FCOM 111

Government, Law and

Business, Tri 2, 2013
Lecture 3, 12 March 2014
Ideologies and Constitutions (and
essays

Today
In the last class with Dr Russell Harding you were
introduced to a key concept ideology. More on that
soon.
And you also considered the nature of political parties.
The market as a model or metaphor.
In the political market-place (in a democratic system)
political parties compete for market share (votes). The
party (or those parties) that enjoy sufficient support to
provide a majority (say in a parliament or assembly) form
the government.

The essay .

ASSESSMENT ONE: GOVERNMENT ESSAY (25%)

Do political parties in New Zealand follow an ideology? Choose three specific

policy commitments from three New Zealand political parties and discuss the
extent to which the policies reflect a clear ideology.

The policies will need to be drawn from an authoritative source such as a

speech by a Party spokesperson.

Note: All references from your readings, other research undertaken, or from
the Internet must be cited correctly and fully, using the APA referencing
system.

Some questions

Hypothetical
A memorial service for those who were tragically killed in
the Christchurch Earthquake in February 2012 is being
held A group turns up with placards of various kinds the
essential theme of which is that those who were killed
deserved to die because the earthquake was gods
punishment on the people of New Zealand for allowing a
situation to exist in which homosexual acts between
consenting adults are lawful. The group is of the view that
god hates homosexuals through the earthquake New
Zealand, and specifically Christchurch, is being punished.
Should people have the right:
(a) to demonstrate in this way on this issue?
(b) to a level of privacy such that they should be protected
from actions of this kind?

Westboro Baptist Church

The dictionary definition ism

Definition
-ism suffix
used to form nouns which describe social,
political or religious beliefs, studies or ways of
behaving:
sexism
feminism
Buddhism

Two slides that you have seen

before!!

And because you are seeing them again

they are really important!!

Political ideologies

No one sees the world as it is. All of us look at the world

through a veil of theories, presuppositions and
assumptions. In this sense observation and
interpretation are inextricably bound together: when we
look at the world we are also engaged in imposing
meaning upon it. This has important implications it
highlights the need to uncover the presuppositions and
assumptions that we bring to political enquiry. At their
deepest level, these assumptions are rooted in broad
political creeds or traditions that are usually termed
political ideologies. Each of these isms constitutes a
distinctive intellectual framework or paradigm, and each
offers its own account of political reality its own
worldview (Heywood, 2002).

Introducing a key term

1.

2.
3.

Ideology
A political ideology can be defined as
having three elements
an account of the existing order
a sense of the desired alternative (the
good society)
a political plan, programme or project to
enable the alternative to be realised

The overthrow of absolutism

In the 18th and the 19th century we see in

Europe revolutions that overthrew
absolutism, and we see the emergence
of arguably the most influential of the
political ideologies, certainly so far as the
West is concerned - what is that ideology?

Liberalism

Focus on the inalienable rights of the individual,

not a pre-ordained social structure
Government based on the consent of the
governed and constitutional constraints to
prevent the abuse of power
Individual freedom and justice
Equality of opportunity
Reason and tolerance

The defining elements of

liberalism

Include the notion of consent

Those who are governed citizens consent to be
governed, and the terms of their consent often takes the
form of a constitution
What are the first three words of the US Constitution?
We the people
To which we could add We the people consent to be
governed on the following terms
NB that constitutions often seek to separate the
branches of government and provide checks and
balances

A constitution defined

A national constitution is about power and politics on a

grand scale who exercises the power of the state, how
they exercise power, how much can be exercised,
whether other people and which people can stop them
and how they can do it. How New Zealands constitution
works directly affects our economy, our society, our
culture and our politics. It expresses whether we live in a
democracy or a totalitarian regime, in a market
economy or under a one-party communist state, and
whether we celebrate diversity or exploit minorities
Sir Geoffrey, and Professor Matthew Palmer

One element of the NZ

Constitution

Flags, Emblems, and Names Protection Act 1981

Public Act 1981 No 47
Date of assent 15 October 1981

Constitutions set the rules of the

political game

In the case study that is to follow focus on what

is happening in the different branches of
government (legislative, executive, judicial)
which branch dominates in the end, and why?

