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Graham, Kennedy --- "Book review: 'the constitution of independence'" [2005] CanterLawRw 13; (2005) 11 Canterbury Law Review 283

BOOK REVIEW

THE CONSTITUTION OF INDEPENDENCE

by Peter Oliver

Oxford University Press, Oxford (2005) 367pp.
AU$170 ISBN0198268955

Kennedy Graham^[*]

Peter Oliver's study of the development of constitutional theory in the three Commonwealth countries with broadly similar colonial experience (Canada, Australia and New Zealand) is timely and cogent. The book explores the manner by which the three 'well-behaved' dominions acquired constitutional independence - in anticipation, execution and explication. While other 'tearaway siblings' (Ireland, South Africa) had taken matters in hand and achieved 'constitutional autochthony', these three countries (hereafter CANZ) determinedly showed respect for existing legal rules. Oliver's brief is to explain how, and why.

Oliver distinguishes constitutional independence (the ability to determine the constitutional rules in one's legal system) from political independence (decision-making capacity regardless of legal rules) and 'international independence' (foreign perceptions of one's capacity and actions). Whereas the latter forms of independence were achieved far earlier, the three dominions acquired constitutional independence only in the 1980s. Oliver's purpose is to trace the legal theorising and associated enactments that led from colonial days of the 19th century through to the final surrender of legal appeal to the British-based Privy Council in the early 21st century. The Balfour Declaration of 1926 and the Statute of Westminster 1931 (UK) accorded a degree of practical independence, but were never likely to be a satisfactory peg for full and permanent constitutional independence. Was there an alternative conception of sovereignty which could support a credible account of the evolution of imperial and local legal systems? Is it theoretically possible to meet both goals - respect the rule of law through constitutional continuity while achieving constitutional independence? Oliver's answer is that it is 'certainly possible'.

In charting the constitutional development of CANZ, Oliver also seeks to illustrate how theories of sovereignty interact with concepts of a legal system. The fundamental choice is between orthodoxy ('continuing sovereignty') and innovation ('self-embracing sovereignty'). Orthodox understandings of parliamentary sovereignty have the 'supreme parliament' (in the British firmament) at Westminster empowered to pass any law which no other institution or court can over-ride. While this 'conveniently accounted for' the original constitutions establishing the three colonies/dominions, it bequeathed difficulties for the ultimate granting of constitutional independence. Independence enactments were valid law but could never bind future parliaments and were thus eternally subject to potential repeal.

The Dicey-Wade understanding of absolute and continuing sovereignty implies that, so long as constitutional rules are followed, only one legal system prevails, namely the imperial system presided over by the Westminster Parliament. Any break in this rule-following could achieve independence, but only through a 'disguised revolution' or the adoption of a new basic norm and legal system. In this view, it is impossible to attain the dual goal of continuing law and constitutional independence. This view was so dominant that legal theorists in the Empire and subsequent Commonwealth struggled to explain how a central legal system could legitimately fragment into many independent legal systems. If such orthodoxy applied a straitjacket, then 'revolutionary' or 'extra-legal' explanations of constitutional independence were required for CANZ. Oliver explores the common but differentiated ways in which the trio achieved this. These rest on an alternative to the absolutist view, namely, Hart's 'self-embracing sovereignty' through which Westminster's powers include the capacity to impose limits on itself. While this had hitherto been understood to be legally prohibited, the argument was advanced that the Parliament had 'unused' and therefore hidden powers of a self-embracing nature that could allow self-limitation, as indeed were exercised in 1972 when the UK joined the EU. In similar vein, Westminster successfully limited itself in terminating its ability to legislate for CANZ in 1931. While this approach is 'closer than ever' to being accepted today, this was not the case as recently as the early 1980s when constitutional independence was sought (and when, for example, Canada acknowledged Westminster's powers to be 'unlimited, untrammelled and undiminished'). A third approach distinguishes the 'core' from the 'penumbra' of legislation, positing that in respect of the latter some hypothetical legislation would be judged inoperative by the judiciary. Or, in the unlikely event of Westminster purporting to legislate for CANZ today, such an act would be declared inoperative by their legislatures or rejected by their courts. A situation would then arise of separate legal systems maintaining different perspectives of the same objective fact, i.e. the constitutional independence-conferring act of Westminster - a strange and unsatisfying result. Each of CANZ has in fact followed its own distinctive route to constitutional independence, and each is treated systematically by Oliver (three chapters for Canada, two for Australia, one for New Zealand). New Zealand's 'disguised revolution' acknowledged the uncontested sovereignty of the Westminster Parliament until 1986, and then simply based its own act of sovereignty on 'acceptance by the people of New Zealand' sans referendum - a claim that has raised a few eyebrows. Australia's actions were rather 'extra-legal' in resting on historical political fact - the original constitution having been drafted and ratified by Australians themselves in 1900 - with the 'twin horses' of Westminster and popular sovereignty running in parallel until 1986, the rider jumping from the former to the latter in that year - an appropriate enough metaphor. Concern for the rule of law was most prominent in the case of Canada with its search through half a century for a politically-acceptable constitutional amending formula, ending in patriation of the constitution by the federal government and parliament. The methods of choice are succinctly captured by Oliver as, respectively, inter-societal acceptance, popular sovereignty, and international recognition. Oliver's study is thoughtful and exhaustive. If there is any criticism to be advanced it concerns the treatment of the Grundnorm, the basic normative principle or belief on which all other norms can be validated - the underlying basis for any legal system that resolves the dilemma of eternal regression. In his conclusions, Oliver recognizes the standard theory that the force of a by-law anywhere follows a chain of 'legal validity' leading upwards in constitutional terms and backwards in temporal terms to (a) the state, province, regional and national authority; (b) the Constitution); (c) any previous Constitution; (d) the body which enacted the first Constitution; and (e) so on (in the case of customary or common law constitution) 'into the mists of time'. In most legal systems, he says, the recursive analysis comes to a halt at (d). Whether stopping at (d) or (e), we eventually run out of links in the chain of validity, so (f) we take the final step of presuming the validity of the first historical Constitution. Here we have reached the basic norm, or Grundnorm.[1]

