With the US House requiring the US Senate to try a case against the president, it’s worth asking whether something similar can happen here - and how.
But first, a quick outline of the US set-up might help.
Jacinda Ardern superimposed over US Constitution Photo: VNP
The US constitution: Supremacy and separation of powers
Article I of the United States Constitution creates a Congress (a two-chamber equivalent of our Parliament). It is first and gets the most attention in the document because Congress was designed to be the primary power in the country, with the widest powers. Congress has slowly leaked away much of its power to the presidency and the Supreme Court.
The much shorter Article II outlines the executive (the president). Pretty much everything the executive does was designed to be subject to approval by Congress. The first president, George Washington, very quickly started to ignore them.
The third and quite short Article III outlines the Supreme Court and its delegated courts. The constitution includes no power of judicial review (striking down laws as unconstitutional). The court gave themselves that power in a very political case (Marbury v Madison, 1803), which was the result of an outgoing president trying to pack the courts with his own supporters (so little changes). The Supreme Court’s decision advantaged the new president so it wasn’t challenged, and their power slowly expanded.
The primacy of Congress in the American political system has slipped, a lot. One of the articles of impeachment against Mr Trump is “obstruction of Congress”. He has blatantly refused to accede to their right to request information, documents, or witnesses from his team, despite oversight of his office being one of the core constitutional functions with many laws to back it up.
To stop exactly that kind of abuse of power the US Constitution specifically includes impeachment as a mechanism whereby Congress can impeach (from the House), and then try (by the Senate), any elected or appointed officials for “Treason, Bribery, or other high Crimes and Misdemeanors.” The outcomes of a guilty verdict can be removal from office, and potentially “disqualification to hold and enjoy any Office of honor, Trust or Profit”.
Nick Smith has wrongly claimed that New Zealand has no constitution Photo: VNP / Phil Smith
New Zealand’s Constitution: Yes we do have one
National Party MP Nick Smith has proclaimed “We don’t have a constitution”. Any number of constitutional experts would disagree with him. We do have a constitution, just not like the US one.
New Zealand’s constitution is not a unified document and doesn’t have curlicued signatures jostling for dominance at the bottom. It is spread across various documents, laws, findings and even conventions (accepted ways of doing things).
The Governor General (who face it, really ought to know) has a list of some of the documents that feed into New Zealand’s Constitution. It includes The Constitution Act 1986 (the title should be a clue), the State Sector Act 1988, the Electoral Act 1993, the Judicature Act 1908 and the Supreme Court Act 2003.
“Other important legislation includes the Treaty of Waitangi Act 1975, Ombudsmen Act 1975, the Official Information Act 1982, the Public Finance Act 1989, the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993.
“Some British laws, such as parts of Magna Carta 1297 and The Bill of Rights 1688, and the Act of Settlement 1701 and the Royal Marriages Act 1772, have been incorporated into New Zealand law by the Imperial Laws Application Act 1988.”
And the site notes that such documents tend to reflect the Treaty of Waitangi as a founding document of New Zealand.
Despite the many sources and documents that comprise New Zealand’s constitution, it does not discuss the impeachment of a prime minister. It doesn’t need to.
Here are two reasons:
1: True parliamentary primacy
In New Zealand the primacy of Parliament trumps the office of the executive. The prime minister is part of Parliament and the leader's power relies on continued confidence. In New Zealand, Parliament can dispense with a prime minister with a simple majority whenever it desires to.
By comparison, in the US, unless the president is impeached and found guilty by two thirds of the Senate the country is stuck with their leader for four years. This hasn’t happened in 243 years regardless of some appalling behaviour.
2: Shooting someone on Lambton Quay
Donald Trump once boasted that he could shoot someone on Fifth Avenue and not lose any voters. His personal lawyer has since argued in court that even if he did shoot someone he would be immune from investigation or prosecution (until he was out of office). It was an argument against obeying a subpoena for tax returns but the judge didn’t buy it.
The US constitution does not give the president immunity. The Justice Department however has a policy of not charging sitting presidents (which is why, despite the Mueller Report highlighting numerous ‘potential’ obstructions of justice by Mr Trump it didn’t actually determine whether any constituted a potential offence).
In New Zealand, prime ministers can and have been investigated (though not for anything that serious). There’s certainly no immunity for anyone.
Under New Zealand law, if an MP is found guilty of an offence punishable by two or more years imprisonment (even if that’s not the sentence imposed), or of a corrupt electoral practice (like voting twice or bribing people to vote for them), the MP loses his or her seat automatically.
A crime with a sentence of two or more years is a category three offence and includes things such as male on female assault, or assault with intent to injure, or discharging a firearm with reckless disregard. So a long way short of shooting someone on Lambton Quay.
We no speak Americano
In summary, New Zealand doesn’t require an impeachment process because prime ministers serve at the pleasure of Parliament (and their own party), and are easy to get rid of it they start getting all ‘high crimes and misdemeanours’ (which refers to abuse of power).
New Zealand has had a few prime ministers who were bullies (there’s a big statue of one of them holding forth in Parliament’s front yard), but getting rid of them is as easy as a simple majority in the House. Just ask Marilyn Waring.