Facilitating Constitutional Change
Keith Rankin, 1 August 1998
Constitutional change is a serious matter. Our political, economic and social systems cannot work properly if the rules which give them structure are forever changing. We don't need certainty in our policymaking or in our economy, but we do need a certain amount of certainty with respect to the rules which govern the political system.
Having said that, we also need means to ensure that constitutional change does take place, at an appropriate (ie slow) pace.
The talk about having another referendum on our electoral system as early as 2000 (eg "Shipley to throw weight behind MMP referendum", NZ Herald 1/8/98) is very worrying, because it suggests that we are getting into a habit of blaming our constitutional rules for every political event which some people (often people with agendas) say is bad. There is a real danger that we could talk ourselves into returning to an electoral system that was defeated in not one but two referendums in the 1990s. Certainly, the National Party sees votes in 1999 in making a promise to hold a third referendum on the FPP ("first-past-the-post") voting system.
While we got ourselves into a lather of angst in 1997 because proportional representation was not doing what it was supposed to do - it seemed to deliver us a government determined to impose a policy agenda impervious to opposition views - it is in 1998 getting some of us into a stew because it IS doing what it was meant to do - forcing the government to seek support outside of its own ranks before passing legislation. Overall, by any objective assessment, MMP has forced government MPs, kicking and screaming, into a real democracy. Our problem however, is that we don't like watching MPs kicking and screaming when they cannot get their own way. We are inclined to give them what they want, if only they would shut up. Government MPs, it would seem, leave two-year-olds for dead when it comes to having manipulative tantrums.
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I would like us to adopt the following rules re constitutional change: (i) That there be one and only one constitutional referendum every decade; (ii) That, at least two years before the date of the constitutional referendum, there be a referendum to decide which issue will be the subject of the constitutional referendum; (iii) that the selection of constitutional issues be made by a body independent of the government, and should include all contentious constitutional issues with the exception of issues decided in the previous two referendums; (iv) that no rejected proposition can be put before the people for a second time within a single generation (eg within 25 years). Indicative referenda like the 1997 one on compulsory savings would be exempt from this rule, because they are referenda on policy, not on constitutional law. All constitutional referenda would be help in conjunction with a general election, unless, that is we abolish general elections as we know them today (see below).
Point (i) ensures a process for ongoing constitutional change, while ensuring that there is not too much constitutional change.
Point (ii) ensures that the people decide what constitutional question is most important to them. And it ensures that we have no more silly referenda such as the 1990 referendum which asked us if we want a four-year electoral term. There was no groundswell of opinion for that referendum, and, 8 years on, few people remember us ever having had it.
I would like to see the referendum to decide which constitutional issue is to be put to the people, to be decided by a form of modified STV (single transferable voting). Let's assume that 10 issues are on the ballot paper. Voters would select their first, second and third preferences. Where voters' first preferences are eliminated, their second preference is counted. If that is also eliminated, their third preference is counted. This process will ensure that the issue selected is one of concern to a wide range of people.
Point (iii) ensures that a dominant constitutional issue cannot be left off the referendum agenda. One way of ensuring objectivity is to ensure that each party represented in Parliament gets to select an issue. There should be no repeats. In the case of the 4-year term issue, the question had been put previously in 1967. I would argue that even 23 years is too short a time for a repeat referendum -point (iv). It takes a generation for a new culture to fully develop around an item of constitutional change as significant as the adoption of MMP. I therefore believe therefore that the earliest year that we should consider having a referendum to adopt an electoral system other than MMP is 2018.
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I would like the following referenda to take place in say 2005, 2017 and 2026:
The MMP legislation of 1993 failed to get rid of one central component of the rejected FPP system. It retains the FPP system for electorates. Therefore, many candidates who become electorate MPs cannot claim to have been directly voted into Parliament. Many received less than 50% of the valid votes cast in their electorates. They made it into Parliament on account of the way votes for other candidates were distributed.
The bigger problem relates to issues that cropped up in Wellington Central and Ohariu-Belmont in 1996; the issue of standing down candidates so as to facilitate the election of a friendly candidate from another party. This is particularly important because of the 2% party threshold that operates where a party has an electorate MP. It will be important in Coromandel next year, and probably a number of other seats (eg Whangarei). This years Taranaki-King Country by-election was a bit of a farce with the coalition partners standing candidates against each other, potentially to the detriment of the government.
If preferential voting is used for electorates, then there will be no need for parties to use this tactic of standing down candidates, or of giving only partial endorsement to their own candidates (as the Alliance seems to be doing by telling voters that it's fine to vote for a Labour candidate so long as the Alliance gets the party vote). Since c.1950, not contesting seats has become a no-no within our political culture.