Yet in his introduction, Oliver has also recognized the dilemma of resting the Grundnorm of a transplanted English legal system on the basis of 'settlement' or 'discovery' - a particularly acute dilemma in the case of Australia, parts of Canada and perhaps New Zealand's South Island. Current recognition that aboriginal peoples not only inhabited but also governed these lands in pre-European times is, Oliver acknowledges, 'relevant' to re-examination of constitutional theory. But that re-examination, he explains, takes place within a legal context where the existence of a settler-created legal system is already taken for granted, at least as a matter of (settler) law.[2] Declining to explore the significance of chthonic law as a Grundnorm in the Canadian, Australian and New Zealand mists of time is a stark omission of the study. While this issue is beyond the stated aims of Oliver's book, it haunts his analysis like Hamlet's ghost. No special legitimacy will be found in bypassing Te Whero Whero for King Arthur. 'The Constitution of Independence' should become required reading for students of constitutional law and perhaps history in the three countries concerned. But does its content matter to the citizenry in the 'real world' ? The implications of such issues are, in fact, of more than passing significance to the individual citizen. The constant flux in legal theory carries implications for both constitutional law as it affects a state's internal sovereignty and international law concerning its external sovereignty. To take an internal issue first. A sustainable consensus over constitutional foundations is of fundamental import for societal stability, even in the three 'stable' dominions. And it is illusory to suppose all constitutional issues for the three independent constitutional monarchies to have been settled. The head of state, for example, is the same individual for Britain and all three CANZ countries yet her formal title and functions differ. In England she is Defender of the Faith which, by virtue of her role as Supreme Governor of the Church of England, is the Anglican Church. Yet in Scotland she is simply a lay member of the Presbyterian Church. The churches of England and Scotland are the only two established churches in the Commonwealth. Elsewhere in the Commonwealth, Canada and New Zealand are alone in taking their Queen as 'Defender of the Faith'. But which faith? Although it is not explicitly emblazoned anywhere, it is understood to be the Anglican Church in New Zealand by virtue of having inherited the 1700 Act of Settlement between England and Scotland.[3] Some 13 Commonwealth countries retain Her Majesty as head of state but not as Defender of the Faith. Jamaica, on independence, briefly regarded her as 'Defender of Faith' - a subtlety that the current Crown Prince is on record as favouring for his putative reign.

For Britain and New Zealand, then, the head of state may be unable to this day to marry a non-Christian or non- Anglican - a clear breach of universal human rights standards that are binding in domestic law in these countries.[4] So there is still some way to go to iron out the historical wrinkles of the head of state's title and role in New Zealand.

