Three Waters bill, Covid fund allocation may be legal but not in spirit of democracy

Published in the New Zealand Herald (Auckland), 1 December 2022

At the risk of losing a few readers in this first paragraph, let’s start with a quote by a lawyer. To make it worse: by a German judge. Oh, and dating back to 1964.

If you are still with me, I am talking about the so-called “Böckenförde Dilemma”. It is named after the German constitutional judge Ernst-Wolfgang Böckenförde.

The dilemma is this: “The liberal, secularised state lives by prerequisites which it cannot guarantee itself.”

Let’s try some translation here, shall we?

The liberal, secular state is the state as we know it today in most developed democracies. It guarantees fundamental freedoms such as freedom of speech, of religion, of association.

The liberal state also provides rules for citizens to interact with one another, such as how to marry or do business.

Moreover, it specifies how the state is run, such as how judges are appointed and how Parliament makes laws.

These are all the rules by which the state operates. Mostly, these are written rules. Even in a common-law country like New Zealand, where there is no written constitution, there is plenty of (written) statutory and case law.

We often take all this for granted, but we must not.

According to Böckenförde, this entire state construction rests on a deeper foundation. And it is here that the dilemma arises: the state cannot control the foundation on which it rests.

Böckenförde wrote these words in the 1960s, not even two decades after the end of National Socialism. He would have considered how the Nazis extinguished liberal democracy in the Weimar Republic.

The Nazis got rid of the most fundamental protections of life, liberty and equality – despite them being listed in the constitution of the Republic. The Nazis beat Parliament into submission by banning all other parties. They made Parliament pass a law delegating all legislative power to their new government.

All of these changes occurred in an orderly, legal manner. However, as a result, the liberal state was abolished.

What was missing in the Weimar Republic was the foundation on which its liberal democracy rested. In the end, especially in the economic turmoil of the Great Depression, it was a formal democracy with not enough democrats. To defend itself against a totalitarian takeover, it lacked the constitutional spirit.

When looking at New Zealand today, what does Böckenförde’s dilemma mean to us? No one could accuse the New Zealand Government of approximating Germany’s National Socialist one. But are we in good constitution?

It depends on whether you are a glass-half-full or glass-half-empty person. There are two ways to look at it.

Pessimists would point out that New Zealand’s constitutional settings are under threat. The attacks may appear to be legal. Nevertheless, they undermine the spirit of our liberal order and are incompatible with it.

A Minister’s employment of a relative may have been legal, but it does not look good. It may be legal to rush two dozen bills through Parliament under urgency. Covid funds may have been legally allocated to other causes.

It may even have been technically legal to try to entrench a section of the Three Waters Bill.

But the question is not so much about legality in all these cases. The question is whether these instances are compatible with the spirit of a liberal parliamentary democracy.

Under that constitutional spirit, crown ministers should avoid even the appearance of conflicts of interest. Parliament should have a chance to consider legislation properly if it cares about parliamentary democracy.

Parliament will also ensure that people who submit comments on draft legislation have sufficient time to prepare them. In addition, Parliament will check that funds are used for the purposes for which they were allocated.

Remember the Böckenförde Dilemma: “The liberal, secularised state lives by prerequisites which it cannot guarantee itself.”

One of the prerequisites of the liberal state is the spirit of democracy.

There are things politicians should never do, even if they are legal. Because once they do them, they undermine the acceptance of our liberal democracy as a guiding principle. And once the foundation of democracy is eroded, a country will struggle even to maintain the formal rules of the democratic game.

However, there is an optimistic way of looking at the state of our constitution – or the constitution of our state.

When, over the last weekend, news broke that the Government had tried to bind future governments to its Three Waters legislation, it caused an outrage in the social media.

Constitutional lawyers, commentators and political activists joined the debate. They came from all sides of the political spectrum. They were liberal, they were left-wing and they were right-wing. And they were united in their condemnation of the Government’s actions because they were incompatible with the constitutional spirit.

This is a source of hope for our democracy. We still have enough democrats supporting the rules of the game, even when they sometimes run counter to our own party-political interests.

This is a glimmer of light in a generally depressing situation where we have recently seen far too many violations of the democratic spirit.

New Zealand has a good democratic system. With the right democratic spirit, our country will blossom as a true liberal democracy.