Constitutions can be about life, and death

Who is this person?

1990
On February 25, Terri Schiavo, 26, collapses in her
home from what doctors believe is a potassium
imbalance. Oxygen flow to her brain is interrupted for
about five minutes, causing permanent damage. A court
rules that she is incapacitated and her husband, Michael
Schiavo, is appointed as her legal guardian.
1993
In February, Terri Schiavo's parents, Bob and Mary
Schindler, fall out with Michael Schiavo and begin to
schedule their visits to Terri on different days. The
Schindlers later try and fail to have Michael removed as
Terri's guardian.
1998
Michael Schiavo petitions a court to have his wife's
feeding tube removed.

2000
In February a Florida Circuit Judge rules that Terri
Schiavo's feeding tube can be removed.
2001
The feeding tube is removed on April 24, but
reinserted two days later after a ruling by another
Florida Circuit Court Judge.
2002
In a week of appeals and court hearings, three doctors - two chosen by Michael Schiavo and one chosen by
the court -- testify that Terri Schiavo is in a persistent
vegetative state without hope of recovery. Two
doctors chosen by her parents say that she can
recover. In November a Florida Circuit Judge rules the
feeding tube can be removed in January 2003, but
stays that order in December pending another appeal.

2003
Terri Schiavo's feeding tube is removed for the second time on October 15.
Six days later, the Florida Legislature passes "Terri's Law," allowing Florida
Governor Jeb Bush to stay the judge's order and direct that the feeding tube
be reinserted. Bush issues that stay two hours later.
2004
The Florida Supreme Court declares "Terri's Law" unconstitutional. Gov.
Bush appeals to the U.S. Supreme Court.
January 24 2005
The U.S. Supreme Court rejects Florida Gov. Jeb Bush's appeal of the Florida
court's decision. The trial judge then sets a March 18 date for the removal of
the feeding tube.
March 18 2005
The feeding tube is removed for the third time
March 21 2005
President Bush signs a Bill passed by the House and Senate that transfers
jurisdiction of the case to a U.S. District Court for a Federal judge to review.
March 25 2005
Notwithstanding the Bill a Federal Judge declines to order the reinsertion of
the feeding tube
March 31 2005
Terri Schiavo dies at 9:05 a.m.

The import of the Schiavo case

This case shows how issues of morality, religion,

law, politics, medical ethics, individual rights etc
can become intertwined
It is about the rights of an individual in this case
a constitutionally grounded right of patients
(including those in a persistently vegetative state)
to refuse treatment
Here is a quote from one of the judicial decisions
relating to the Schiavo case:
a competent person has the constitutional right
to choose or refuse medical treatment, and that
right extends to all relevant decisions concerning
ones health

And
It also demonstrates the interplay and
contest between different levels of
government (State and Federal) and
different branches of government
(legislative, executive, judicial)
In this case, which branch of
government prevailed at the end of the
day?

Another definition of constitution

Rt Hon Sir Kenneth Keith

A constitution is about public power, the power
of the state. It describes and establishes the
major institutions of government, states their
principal powers, and regulates the exercise of
these powers in a broad way. While all
constitutions have these general characteristics,
each constitution is affected by the national
character of the state it services

question Does New Zealand

have a Constitution?

The answer yes, it does

Is the New Zealand Constitution codified

into a single written document?

No and in this respect, New Zealand is

like only two other countries the United
Kingdom, and Israel

Main features of NZs constitutional

arrangements
New Zealand has relatively open-textured
constitutional arrangements compared with many
other countries. This means that our constitution is
flexible and to a large extent uncodified. This fluidity
means that New Zealand has an iterative constitution it
is in a state of constant evolution (Palmer and Palmer)
The Constitution is to be found in:
Formal legal documents
Decisions of the courts
Practices and conventions

Statute Law
New Zealand
Constitution Act 1986
Electoral Act 1993
Bill of Rights Act 1990
State Owned Enterprises Act 1986
State Sector Act 1988
Judicature Act 1908 (relating to the three branches
of government)
Ombudsmen Act 1975
Official Information Act 1982
Public Finance Act 1989

