Where Is the Grass Greener?

In a recent article in Constitutional Forum, Peter Russell argues that Canada needs to imitate New Zealand by creating a Cabinet Manual that would, notably, contain an authoritative although not legally binding statement of the principal constitutional conventions, especially those that regulate the formation of governments. While this would, in prof. Russell’s view, have a number of benefits ― “[a] Cabinet Manual”, he writes, “can be a quietly evolving instrument for reforming the ‘unwritten’ part of our constitution” and increase political accountability ―  “the biggest benefit a Cabinet Manual would yield for our society is to increase the knowledge of citizens about how
they are governed” (98).

Meanwhile, in New Zealand itself, a former Prime Minister and inveterate constitutional reformer, Sir Geoffrey Palmer, is campaigning, together with one of the country’s leading lawyers, Andrew Butler, for the enactment of a codified constitution that would eliminate conventions altogether. A major reason they cite for their effort is New Zealanders’ ignorance of their constitution ― which the Cabinet Manual lauded by prof. Russell has apparently done nothing at all to dispel. (Note, however, that their proposed constitution would require the publication of updated versions of the ― presumably slimmed down ― Cabinet Manual every six years (s 25).) A codified constitution, by contrast, will do wonders to rectify this sorry state of affairs

Prof. Russell does not really explain how the existence of a Cabinet Manual will bring about the “increase [in] the knowledge of citizens about how they are governed” that he anticipates. He provides no evidence of its having done so in New Zealand, although he does confidently assert that “[m]aking the Cabinet Manual available on the internet was a giant step in increasing the constitutional literacy of New Zealanders” ― mostly, it seems, thanks to the wonders of hypertext. If Sir Geoffrey and Dr. Butler (as well as many of my colleagues here in New Zealand) are to be believed, prof. Russell is simply wrong.

For their part, Sir Geoffrey and Dr. Butler do not really explain how the codification of constitutional rules will change anything to the citizens’ ignorance of and lack of interest in these rules. They hope that a codified constitution that dispenses with conventions “will educate people and public decision-makers on their rights and responsibilities … and provide a better framework for learning about civics” (25). But they provide neither evidence that this can happen, nor examples that it has. Canada and Australia, with their partly codified and partly conventional constitutions, would seem to offer perfect natural experiments that can test their assertions: if Canadians and Australians are more knowledgeable or better educated about federalism, which is codified in their respective constitutions, than they are about responsible government, which is not, then Sir Geoffrey and Dr. Butler are right. Otherwise ― and although I have no empirical evidence, it seems to me that it is indeed otherwise in Canada ― they too are simply wrong.

In fact, the idea that an authoritative text ― whether legally binding or merely informative ― telling people “how they are governed” is going to achieve much of anything to educate citizens on this admittedly crucial issue is naïve. Consider the situation in the United States, with its revered Constitution (and, let us note, a very short constitution in contrast to the 40-page one that Sir Geoffrey and Dr. Butler are proposing, never mind the length of a Cabinet Manual). As Ilya Somin reminds us, “[p]ublic ignorance” there

also extends to the basic structure of government. A 2006 poll found that only 42 percent can even name the three branches of the federal government: the executive, the legislative, and the judicial. There is also much ignorance and confusion about the crucial question of which government officials are responsible for which programs and issues. (164-65)

Neither prof. Russell nor Sir Geoffrey and Dr. Butler explain how their proposals will ensure that their respective countries will avoid the fate of the United States. Prof. Somin, by contrast, does have an explanation for the phenomenon that he observes, which is that

[f]or most people, political ignorance is actually rational behavior. If your only incentive to follow politics is to be a better voter, that turns out not to be much of an incentive at all, because there is so little chance that your vote will actually make a difference to the outcome of an election. … For most people, it is rational to devote little time to learning about politics, and instead to focus on other activities that are more interesting or more useful. (166)

No Cabinet Manual, and codified constitution, can change that. But unless they recognize this fact, well-meaning reformers are bound to think, with no particular justification, that whatever system they have must be responsible for the public’s ignorance of the constitutional basics, and that whatever system some other country has must be the solution to the problems they see in theirs. So Canadians will propose imitating New Zealand, while New Zealanders will want to imitate, and indeed go further than, Canada. Yet while the grass may always be greener on the other side of the Pacific Ocean, the putrid flowers of political ignorance bloom on both.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

3 thoughts on “Where Is the Grass Greener?”

