Should New Zealand Follow the Canadian Model and Include a Notwithstanding Clause as Part of a Written Constitution?

Abstract

In this paper I examine whether the New Zealand Parliament should have the right to disturb or alter the provisions of a written constitution, in particular the provisions of a supreme law bill of rights, through the use of a notwithstanding clause. This is a theoretical situation where New Zealand has already decided to adopt a supreme law bill of rights as part of written constitution, but is debating whether to include a notwithstanding clause. Canada is the country of comparison in this paper as its constitution includes a notwithstanding clause that allows its federal and provincial legislatures to override certain rights in the constitution. My analysis is informed by the theory of constituent power which maintains that the people are the true constitution makers, not Parliament as a constituted power. The concept of democratic legitimacy and how it relates to a notwithstanding clause is also examined. Ultimately, I conclude that a notwithstanding clause is inconsistent with the view that the people are the constitution makers.