The implications are of perhaps more immediate moment for today's citizenry in terms of a country's external sovereignty. As Oliver observes elsewhere, the external and internal perspectives are closely related in practice but much confusion arises as a result of not distinguishing the one sovereignty from the other.[5] There is a risk of such confusion increasing under the relentless effects of regionalisation and globalisation, with constitutional and international law entering an uncertain and potentially tense marriage. To take an example at the regional level, sovereignty is an issue for integration movements which are of importance almost everywhere. The European Constitution, which will yet descend in new avatar form, carries far-reaching implications for the relationship between the President of Europe and the twenty-five national heads of state. As Oliver puts it, many sovereign legal systems have begun the process of surrendering some of their 'sovereignty' in order to create the EU, an entity which is acknowledged to have the characteristics of a separate legal order, involving a transition from many legal systems into one. For the moment Europe finds itself in a period of 'centripetal uncertainty', not dissimilar to that which was experienced centrifugally with the Commonwealth. In both cases the 'supremacy of sovereignty' is at stake. In the EU context, 'self-embracing' change allows a Member State to accomplish the process of conferring power on European institutions by means of its supreme constitutional powers and relinquishing some of its claims to 'hierarchical superiority'.

In the early 21st century, political change has become so fluid yet fundamental that the very use of the concept of 'sovereignty' is problematic for an insightful understanding of constitutionalism. As one of New Zealand's authorities has recently put it:

The translation of political power into constitutional language draws on the magisterial doctrine of parliamentary sovereignty. This sleight of hand enslaves constitutional debate and forces closure on argument about political-judicial relations. ... parliamentary sovereignty is a latter-day myth perpetuated by our habits of lazy thinking. Parliament has never been sovereign.[6]

It is significant that the European Constitution, signed in 2004 by all 25 heads of state/government and ratified to date by 13 member countries (and rejected by two), makes no reference to the concept of 'sovereignty'. Rather, member states 'confer competences' to attain common objectives. The time is approaching when national competences in agriculture, fiscal and monetary policy, and ultimately foreign and security policy, will cede to regional competences. The fact that in some areas this has already occurred (through 'disguised revolution' ?) is the principal driver of French and Dutch rejection of the constitution. Sovereignty in the traditional sense is a concept whose shelf-life may be approaching a natural end. The idea of 'layered jurisdiction' between local, provincial, national, regional and global levels is becoming increasingly accepted, albeit more readily in political circles than legal. Oliver's term 'shared sovereignty', its oxymoronic qualities notwithstanding, is applicable to these broader global scenarios. It is relevant to our own region, where the Pacific Islands Forum is about to consider adopting a basic legal document to govern its activities henceforth. Thirdly, the significance of constitutional theory for the 'real world' carries through, even if less strongly, to the global level. The UN Charter was signed by CANZ in 1945, when they were not yet fully independent (as indeed was the case with the League of Nations Covenant in 1919). Leaving aside the question of their plenipotentiary powers at the time, the fact is that all three assumed binding obligations to, inter alia, allow rights of passage by foreign military forces across their national territories during collective enforcement action. It would be difficult to imagine a more far-reaching 'sharing' of sovereignty. Is this binding on successive Parliaments? The UN Charter makes no provision for withdrawal by any Member State, only suspension and expulsion by majority decision. Indonesia once walked away but returned, its 'withdrawal' never having been acknowledged. Would New Zealand's 48th Parliament possess the sovereign authority to withdraw from the United Nations? Probably not - at least in terms of international recognition. It was 'bound' by the 27th..Competing sovereignty between national and global authority will be the overarching theoretical issue for the 21 st century, already manifest in several forms. The new doctrine of international 'responsibility to protect' against genocide that over-rides an impregnable national sovereignty was endorsed by world leaders in September 2005.[7] The legal right to withdraw from the NPT has effectively been usurped by the Security Council summit declaration of January 1992 and subsequent political events .[8] And a general tension is intensifying between the United Nations whose Security Council holds collective enforcement powers for the preservation and restoration of peace, and the United States whose latest national security fears and overwhelming military power have conflated into a critique of the UN's legitimacy. What kind of global governance is desired? Is 'sovereignty' at this level to be of a multilateralist or unilateralist persuasion? Where do legality and legitimacy intersect at any one point in time? Within this intellectual and policy ferment, New Zealand stands relatively secure. Among the three CANZ countries New Zealand has pioneered certain aspects of constitutional independence by virtue of its simpler political structure, while at the same time displaying the strongest instinct for the status quo at any one time. It took 101 years to abolish the Privy Council after it was first mooted by a chief justice. In mid-twentieth century its reluctance to see the Statute of Westminster even concluded, or to implement its provisions a decade later, is well-known. The desire to let sleeping constitutional dogs lie remains as strong today as ever before. In 2004 the NZ Parliament established a special committee to review the country's existing constitutional arrangements. Its brief was to identify the country's constitutional development, the key elements of its constitutional structure and their inter-relationships, its constitutional sources, and the appropriate processes in the event constitutional reforms were considered in the future. The future conditionality of its prescriptive remit ensured the performance of a modest task at a measured pace. True to form, the Committee returned a modest and measured report. Its recommendation to Parliament was that it 'consider developing' a capacity to ensure that changes with constitutional implications be specifically identified and dealt with as they arise in the course of parliament's work. Its key recommendation to Government was that some 'generic principles' should underpin all discussions of constitutional change in the absence of any prescribed process.