So I would like to see a referendum in 2005 on the question that Australian-style preferential voting be adopted for the election of electorate MPs.
In around 2017, I would like to see a revisitation of the 4-year term issue. But I would like it to be linked to a regionalisation of elections and party lists.
My proposal would effectively end the concept of a general election. I would like to see a regional election scheduled for the first Saturday of every December. Such elections would replace all nationwide elections. There would be no snap elections.
The proposal is has some similarities to the American system, whereby some but not all seats in the Congress and the Senate are contested every two years. But the American system is not regional.
I would like New Zealand to be split into 4 electoral regions: south, central, north, and Maori. There would be an election for one region every year, and every electorate and list MP would be elected for four years; ie until it was the turn of that region to have another election.
The advantages of this system are several: (i) a non-performing majority coalition can be tipped into a minority coalition at the end of any year; (ii) elections are sufficiently frequent that governments cannot adopt cyclical "election-year" behaviour; (iii) voters are not called upon to vote any more often than they wish to. In our political culture, while the four-year term was rejected in the FPP context, the electoral term is generally seen as a minimum as well as a maximum - we don't like too many elections; (iv) South Island voters will get to vote for South Island lists, Auckland/Northland voters will get to vote for a northern list, and Maori voters will get to vote for a Maori list; (v) each regional election will ensure that regional issues as well as national issues are taken seriously. In effect each regional election would be like a super by-election; (vi) December elections will act as the people's "report cards" on their government; (vii) elections in December will make it difficult for governments to introduce major policy announcements in the last few days before Christmas. We remember all too well 17 December 1987 and 19 December 1990.
In say 2026, we might want to have a referendum on MMP. I would favour a choice between the two most favoured electoral systems in 1992; MMP and STV.
In 1992 I voted for STV, believing that it gave more opportunity for individualism and a lesser role for the parties. Since then, I have come to favour MMP as the best electoral system for a national government, whereas I think STV is best for city councils.
I favour MMP over STV for two reasons. The first is that STV favours personalities that are well-known to the public. Hence STV may lead parties to choose media-savvy people over those who are capable of doing the "hard-yards" on policy issues. Furthermore, most of the "side-shows" that have diverted the media's and hence the public's attention away from policy issues are in fact issues about personalities rather than about parties. A personality-driven system that sees candidates competing directly against other candidates from the same party - as STV does - can only increase the numbers of side-shows.
The second reason for favouring MMP is that it creates an environment in which mass party membership is encouraged, and in which the selection of party lists becomes a kind of primary election, as in the American system where, for example, registered Democrat voters elect the Democratic candidate for President. It is right that people of each philosophical persuasion should elect the candidates to represent their philosophy in Parliament.
Parliament is the House of Representatives. We need to be represented in two ways: (i) geographically, and (ii) philosophically. A representative parliament must represent both our community of residence and our community of interest. Our local MP, regardless of party affiliation, represents all local constituents. Our parties, on the other hand, provide representation for our communities of interest. Parties are in fact an essential part of the democratic process in a society larger than a small-medium sized city. They ensure fair representation without voters having to know each candidate's personal views.
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Obviously other people will have their own distinctly different wish-lists for constitutional change. What matters most however, is that constitutional change does happen, but happens slowly. We can live satisfactory lives with imperfect constitutional rules if we know that our political constitution is stable. The MMP electoral system, whether or not we believe it is the best possible electoral system, will bring many more benefits to us if we simply accept that it is here to stay for at least a generation, and plan for the future with that knowledge. We should stop blaming every alleged political blunder or side-show on our new electoral system.
When the time comes for another constitutional referendum, we should all be able to put in our bids. And then, if the question we want put to the people is not the one that is chosen, then we should be happy to bide our time, knowing that another opportunity will come up to address that issue. We should be mature enough to accept that democratic decisions often represent personal defeats, and defeats for the party that we identify with.
Constitutional change should not be triggered by events as trivial as the price of a new MP's underpants. Yet, when it comes down to it, it is exactly that matter that has triggered a media response that has created a derisive attitude to the junior coalition partner that in turn has led people to tell pollsters that they do not like MMP. The present climate is precisely the kind of political climate in which constitutional change should not be considered.
Suicide is typically a long-term remedy for a short-term problem; a wholly inappropriate remedy. Kneejerk constitutional change is like suicide; a terrible mistake. Constitutional change, like suicide, should always be thought of as permanent, and not as an experiment.
The lead-up to the change in our electoral system in 1993 was long, considered, and appropriate. It was a necessary constitutional change, given the manifest failure of the former system. Less than 200,000 people were willing to go to a polling booth in 1992 to express support for the old "first past the post" electoral system. Let it rest in peace.
© 1998