The constitution matters. That is the big lesson in behind the parliamentary funds disgrace. If politicians bend the constitution, we are all at risk.
The constitution says who is to have power and how it is to be used and not used. For the constitution to work well, politicians must play by its rules and be seen to.
Every now and then one doesn’t. Chris Carter didn’t follow correct procedure in blocking the Whangamata marina, the court decided. So another minister must redo it.
All parties except Jim Anderton’s didn’t play by the rules on the use of parliamentary funds at election time, the Auditor-General decided. But the police decided not to prosecute the Labour party for thereby breaching the Electoral Act’s spending limits.
Labour and others grumped that the Auditor-General was wrong. Don Brash wrote to the police furiously demanding an “explanation” why it did not prosecute his opponents.
But neither the Auditor-General nor the police need buckle. The constitution protects them.
That is not to say either was right beyond dispute.
Jack Hodder, who is no Labour lackey and has one of this country’s finest legal brains, wrote a firm rebuttal of the Solicitor-General’s legal opinion on which the Auditor-General relied for his parliamentary funds misuse ruling.
The difference between the two legal opinions may lie in Hodder’s understanding of Parliament and political realities. Few lawyers understand Parliament, as Television New Zealand’s breach of privilege in April showed. Parliament is not a department of government. It is the sovereign legislator and it runs by its own rules.
That is long established. But it leaves a big question: how do mere citizens make sure the rules are OK? Who guards the guardians?
There are elections. A wayward Parliament or government can be thrown out.
But that is a blunt weapon. For example, it would be counterproductive for voters who prefer Labour’s fiscal and spending and other policies to National’s to throw Labour out for $850,000 — though Helen Clark so badly misjudged the issue that some voters may nevertheless decide to.
If elections are too blunt a weapon, citizens need sharper ones. That is why the Auditor-General is an independent “officer of Parliament”, immune to ministerial direction and party pressure. He is not a run-of-the-mill public servant whom ministers can order around. He is one of our constitutional guardians.
The Auditor-General’s role is a bit like a judge’s. If the courts were not independent, we would live in an autocracy. Collectively, over centuries, we have decided we don’t want that and voters punish signs of autocracy’s little sister, arrogance, in a government.
So it is vital to respect the Auditor-General even were he to be wrong. Which Labour eventually did. The independence is more important than any error. The office is more important than the incumbent.
Equally vital in a democracy, however, is that we can examine and critique and criticise his rulings — and also examine and critique and support them, as did the National party and, instinctively or thoughtfully, the large majority of the public.
Whatever the fine points of legal reasoning, commonsense says it was wrong to use taxpayers’ funds to do what Labour, New Zealand First, United Future, the Greens, ACT and some National MPs did.
It also goes without saying that we must be free to examine and critique and criticise — or support — the police.
Brash said there was an open-and-shut case that Labour actually spent above the election limit and linked that to non-prosecutions of Labour ministers or MPs. His letter detailed worrying police “inadequacies”.
But a reading of Hodder’s opinion, while it did not discuss the Electoral Act issue, raises doubts the case was open-and-shut. So the police might have had reason not to proceed, at least on a corrupt practice charge.
But there is a deeper issue beyond the rights and wrongs of the police decision. It is that politicians may not try to influence police in whether or not to prosecute individuals or groups.
Establishing that principle took centuries of development of our civil liberties — liberties that mark us as a democracy.
Ask yourself this question of Prime Minister Brash, in possession of the full panoply of prime ministerial majesty: would he in that role demand an “explanation” from the police for not prosecuting someone? And, if so, how would that differ in effect from an instruction to prosecute?
The answer lies in the constitution. Our tangled jungle of laws and customs deny him that lever.
Brash is an economist and few economists bother with the constitution. As Prime Minister, however, he would have high-quality advice from people who do understand and respect the constitution — and if he ignored their advice, there would be a media hue and cry.
Those advisers (and good lawyers in Brash’s ranks now) know the police must be independent. It’s in the constitution. And it is vital to our wellbeing.