You can also find elements of the

NZ Constitution in

(English and United Kingdom Law (Imported by NZ) e.g. Magna Carta
1297
No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or
Liberties, or free Customs, or be outlawed, or exiled, or any other wise
destroyed; nor will We not pass upon him, nor condemn him, but by lawful
judgment of his Peers, or by the Law of the land.
Lord Denning described it as "the greatest constitutional document of all
times the foundation of the freedom of the individual against the arbitrary
authority of the despot"
The Common Law
Emerges out of judges interpretation of the law passed by Parliament (statute
law), and is found in the decisions they hand down on cases brought before
them
Delegated legislation
Regulations, not directly enacted by Parliament but implemented under
powers granted by statute

Constitutional Conventions

Accepted principles of political conduct which have

developed over centuries of democratic political practice
and have a significant bearing on the way in which
governance occurs
Conventions are not specified in law, and are therefore not
enforceable by the courts
One important convention is that of Collective Cabinet
Responsibility in essence that convention holds that once
Cabinet has made a decision ALL Cabinet Ministers are
obliged to support and defend it*
In 1982, the Supreme Court of Canada summarised the
constitutional position in that country in an equation:
constitutional conventions plus constitutional law equal
the total constitution of the country (Sir Kenneth Keith,
2001).

Is there anything else, specific

to New Zealand, that should
be considered as part of our
constitutional arrangements?

The Treaty of Waitangi

It is clear that the Treaty is an integral part of New

Zealands constitutional arrangements. What is not clear
is the nature and extent of that integral part the Treaty
is a key source of the New Zealand Governments moral
and political claim to legitimacy in governing the country.
It may have some formal status in international law. It is
referred to, and given specific legal effect in a number of
specific pieces of legislation. It is used by the courts as
an aid to the interpretation of statutes. It is the basis on
which the Waitangi Tribunal recommends, and in some
cases can order, action by government (Palmer and
Palmer)
More to come on this

Has the New Zealand Constitution

changed in the last 20 years?

The move from a First Past the Post Electoral System to

a Mixed Member Proportional Electoral System (more
on this to come)
The creation of a Supreme Court (and removal of the
right of appeal to the Privy Council)
Reference to the principles of the Treaty of Waitangi in
legislation** - State Owned Enterprises Act 1986
Section 9. Treaty of Waitangi---Nothing in this Act shall
permit the Crown to act in a manner that is inconsistent
with the principles of the Treaty of Waitangi.

Will it change in the next 20

years, and if so in what ways?
New Zealand as a republic?
Abolition of the Maori seats in the New
Zealand House of Representatives?
A smaller Parliament?
Further changes to the electoral system?
A formal merger with Australia the
Commonwealth of Australasia?

A review of New Zealands

Constitution: 2010-2013
http://www.beehive.govt.nz/release/govt-b
http://www2.justice.govt.nz/cap-interim/
http://www.cap.govt.nz/
http://www.ourconstitution.org.nz/

Before we go

Back to the hypothetical with which we opened

The Supreme Court of the US
The case - Snyder v. Phelps
In an 81 decision, the Supreme Court ruled in favor of Phelps on
March 2, 2011. Chief Justice John Roberts wrote the majority
opinion stating: "What Westboro said, in the whole context of how
and where it chose to say it, is entitled to 'special protection' under
the First Amendment and that protection cannot be overcome by a
jury finding that the picketing was outrageous."[105] Justice Samuel
Alito, the lone dissenter, said Snyder wanted only to "bury his son in
peace". Instead, Alito said, the protesters "brutally attacked"
Matthew Snyder to attract public attention. "Our profound national
commitment to free and open debate is not a license for the vicious
verbal assault that occurred in this case," he said.

Conflicts between rights

Sandy Hook Elementary School massacre in

Newtown, Connecticut USA

A must see movie (about constitutional

change)

"Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have
been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction."
13th Amendment to the US Constitution

Thats it for today

See you on Friday