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Executive Power 60 Years on Has Anything Changed?

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Executive Power 60 Years on Has Anything Changed? Harshan Kumarasingham Executive Power 60 Years On Has Anything Changed? When New Zealand changed its electoral system from After being prime minister for three terms, the Labour leader conceded defeat first-past-the-post (FPP) to mixed member proportional after a convincing loss at the general election. The long and eventful Labour representation (MMP), the move was heralded as the end administration was to be replaced by a of old politics. Prime ministers and their Cabinet would National one headed by an energetic and ebullient leader untested in experience as no longer be the ‘elected dictatorship’. The executive would prime minister, but primed and prepared now be constrained by greater checks and balances. The for power. John Key, the 11th National Party leader, in 2008 replaced Helen two-party system that had held New Zealand politics Clark, the 11th Labour Party leader, as prime minister after nine years just as Sid hostage for at least 60 years would end and instead a greater Holland succeeded Peter Fraser almost 60 diversity of interests would be represented in the House of years earlier. Key, like Holland (except for a few Representatives, a House that could better hold the executive months in the War Cabinet in 1942), to account. This was the aim, but has it happened? This became prime minister without having critical experience of government, and article examines recent instances of executive actions that are yet both Key and Holland had long held the ambition to become leader of New akin to those taken in the FFP era that MMP has been unable Zealand. They had also both campaigned to eliminate. It also offers suggestions for how to increase on the promise that National had something new to offer the electorate after the accountability of the executive by strengthening the the long years of Labour rule. However, Holland and Key astutely did not seek constitution and other branches and offices of state. to tamper with many of the successful policies of the previous administration. Harshan Kumarasingham is currently the Henry Charles Chapman Fellow Instead they projected their vitality and in Commonwealth Studies at the University of London. He previously worked for the New Zealand Treasury, and is the author of Onward with freshness, because, although government Executive Power: Lessons from New Zealand 1947-57 (Wellington: had become almost synonymous with Institute of Policy Studies, 2010), which this article is based upon. ‘Old Peter’ and ‘Aunty Helen’, the Page 46 – Policy Quarterly – Volume 6, Issue 4 – November 2010 New Zealand people had decided it was business of government but has left she puts the emphasis on “prime”, being only fair to ‘give the other fellow a go’. untouched the essential ground-rules well briefed on what is happening across Clark, like Fraser, had generous of Westminster government … In its all portfolios, jumping on colleagues who experience of the Treasury benches and essential respects, the Cabinet system muck up and even taking over if things are had won three election victories. These New Zealand inherited in the 1850’s not fixed’ (Armstrong, 2008). The same Labour titans, however, after nine years in has remained remarkably resilient could have been written of Fraser. Clark the top job were both unable to persuade … From a constitutional perspective, had a loyal deputy prime minister and the voters to give them another term in there has been an almost seamless finance minister in Michael Cullen (just office, allowing the National Party to gain transition from the former plurality as Fraser had Nash concurrently in the office with a mandate for reform, but not voting system to MMP. The cabinet same positions) to buttress this state and revolution. remains much as it was before … provide much of the policy grunt required Retaining the confidence of the House to action prime ministerial edicts often The MMP era remains the axis around which the without the involvement of Cabinet. So, 60 years on is executive government entire system revolves. This imperative in New Zealand the same? No. The MMP facilitates the democratic ideal and representation system has revolutionised is the bedrock of the Westminster the electoral system and changed the system. It has been so ever since the political landscape without question. The cabinet system was introduced in The Clark government’s hegemony over the political system that 1856. (Joseph, 2008) decision to abolish Labour and National governments exerted under Fraser and Holland is effectively MMP has given more choice and more appeals to the Privy over. The two-party dominance is gone representativeness to the New Zealand and instead the House of Representatives voter, but this is not the same as giving Council and create and the Cabinet table must be shared by more formal or informal checks and a Supreme Court in other parties and partners in a way that balances on the political executive. a parliamentary historian would have