The Committee was clearly keen to avoid rocking the 'foreshore boat' in a sensitive pre-election period. It concluded that the lack of consensus on what is wrong with the Constitution, and how or whether it could be improved, meant that the costs and risks of attempting significant reform could outweigh those of persisting with current arrangements. It suspected that this was the view of most societies in 'normal times'. The process of embarking on a discussion of possible constitutional change might itself 'unsettle the status quo'. Attempting to achieve some sort of consensus even on the key events that had formed New Zealand's constitution was 'not warranted'. 'Pragmatic evolution' was the characteristic quality of the country's constitutional history - the people's instinct to fix things only when they needed fixing and when they could fix them, without necessarily relating them to any 'grand philosophical scheme'. In New Zealand's case, there was nothing to suggest that a constitutional crisis was 'around the corner'. There was no urgent problem with New Zealand's constitutional arrangements. Dissatisfaction with such arrangements was 'chronic rather than acute'. Yet despite this, there existed constitutional issues that would need to be addressed in the future. These merited more public understanding and discussion. This compares with the ferment of constitutional renewal underway in the Pacific neighbourhood where the Westminster model has been planted in more rugged socio-political terrain. Within Papua New Guinea, a constitution has been written for Bougainville to reflect its unique status in a post-conflict situation. The Solomon Islands is considering a federal model. A parliamentary committee is enquiring into the Constitution of Fiji. The Nauru Constitution is under review. A constitutional convention is meeting in Palau. Proposed amendments to Vanuatu's Constitution are going to referendum. The constitutional status of Tokelau and Niue is under discussion. And in the broader political realm, change is intensifying in ways that will inevitably impact on constitutional development in Tonga, New Caledonia and French Polynesia.

In none of these countries and territories could it be said that a lack of consensus on what might be wrong, and how or whether it could be improved, meant that the costs and risks of attempting significant reform could outweigh those of persisting with current arrangements. What has prompted such constitutional activism by otherwise cautious Pacific peoples? A recognition that societal strains need to be addressed through constitutional clarification before 'normal times' abruptly transform. It is a profound self-deception to suppose that constitutional change is unnecessary until normal times lapse. Abnormal times tend to foreclose on peaceful constitutional change. Fiji's coup of 1987 and PNG's secessionist problems of 1992 may or may not have been averted through prior constitutional moves, but they certainly occasioned subsequent reviews in more difficult circumstances. When 'chronic' becomes 'acute', it is too late. New Zealand's committee knows that 'constitutional issues' will need to be addressed in the future, and believes that such significant change must 'proceed with great care' - subsequent to, and consequent upon, more public discussion and understanding. It can only be hoped that time proves to be a gracious witness to this country's pragmatic evolutionary instincts. Oliver's painstakingly professional analysis of the historical development of constitutional independence offers a useful review of the CANZ experience. But at least in the case of Aotearoa / New Zealand the constitutional future of the country is hardly illuminated.

[*] Dr Kennedy Graham is a Research Fellow at the School of Law, University of Canterbury.

[1] P Oliver, The constitution of independence: the development of constitutional theory in Australia, Canada and New Zealand (2005) 342.

[2] Ibid 29.

[3] In Canada, however, the Government made it clear, as early as the 1950s, that the title should be regarded as state protection of religious freedom. See Documents on Canadian External Relations, Vol 18 (1952) 12.

[4] Nor, for what it is worth, can the British parliamentary upper chamber admit any Lord Spiritual who is a non-Christian or non-Anglican.

[5] P C Oliver, 'Sovereignty in the Twenty-First Century' (2003) 14 Kings College Law Journal 137, 138.

[6] Philip A Joseph, 'Parliament, the Courts, and the Collaborative Enterprise' (2004) 15 Kings College Law Journal 321.

[7] World Outcome Document (adopted as A/60/L.1, 15 September 2005), adopted by UN General Assembly as resolution A/60/1, 16 September 2005, paras 138-9.

[8] Note by the President of the Security Council, 31 January 1992, S/23500, 4.