Unwritten: How Well is New Zealand’s Constitution Equipped to Deal with Political Crises?

By Liv Crum

I                       Introduction

On March 30, 2023, a Manhattan grand jury voted to indict former United States President Donald J. Trump.[1] This news was met with global intrigue, not just for its severity (Trump was charged with thirty-four counts of fraud), but because the criminal charges threatened to humanise his larger-than-life public persona.[2] With court proceedings not expected to advance until late July, we are provided with the perfect opportunity to examine the wider international constitutional questions raised by the indictment of a former Head of State.[3]

This article will first seek to give context to impeachment as a constitutional check on United States political power, and briefly consider its usefulness in relation to the protective function that it serves.[4] Secondly, it will explain how New Zealand’s own constitutional framework differs from that of the United States’, by examining the political procedure we would follow should our Head of Government ever feel tempted to engage in “high crimes and misdemeanours”.[5] Lastly, some thought will be given to the robustness of New Zealand’s unwritten constitution, and the extent of the protections it currently provides against the misuse of political power.

II                     ‘High crimes and misdemeanours.’

The ability to impeach an elected official has been a feature of the U.S. Constitution since 1781; back when the recently revolutionised nation was only just beginning to draft the ‘Articles of Confederation’ (which would go on to become the United States Constitution).[6] Name-change notwithstanding, the founding principles for a system of governance free of monarchical undertones live on, and are still used to give effect to the exercise of political and judicial power across the United States today.[7]

If you were to look up the definition of impeachment, you would likely come across the phrase high crimes and misdemeanours. Article II, section 4 of the U.S. Constitution describes it in the following way:[8]

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours.”

Legal scholars agree that the founding fathers clearly intended for the Constitution to empower We the People (via their House of (elected) Representatives) to remove a political leader from office if they are caught misbehaving. However, the conduct that actually constitutes a “high crime” or “misdemeanour” remains a hotly contested question of interpretation.[9]

On December 18, 2019, Donald Trump joined Andrew Johnson and Bill Clinton as one of the three Presidents in U.S. history to ever be impeached. On January 13, 2021, he became the only one to be impeached twice.[10] Impeachable conduct in the past has included the misappropriation of presential vetos, lying under oath, conspiring with foreign powers, and inciting an insurrection.[11] However, none of these allegations have ever been affirmed by a super majority vote in the U.S. Senate. This demonstrates that the bar for a President to be found guilty of a high crime or misdemeanour is incredibly high.[12]

From a constitutional standpoint, the function of impeachment has proved incredibly effective.[13] The effort to remove a political official from their role, especially in a democratic society, is one that poses a “uniquely destabilising” threat to the entire nation.[14] This is why we are unlikely to hear of a President being impeached for engaging in a bit of recreational drug use or speeding through a stop sign.[15]

Although many people felt let down by Trump’s behaviour while he was in Office, unless his actions could be proven to pose a fundamental threat to the constitutionality of his role, or be taken to undermine the Republic, his conduct was not impeachable.[16] The only thing he could be accused of was exercising his democratically granted powers to make executive decisions on behalf of the people who voted for him, which is the basis of a democracy.[17]

With all of this in mind, it is interesting to consider what – if any – constitutional framework exists within New Zealand to provide a ‘check’ on the exercise of political power.

III                  Can you impeach a Prime Minister: what limits are there on the behaviour of elected officials in New Zealand?

Starting with the obvious element of comparison, New Zealand – unlike the United States – does not have a written constitution.[18] Instead, the guiding principles of our nation can be found across a multitude of legislation, legal documentation, common law precedent, convention and, increasingly, the Treaty of Waitangi 1840.[19] This dynamic approach to framing a constitution can help to formulate a far more active democracy.[20]

To understand why New Zealand does not provide for articles of impeachment, it is worth exploring two further elements of constitutional comparison between us and the United States; parliamentary supremacy and official immunity.

a.       Parliamentary supremacy

New Zealand, in contrast to the United States, has a system of parliamentary supremacy/sovereignty – meaning that the Executive branch of government (the Prime Minister and their Cabinet) depends on maintaining a majority (and the confidence) of the Members of Parliament (MPs).[21] This means that a simple majority vote passed by Parliament would be sufficient to remove the Prime Minister from office at any given time – no drafting of impeachment articles or lengthy hearings required.[22]

