Inclusive constitution-making: Lessons from Iceland and Ireland for Aotearoa New Zealand

Abstract

New Zealand’s constitutional journey has been revived in recent years through three expert-led dialogues on more certain, formalised and new constitutionalism: the Constitutional Advisory Panel (2013), Matike Mai Aotearoa (2016) and Constitution Aotearoa (2017). This paper advocates that any constitution-making in New Zealand should follow inclusive processes to uphold democratic legitimacy and facilitate deliberation. There are three key elements of inclusive constitution-making. First, the people should have ownership over important parts of the process. Second, there should be a citizen-led representative drafting body–a constituent assembly without the power to make ordinary law and comprised of politically independent delegates. Third, there should be public oversight of the process to ensure transparency and provide for meaningful consultation. This paper undertakes a comparative exercise, analysing recent inclusive constitution-making experiences in Iceland and Ireland, to offer proposals for inclusive constitution-making in Aotearoa New Zealand. New Zealand’s most significant challenge in terms of ownership is considering the proper role for experts and balancing the power of political elites in a climate of constitutional apathy. In terms of representation, the most significant challenge for New Zealand is how to represent the interests of Māori as tangata whenua and how to represent traditionally marginalised voices in politics, such as those of women, ethnic minorities and youth. In terms of public oversight, the biggest challenge is how we can use digital democracy in constitution-making.