that my constitution is merely a collage of other people’s ideas; I have extensively rewritten and in some cases originated various parts. The sections on political accountability, for example, are my own because I could find no workable mention of them in any other document.

I implore the reader not to reject my ideas merely because they are unconventional; unconventional does not mean ill-considered.

This constitution took long time to write. This is partly because I suffer from a spinal injury which makes extended use of a keyboard very painful and I therefore have to spend a lot of time resting. I have thus had the time to think through the issues rather carefully.

The end result, while far from perfect, is a serious attempt at solving many of our political problems and easing the utter despair and contempt many people now feel for Parliament.

I am no lawyer; I have undoubtedly made errors and omissions in this first draft, for which I apologise in advance and which I undertake to amend in later versions.

There will, I believe, be a written constitution in New Zealand before too long, and I believe that the themes upon which I have touched will form the basis for it, regardless whether one word remains of my original version.

Clive Matthew-Wilson

January 2000