Furthermore, the United States system provides for a four-year electoral term, while in New Zealand elections are held every three years – meaning that political change is constant and leaves little time for officials to act inefficiently or engage in questionable conduct.[23]

b.       Official immunity

Under the Westminster System, which New Zealand has due to our British colonial history, MPs are not immune to criminal prosecution while in office.[24] If an MP (including the Prime Minister) were ever accused of criminal wrongdoing which was “punishable by two or more years’ imprisonment (even if that is not the sentence imposed)”, or of engaging in a “corrupt electoral practice”, they would automatically lose their seat.[25] Therefore, New Zealand does not require the constitutional crutch of impeachment, as our system turns on the principle that all (including those in the highest office in the country) are equal in the eyes on the law.

Though these same equal justice principles are shared by the United States, historically speaking, the Justice Department has proven quite reluctant to bring charges against sitting Presidents.[26] Trump’s 2016 claim that he could “stand in the middle of Fifth Avenue and shoot somebody” without being reprimanded can be used to illustrate this point. While this hypothetical lies at the extreme end of the acceptable behaviour spectrum, it appears that the former President was not far off the truth. He was correct in the sense that it would likely take him being removed from his role as Commander in Chief before charges would be able to be bought against him.[27]

For the most part, this is an example of the United States constitution functioning as it was intended – to ensure that the President was able to govern largely unincumbered on the basis of their democratic election.[28]

IV                    How well-equipped is New Zealand to deal with a constitutional crisis?

Comparing the constitutional frameworks of the United States and New Zealand is an interesting exercise in public law and political theory. While one may provide more textual certainty than the other, issues of interpretation will inevitably continue to challenge both frameworks’ effectiveness and subsequent application within our evolving societies.[29]

New Zealand’s unwritten constitution means our system of government can be “adaptable” and “nuanced” – which, in the context of the twenty-first century, provides quite a desirable set of characteristics.[30] It is almost certainly an advantage for Parliament to be unencumbered by political expectations of years gone by when dealing with new and unprecedented circumstances (the COVID-19 pandemic, for example). Particularly when those circumstances threaten national safety and security, and require officials to make decisions quickly.

Additionally, the fact that there is not one ‘definitive’ document which absolutely empowers the actions of the head of government, means that there is a lot more room for public opinion to influence their political leader. Although both New Zealand and the United States’ houses of parliament have experienced rioting and protest in the last two years, the idea that our Prime Minister would not be removed if they were accused of inciting such anarchical activity seems incredibly (and thankfully) far-fetched.[31]

Part of this likely stems from the power afforded to MPs within the Westminster system, who, by way of Parliamentary supremacy, are able to call for a change in leadership anytime they please.[32] An example of this is how the United Kingdom have rolled through five Prime Ministers, compared to the United States’ three Presidents, across roughly the same stretch of time.[33] While this would not prevent someone crazy – and who held the support of the majority in Parliament – from remaining in office, it still provides the opportunity for change (and, consequently, accountability).

An interesting consideration for the future is how the growing acceptance of the Treaty of Waitangi as a constitutional centrepiece might affect the way that we govern here in Aotearoa. Recent jurisprudence would suggest that, historically, the kāwanatanga obligation of the Crown to rangatiratanga Māori has been insufficiently provided for by the legislature.[34] This begs the question – how might it alter our definition of a constitutional crisis if the Treaty and its principles are afforded the same constitutional foothold as the New Zealand Bill of Rights Act 1990 or the Electoral Act 1993?[35]

V                      Summary

In the last few weeks, the federal charges laid against Trump were unsealed.[36] The extent of his behaviour – which includes things like keeping confidential documents (including nuclear weapons details) inside his own home – is not only deeply unprofessional, but potentially threatens United States security. It is arguable that, had these actions occurred while Trump was in office, they would have fallen well within the ambit of the high crimes and misdemeanours threshold for impeachment.[37]

The dichotomy between how Trump has been treated now that he is a mere civilian (as opposed to commander in chief) speaks to the immense political power afforded to individuals through the constitution. The Trump saga can hardly be seen to reflect America’s ideals of law and democracy, yet constitutionally, he could not be deemed to have done anything wrong/impeachable while he was in Office. Therefore, it is a useful exercise to consider how (or to what extent) values are protected by constitutional documentation.

