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NEW ZEALAND’S DEMOCRACY

Student’s Name

Subject

Date
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Democracy is a system of government, where political powers reside with the people. It

was derived from the root words demos (people or community) and kratos (rule).1 Henceforth, it

is based on the idea that all citizens should have a vital role in the government. Thus, the real

essence of democracy is giving voice to all people by allowing them to be represented in the

government. In the case of New Zealand, although a formal legal system has been adapted as

early as 1800s, it can be considered that it was only in 1984 when the New Zealand’s

Constitution Act was enacted, that it fully attained democracy.

New Zealand: A Home of Indigenous Peoples

Although New Zealand has been colonized by the West, the country was long known for

being a home of aborigines. It is believed that the Maoris were the first people who settled the

country in 1200-1300 AD.2 They established their community until the first Europeans, the

Dutch, discovered the country in the early 17th century. However, it was the British who

successfully established a colonial government in the country in the 19th century.3

One of the historical nodal points that happened during the British reign was the signing

of Treaty of Waitangi in February 1840 by the British and Maori chiefs.4 However, the signing

of such treaty did not amount to the liberation of the country, because on the contrary, New

Zealand became a dependent of New South Wales - a British colony then. Yet, those who

participated in the drafting of the Treaty expressed the view that the agreement affirmed and

1
Michael Cartwright, “Athenian Democracy”, Ancient History Encyclopedia, April 03, 2018, accessed 7 April
2019, https://www.ancient.eu/Athenian_Democracy/.
2
New Zealand Now, “A Brief History”, New Zealand Immigration, November 28, 2018, accessed 7 April 2019,
https://www.newzealandnow.govt.nz/living-in-nz/history-government/a-brief-history.
3
“Political and Constitutional Timeline”, New Zealand History, 28 February 2019, accessed 7 April 2019,
https://nzhistory.govt.nz/politics/milestones.
4
Ibid.
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acknowledged “the place of Maori as tangata whenua”.5 The Treaty of Waitangi may be

considered as a double-edged sword. For the Maoris, the signing of the treaty was a guarantee of

their customary rights under the rule of the colonizers. On the other hand, the British considered

it as an agreement in which the sovereignty of the country was ceded.6 Nonetheless, it was a

powerful and broad recognition of continuing rights of the Maoris in the country.

Parliamentary Sovereignty vis a vis Shared Sovereignty

In New Zealand, the orthodox legal view is that sovereignty resides in the Parliament. For

centuries, this was the preferred view of their legal culture – the power emanates from the

Parliament, which is “not constrained by any system of entrenched rights, nor is it shared with

any other body”.7 Unlike a federal system of government, power is not divided between local

and national government. New Zealand is a unitary state with no Senate but one House of

Parliament. As such, it could be gleaned how the power is concentrated at one body.

On the contrary, the customary laws of the Maoris admit the concept of power-sharing

and the recognition of the equal authority of other social systems.8 As such, to be able to judge

whether New Zealand has indeed fully attained democracy, it is paramount to understand this

feature of the legal system. A fully democratic New Zealand is characterized by full recognition

of customary laws, giving the latter equal power over the things that are beyond the power of the

Parliament.

5
Constitutional Advisory Panel. New Zealand’s Constitution: A Report on a Conversation (New Zealand
Government, 2013): 11.
6
G.W.G. Leane, “Enacting Bill of Rights: Canada and the Curious Case of New Zealand’s ‘Thin Democracy’”,
Human Rights Quarterly 26 (2004): 182.
7
Ibid, 61.
8
Ibid.
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The Displacement of Maori’s Continuing Rights

By the early 20th century, the customary law of the Maoris was almost totally displaced

due to various factors. The main catalyst of its displacement was found in the ruling laid down in

the case of Wi Parata v Bishop of Wellington.9 The court nullified the Treaty on the sole ground

that the Maoris do not possessed the legal standing in international law.10 The Chief Justice

regarded the Maoris as savage barbarians who had disorganized system of government and

customs, which were all necessary to enact a law.

The prejudicial ruling in Wi Parata was followed by the introduction of conflicting rules

and laws. For instance, they introduced the concept of Jura Regalia – “the rule that the Crown

(or state) owned the beaches, and the rule that some resources, like fish, and water in rivers, and

the sea itself, had no owner, so could be freely exploited by Europeans”.11 This principle

divested the Maori’s ownership of their land, including other resources. Their lands were either

confiscated or purchased by the government, following the introduction of laws that govern land

holdings.

