To codify or not to codify? That is the question!

Both clauses are broad enough to deal with the corrupt Jack Lang and the 1975 the 1975 Constitution crisis (by appointing Fraser as caretaker Prime Minister so he can order his party members in the Senate to pass the budget before the GG dissolved both Houses of Parliament). Both these Constitutions were written before, or around, 1975 and yet were able to deal with the “unforeseeable” crisis. Indeed, conveniently, the Jamaican Constitution even contains a provision which says the Senate shall not block a budget bill for more than one month, meaning under their Constitution our 1975 Constitutional crisis would never have occurred!

These clauses are also broad enough to deal with the 1977 Fijian Constitutional crisis (where a caretaker Prime Minister was appointed to appease a potentially violent minority) as well as the 1984 New Zealand Constitutional crisis (as the GG would appoint the PM “as soon as practicable” after any election results to deal with a pending financial crisis).

Trinidad’s and Jamaica’s Constitution even states the GG’s or President’s power during a state of emergency and what would happen following a motion of no confidence:

Where the House of Representatives ... [declares] that it has no confidence in the Prime Minister and the Prime Minister does not within seven days of the passing of such resolution either resign or advise the president to dissolve Parliament, the President shall revoke the appointment of the Prime Minister.

There are more codified conventions. You can read them yourself. My point is both these Constitutions cover all your typical and esoteric political escapades.

Of course, critics of codification would argue (1) you cannot codify the reserve powers and scope of application and (2) written conventions are subject to legal scrutiny, prolonging a Constitutional crisis.

Both these arguments are painfully misleading.

The first argument ignores the fact that the existence and scope of reserve powers were settled way back in 1689. The Crown cannot create any new reserve powers or prerogatives: Burmah Oil Co Ltd v Lord Advocate. For the last three or more centuries the monarch has had exactly the same reserve powers, plus or minus the prerogatives Parliament or courts delegated to other official bodies. Therefore, the issue here is not really what these ancient reserve powers are. Rather, the issue is the limitless scope which the monarch’s, and by extension GG’s, power can be applied: for instance, the GG sacking Cabinet due to their policy decisions or Parliament extinguishing the GGs reserve powers for some sinister purpose (as statue, if it makes its intention clear enough, can rob the GG of his or her executive powers: Barton v Commonwealth).

Codification would not have these disadvantages. First, even though unlikely to happen here, Jamaican Parliament, unlike ours cannot extinguish the GGs reserve powers during a state of emergency and hand them over to a dictatorial Prime Minister by a simple act of Parliament (unless the High Court, supposing it is not stacked by the PMs "allies", finds a provision which says elections must always occur every few years). Unlike common law reserve powers, constitutional reserve powers overrides statue. Second, as we saw with Jamaica and Trinidad and Tobago codified powers have an extremely broad application i.e. their codified conventions cover all the contingencies needed for the PM to “command control” of the House of Representatives minus arbitrary Prime Ministerial appointments. Finally, reserve powers are applied and evolve just like now.

The second argument is also flawed. First, I doubt it would take long to resolve whether a reserve power has been exercised appropriately. The history of Jamaica reveals, given the broad and crystal clear nature of the codified powers, any judgment on the use of reserve powers would be instantaneous and in favour of the person exercising them. Second, the High Court (or perhaps, a Constitutional court) could, prior to the exercise of any reserve powers, declare these are perfectly constitutional; thus rendering the issue not subject to legal review after the power is exercised. After all, Kerr did have the advice of Chief Justice Garfield in exercising his reserve powers. Third, it is absolutely silly for the High Court, as constitutional guard dog, to lie idle as a constitutional crisis unfolds. It is their job to clarify constitutional disputes!

History also falsifies Flint’s assertion that unwritten constitutions are more flexible than codified Constitutions. A codified constitution would have probably avoided the 1991 Papuan New Guinea constitutional crisis if the constitution stated “the GG shall dismiss any Minister declared guilty for any stated misdemeanour by Parliament or any Corruption Tribunal no more than a week after such a declaration is made”.

The Papuan GG, Vincent Eri, did not want to dismiss the countries Deputy Prime Minister for the 81 charges of corruption he was found guilty of because they were “good friends”. It took five months for this crisis to be resolved. The GG ultimately resigned. Convention failed. If, however, the provision was codified, and catalogued as a non-discretionary power or obligation, the High Court would make sure the law was instantly enforced perhaps within the same fortnight the commission declared the deputy PM corrupt.