In New Zealand, provided that constituents retain the ability to have a say in how they are governed, our system helps to form the basis for a reasonably robust constitutional framework.[38] Whether the standard of behaviour is set at “high crimes and misdemeanours” or what is deemed acceptable by your MPs, the ability to hold political officials to account is an essential part of upholding a democracy.[39] This is where New Zealand’s own constitution goes some way to distinguishing itself. Despite being considered unwritten, the (many scattered) provisions nonetheless convey an intent to uphold and maintain democratic systems of governance. When we compare the effect of our unwritten constitution to that of the United States’ written one, the protections which New Zealand maintains are a credit to our political system. These findings also highlight how little protection the United States’ constitution actually affords to rule of law and democracy, as priority is given to maintaining a very high threshold for removal of elected officials.

[1] Corinne Ramey & Joe Palazzolo “Grand Jury Votes to Indict Donald Trump” (30 March 2023) The Wall Street Journal <https://www.wsj.com>.

[2] Domenico Montanaro “Senate Acquits Trump In Impeachment Trial — Again” (13 February 2021) National Public Radio <https://www.npr.org>.

[3] Perry Stein & Shayna Jacobs “What’s next for Trump after pleading not guilty to 34 felony counts” (5 April 2023) The Washington Post <https://www.washingtonpost.com>.

[4] Cass R. Sunstein Impeachment: A citizen’s guide (2nd ed, Penguin Books, USA, 2019) at 2.

[5] Phil Smith “Can you impeach a Prime Minister?” (12 December 2019) Radio New Zealand <https://www.rnz.co.nz>.

[6] Sunstein, above n 5, at 25.

[7] At 64.

[8] United States Constitution, art II, § 4.

[9] Sunstein, above n 5, at 69.

[10] Montanaro, above n 3.

[11] Tara Law “What to know about the U.S. Presidents Who’ve Been Impeached” (13 January 2021) Time Magazine <https://time.com>.

[12] Sunstein, above n 5, at 115.

[13] At 116.

[14] At 2.

[15] At 80.

[16] At 80.

[17] United Nations “Democracy” <https://www.un.org/en/>

[18]Office of the Governor General “New Zealand’s Constitution” (n.d.) <https://gg.govt.nz>

[19] Office of the Governor General, above n 19; and The Treaty of Waitangi 1840.

[20] Edward Willis “Differences between written and unwritten constitutions” (17 November 2016) New Zealand Law Society <https://www.lawsociety.org.nz>.

[21] Ministry of Justice “New Zealand’s Constitutional System” (n.d.) <https://www.justice.govt.nz>.

[22] Smith, above n 6.

[23] Smith, above n 6.

[24] New Zealand Parliament “Members’ conditions of service” (8 June 2017) <https://www.parliament.nz/en/>.

[25] Electoral Act 1993, s 30.

[26] Smith, above n 6.

[27] Lauren Aratani “Trump couldn't be prosecuted if he shot someone on Fifth Avenue, lawyer claims” (23 October 2019) The Guardian <https://www.theguardian.com/international>.

[28] Sunstein, above n 5, at 78.

[29] Willis, above n 22.

[30] Willis, above n 22.

[31] Alexander Gillespie & Claire Breen “The parliament occupation is over – now New Zealand needs new laws to protect the ‘epicentre of its democracy” (23 March 2022) The Conversation <https://theconversation.com/nz>.

[32] Smith, above n 6.

[33] University of Oxford “British Prime Ministers” < https://www.ox.ac.uk/>.

[34] Jamie Tahana “Crown overstepped authority to govern Northern Māori in 19th century - Waitangi Tribunal” (23 December 2022) Radio New Zealand <https://www.rnz.co.nz/>.

[35] See New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 (CA) at [673] per Richardson J.

[36] Anthony Zurcher “’It’s got everything’: why Trump indictment could be so damaging” (10 June 2023) Radio New Zealand <https://www.rnz.co.nz/>.

[37]Sunstein, above n 5, at 80.

[38] Smith, above n 6.

[39] United Nations, above n 16.

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