  1. New Zealand is an interesting example. With Britain’s slow march towards some sort of federalism, New Zealand is now one of the last unitary parliamentary democracies where Parliament enjoys the traditional parliamentary supremacy. If memory serves the only other parliamentary democracy where this applies is Israel, where the Knesset has the power to alter or revoke the Basic Laws.

    I wonder what the push towards a formal written constitution is. I know New Zealand has had its issues over the years, but I’ve never heard of it being an ill-governed country in need of major constitutional innovation. Obviously a federal state like Canada or the US, or what the UK is likely to become if Scotland remains, needs at least a basic constitution dividing the powers between the federal and the constituent jurisdictions, but New Zealand is a unitary state, so is not confronted with the same structural necessities.

    In some ways I would rather have a classic Westminster constitution. Yes, there’s the possibility of abuse, but even with that constitution, Britain marched steadily towards a modern liberal democracy without an entrenched Bill of Rights, and a lot of the messiness in Britain right now comes from what I would call a chaotic march to federalism.

  2. À vous lire sur un sujet intéressant mais pour lequel je manque de compétence, il me vient tout de même une question: l’idée d’éduquer les citoyens, de les rendre moins ignorants des choses juridiques n’est-elle pas un faux prétexte qui cacherait une tout autre intention ? Mettre le droit par écrit pour le rendre accessible à ses destinataires, ça fait bien longtemps qu’on connaît la chanson, si vous me permettez. Il me semblait acquis que cette accessibilité, aujourd’hui, n’était pas menacée par la forme d’expression du droit mais plutôt par sa complexité et surtout par la quantité de ses sources formelles. Bref, on peut si la proposition de mettre le droit par écrit ne poursuivrait pas un autre but qu’informer la population.

  3. Let me answer both of you, avec mes excuses à Édith pour une réponse en anglais.

    Palmer & Butler acknowledge that New Zealand is generally speaking a well-governed country without any pressing need for major constitutional reform. At the same time, it’s fair to say that a system so dominated by a unicameral Parliament, which in turn is dominated by the executive (despite the MMP electoral system ― our wannabe reformers should take note!) leaves the door open to abuse. There have been cases of major legislation rammed through Parliament in a day, and other instances where what Waldron calls “legislative due process” was not respected. So one can understand the desire to strengthen some existing protections, and even to introduce new ones. Whether the costs of an entrenched constitution are worth incurring for it is a more difficult question of course.

    At the same time, there are other reasons for their efforts, some acknowledged and some maybe not. I wrote a post (https://doubleaspectblog.wordpress.com/2016/09/06/why-do-the-write-thing/) where I discuss the reasons Palmer & Butler invoke. I do not find them persuasive, for the most part. I don’t address the symbolic reasons, because I think it is not my place to do so for a country in which I am so new, but I suspect they matter a lot. Whether many other people here will find them as compelling is an open question of course. I don’t know that there has been much political uptake for this project so far―it’s still very much a private initiative. And speaking of this, there are personal reasons, no doubt. For Sir Geoffrey, constitutional entrenchment is something of a life-long cause. He tried to bring it about with what became the New Zealand Bill of Rights Act, and did not succeed. This is another (and perhaps the last) kick at the same can, although with even more ambition.

    Anyway, we probably shouldn’t make too much of this, or at least you shouldn’t. It’s probably the most exciting thing happening in the constitutional realm in NZ at the moment, so I have to entertain myself as best I can. But we can still look at this project as an illustration of more general truths about constitutionalism.

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