In defence of democracy

Joel Colón-Ríos explores the need for a New Zealand constitution in a ‘post-truth’ world of alternative facts and fake news.

Associate Professor Joel Colón-Ríos, School of Law

Do we have enough control over the way we’re governed? Would a written constitution give us more ability to participate in making political decisions? And are some issues simply too important to be left to voters to decide?

These questions have become even more topical in the wake of Donald Trump’s election as President of the United States and Britain’s vote to leave the European Union. Debate over legal systems has also intensified in New Zealand, with former Prime Minister Sir Geoffrey Palmer saying a written constitution is essential to protect our rights and liberties in the current “post-truth scenario”.

At Victoria University of Wellington’s Faculty of Law, Associate Professor Joel Colón-Ríos is exploring these critical and timely issues.

His work investigates the relationship between constitutionalism, understood as the idea government should have only limited power, and democracy, understood as the idea people have the right to govern themselves in any way they deem appropriate.

The research contributes to Victoria’s ‘Advancing better government’ area of academic distinctiveness.

Associate Professor Colón-Ríos developed his strong interest in constitutional law and political theory while at university in Puerto Rico. He studied for his Master’s and doctoral degrees in Canada, where he found himself increasingly drawn to research.

“I used to read a lot of academic work as a student, much more than I was assigned to read, and I realised I wanted to be part of those conversations. Rather than being a consumer of academic research, I wanted to do the research myself,” he says.

He joined Victoria in 2010, attracted by a role that gave him time to carry out research as well as teaching.

“I liked the advantages of working at a research university. I like the teaching aspect of my job very much but I also wanted the time to think,” he says.

“That benefits the students as well. One of the responsibilities of doing research-led teaching is to be able to offer students the latest thinking in your area, which shows students things are always changing and ideas are always being challenged.”

Associate Professor Colón-Ríos’ background has exposed him to both civil law and common law, the two main global legal systems. Puerto Rico, like most Latin American countries, follows civil law, while New Zealand has a common law legal system.

Associate Professor Colón-Ríos says countries usually create or alter constitutions when they are facing a political crisis. Without a crisis, New Zealanders might have little appetite for changing the constitutional order.

“One of the greatest advantages of not having a written constitution is flexibility. For example, there are things in the United States constitution that should arguably be changed in order to make certain policies possible, but the constitution is too difficult to change,” he says.

“On the other hand, unwritten constitutions like New Zealand’s are largely based on conventions that government officials treat as obligatory. However, no one really knows what the exact content of those conventions is. That puts ordinary citizens at a disadvantage because they don’t know what some of the basic constitutional rules are. A written constitution would make those rules more accessible to ordinary New Zealanders.”

One of Associate Professor Colón-Ríos’ favourite pieces of research was his 2014 paper ‘Five conceptions of constituent power’. In the paper, he argued that the term ‘constituent power’—the power to frame or alter a constitution—originated not in the French Revolution, as generally thought, but in seventeenth-century English constitutional discourse.

The paper prompted Associate Professor Colón-Ríos to embark on a book about constituent power. In 2016, he received a $420,000 Marsden Fund grant from Government funding managed by the Royal Society of New Zealand to research the book, which will be called Constituent power and the law.

While constituent power is often associated with revolutions, Associate Professor Colón-Ríos says it can also be exercised within the law. In Bolivia, for example, a petition signed by 20 percent of citizens can trigger the convening of a constituent assembly with the power to draft a new constitution that becomes valid after popular ratification in a referendum, even against the wishes of parliament.

For Associate Professor Colón-Ríos, the Brexit vote and the Trump presidency have raised a fundamental question about the role citizens play in democracy.

“The temptation is to say maybe we have to be careful about democracy. Maybe there are some things that are too important for the people to decide,” he says.

“However, it’s not as if people are asked to frequently participate in the making of major political decisions. Perhaps Brexit and Trump are not evidence against democracy but, at least partly, unfortunate results of a general lack of opportunities for democratic engagement at a national level.”

Associate Professor Colón-Ríos believes there’s a case for making it easier for people to participate in democracy, including by allowing citizen-triggered referendums. New Zealand, Switzerland and Uruguay all allow citizen-triggered referendums, but in Switzerland and Uruguay referendums are binding, while in New Zealand they are not.

“A system in which people are allowed to vote in favour or against a particular law or policy, but in which those views can be simply set aside by government, is in clear tension with the democratic ideal,” says Associate Professor Colón-Ríos.

“If we want to call ourselves a democracy, we need to create real opportunities for people to directly participate in their self-government.”