to New Zealand in 2010 is still unitary, New Zealand as the look way back to the Massey–Ward era unicameral, and governed by an unwritten to find some form of precedent for. The constitution. The executive, and prime final appellate court proportional system has compelled the minister in particular, still retains many in 2003 was arguably, ‘Wellington model’ of the Westminster of the prerogatives that were available system to adopt governing arrangements to Fraser and Holland. In the Clark–Key after MMP, the biggest and parliamentary accommodations era there have been subtle and not so that would have been unthinkable and subtle executive emanations that have constitutional change unnecessary 60 years ago. demonstrated that prime ministerial However, many of the constitutional power is still alive and well. since the abolition of the issues that faced the era of Fraser and Legislative Council. Holland can also be seen in the era Enduring executive prerogatives of Clark and Key. The change to New Helen Clark’s political style has been Zealand’s electoral system did not cause described as ‘presidential’ since ‘[h]er the evaporation of concerns over the focus is squarely in her ability to go over excesses of the executive. Indeed, it Parliament, front for the Executive and would be delusional to heap on MMP work her way through and around the Executive vs. judiciary the responsibility for curing all our constitutional checks and balances, and This method of government increased constitutional ills. The executive may no persuade New Zealanders of the rightness tension between the executive and longer be unbridled, but nor has it become and rectitude of her policies and unite judiciary as well. The Clark government’s completely bridled. The Westminster them behind her’ (O’Sullivan, 2005). The decision to abolish appeals to the Privy system’s innate flexibility allows many commentator cited admits, however, that Council and create a Supreme Court in of its core principles to continue despite ‘the move towards a more presidential New Zealand as the final appellate court in key changes that MMP has demanded. As style of direct action did not suddenly 2003 was arguably, after MMP, the biggest legal scholar Philip Joseph argues: emerge under Clark’s regime. Over the constitutional change since the abolition past 20 years New Zealand prime ministers of the Legislative Council. Unlike MMP, ‘The more things change, the less have increased the Executive’s reach’. An the abolition of the right to appeal to the they change.’ And so it is with MMP. analysis of Clark’s leadership by a respected Privy Council was not put to a referendum MMP has wrought major changes to political journalist assessed that Clark (Harris, 2006, pp.117-9). Thus, as with the the New Zealand political landscape. ‘imposed iron discipline on colleagues, her removal of the upper house, the Privy It has changed the way we do the caucus and the party … As Prime Minister, Council appeal was eliminated from the Policy Quarterly – Volume 6, Issue 4 – November 2010 – Page 47 Executive Power: 60 Years On Has Anything Changed? Attorney-General v Ngati Apa1 with the National’s justice minister, Simon Foreshore and Seabed Act 2004. Around Power, has carried on the executive ... New Zealand’s the same time the chief justice, Dame Sian tradition of expecting the other branch unicameral Parliament Elias, was also worried that the judiciary’s of state to keep away from its exercise independence was being eroded by many of power. Dame Sian delivered a speech is dangerously the of its administrative functions being taken which, among other issues, raised over by the Ministry of Justice (similar concerns about overcrowding in prisons ‘plaything of the concerns have been made about the Office and the question of whether alternatives executive’, lacking of Governor-General being administered to prison sentences might have to be by the Department of the Prime Minister discussed. Power immediately responded, even with its select and Cabinet) and it therefore being with the prime minister’s backing, stating ‘beholden to a minister’, further ensuring brusquely, ‘This is not Government committees ‘the multiple the judiciary to the executive. Clark policy. The Government was elected to set layers of consideration replied to Dame Sian’s position by stating sentencing policy, judges are appointed to she should ‘stick to the bench’. Further to apply it’. Even though Dame Sian’s speech that bicameralism this Clark appointed Cullen, ‘who had acknowledged that the elected politicians led the parliamentary charge against the must decide on this the head of the provides’. Chief Justice’, as attorney-general, thereby judiciary was again told to ‘stick to the charging a non-lawyer, finance minister bench’, even though constitutionally it is and deputy leader of the Labour Party within her role to discuss such matters, (among his other important political especially with her ‘extensive first hand New Zealand political landscape without roles) to become the ‘principal legal experience of criminal justice matters’ direct public involvement.
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