The law was used by the colonizers to justify the enactment of unfair laws. As a result,

the Maori population drastically declined in the latter part of the 19th century. A substantial

number of Maoris migrated to various cities and towns in New Zealand and neighboring

countries, leaving their rural homes.12 For many years, the Maoris became victims of

unjustifiable enactments; hence, it could not be considered that they have attained full democracy

during those years.

9
[1877] 3 NZ Jur (NS) SC 72.
10
G.W.G. Leane, “Enacting Bill of Rights”, 182.
11
Dawson, “The Resistance of the New Zealand”, 59.
12
Ibid.
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Maori’s Fight for Customary Laws

The aspiration of the Maoris to move away from the colonial legal system has intensified

in the latter part of 20th century. The Maoris called for a major reform in the legal system,

insisting “for greater recognition within it of Maori values, culture, and rights”.13 In 1963, there

was a strong movement to enact a new Bill of Rights, but the same did not push through. Central

to the aspiration of the Maoris was a “greater representation and consultation in public decision-

making at all levels”.14 Thus, the appointment of Waitangi Tribunal in 1975 was considered as a

major development of their plight.

The said tribunal was tasked to investigate claims involving Maoris and consequently

make their own recommendations.15 Although the tribunal’s recommendation may be influential,

the same remains unenforceable unless the government affirms so. Thus, it could not be said that

they were already a fully democratic country, considering that the indigenous peoples remain

powerless and underrepresented in the government.

The 1986 Constitution Act: The Birth of True Democracy

In 1986, the Constitution Act was formally adapted, repealing the Constitution Act 1852.

To date, it is the principal and formal declaration of constitutional arrangements within the

country.16 Unlike the features of the orthodox New Zealand Parliamentary, the present

Constitution sets out the equal and interdependence of the branches of the government – the

Judiciary, Legislative, and the Executive. Moreover, the new constitution included legislation

13
John Dawson, “The Resistance of the New Zealand Legal System to Recognition of Maori Customary Law”,
Journal of South Pacific Law 12 (2008): 57.
14
Ibid, 57.
15
Leane, Enacting Bill of Rights, 185.
16
Constitutional Adbvisory Panel, New Zealand’s Constitution, 23.
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“such as the New Zealand Bill of Rights Act 1990, foundational documents such as the Treaty of

Waitangi, and established constitutional principles including that the Government must govern

according to the law”.17 In other words, the present constitution is a codification of existing

constitutional principles and laws that mold New Zealand throughout the years.

The most important attribute of the constitution is the equal opportunity given to Maoris

in the country. Indeed, a unique feature of the country’s Parliament is the seats available and

offered for Maoris. As of today, the constitution allows seven Maoris to seat as members of the

Parliament.18 The seats offered to the indigenous group are meant to guarantee that the

perspective and views of the forefathers of the country are given voice. Although the

Constitution is far from perfection, its enactment may be considered as a great development in

promoting fairness and justice in the country – core elements of democracy.

Conclusion

Even before the coming of British colonizers, New Zealand was already a home for man

indigenous peoples (i.e. the Maoris). The colonization of the country marked the decline of their

customary laws, which resulted in various unfair legislation. Power was then concentrated at one

body – the House of Parliament, not until the Constitution Act of 1986 was passed. It is

submitted that the passage of the new constitution marked the birth of real democracy in the

country, because it codified all existing constitutional laws and principles. Moreover, the new

constitution allowed the Maoris to be represented in the government to enhance participation and

representation.

17
Ibid.
18
Ibid.
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Bibliography

Cartwright, Michael, “Athenian Democracy”, Ancient History Encyclopedia, April 03, 2018.

Accessed 7 April 2019. https://www.ancient.eu/Athenian_Democracy/.

Constitutional Advisory Panel. New Zealand’s Constitution: A Report on a Conversation. New

Zealand Government, 2013.

Dawson, John. “The Resistance of the New Zealand Legal System to Recognition of Maori

Customary Law”, Journal of South Pacific Law 12 (2008): 56-62.

Leane, G.W.G. “Enacting Bill of Rights: Canada and the Curious Case of New Zealand’s ‘Thin

Democracy’”, Human Rights Quarterly 26 (2004): 152-188.

New Zealand Now, “A Brief History”, New Zealand Immigration, November 28, 2018.

Accessed 7 April 2019, https://www.newzealandnow.govt.nz/living-in-nz/history-

government/a-brief-history.

Political and Constitutional Timeline”, New Zealand History, 28 February 2019, accessed 7

April 2019, https://nzhistory.govt.nz/politics/milestones.