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关于总督职权的几点思考

  Under modern democracy, political power rests with elected parliamentarians, not the unelected Governor-General. Generally speaking, the formation of a government is a political decision and is arrived at by politicians.[29] In an unclear situation, it would be better for the members of Parliament and their party leaders to determine. However, if the political parties fail to make the situation clear, that might require the Governor-General to communicate with the leaders of all of the parties represented in Parliament.[30]In a few cases, the Governor-General might be required to employ the reserve powers to protect the constitutional order, such as dissolving Parliament to call for a new election or appointing the Prime Minister. John McGrath suggested, “Ideally, only when the politicians have discharged their duty and made clear to the public the alignment of the forces in Parliament should the Governor-General act and appoint or reappoint the government as necessary.”[31]
  In order to keep the office’s neutrality, the Governor-General should avoid intervening in politics as far as possible. From the evolving history of the constitutional monarchy, we can find that the cases involving the use of the reserve powers are very few in the Commonwealth, let alone in New Zealand.[32]Dr. Andrew Stockley has argued that, in a country such as New Zealand, with a long history of political stability and democratic government, it is not the Governor-General who prevents a constitutional crisis from occurring. It is the force of public opinion --and the acceptance of democratic norms and values by both politicians and the public as a whole-- which is of much greater significance.[33]However, as discussed below, with the advent of MMP, this has not always been the case.
  In fact, the use of the reserve powers is vital. Sometimes their use does not resolve a constitutional crisis; by contrast, it can cause such a crisis, which is prejudicial to the office. This is just what happened in Canada in 1926. The Canadian Governor-General, Lord Byng, refused the Prime Minister (Mackenzie King)’s request for a fresh dissolution and invited the leader of the opposition (Meighen) to form an alternative government. But Meighen was unable to command a majority, whereas King won the ensuing election. The Governor-General was claimed to be partisan and recalled. Obviously, the Governor-General should not employ the reserve powers except in emergency situations. After all, “the reserve powers must be a recourse of the last resort, an ultimate weapon which is liable to destroy its user.”[34]And more importantly, as Dame Catherine Tizard pointed out, “the frequent exercise of the Governor-General’s reserve powers…would seriously undermine the democratic basis of our system.”[35]
  Fourthly, the reserve powers are certain legal powers, which are exercised in order to protect the constitutional order. In practice, during the last six years, the Governor-General of New Zealand has been suggested to call on the leader of the largest party to form a government after the election. Sometimes public sentiment or opinion polls also suggested the Governor-General that she or he dismissed the government and called another election.[36] Obviously, the reserve powers are misunderstood in those cases. In considering whether or not to exercise the reserve powers, the Governor-General should ask himself or herself whether the constitutional order is under threat and whether it is necessary to exercise the reserve powers. That is to say, only when the constitutional order is itself under threat, or when foundational constitutional principle outweighs constitutional convention, the Governor-General should stand up to protect the constitution or the nation. Apart from such purpose, the reserve powers ought to be held in reserve and should not be exercised.
  However, apart from the reserve powers, there are other ways in which the Governor-General has a role to play. As always noted, the Governor-General usually acts on the ministerial advice and is not involved in day-to-day government; but under normal conditions the sovereign certainly has some rights, which have been summarized in Bagehot’s classical trinity of rights: the right to be consulted, the right to advise, and the right to warn.[37] That is to say, as the representative of the sovereign, the Governor-General has the right to be advised on all governmental programmes, to give advice, and perhaps even to warn. In practice, the ministries might pay no attention on the advice from the Governor-General. However, as Bagehot pointed out, even though the Governor-General might not always change the ministerial ways, her or his advice would always trouble their minds.[38] In most cases, it may be enough for the Governor-General to resolve a constitutional crisis through those rights, and the reserve powers should be kept in reserve until all possibilities of influence have been exhausted. In this sense, Sir John Kerr has been criticized for dismissing his Prime Minister before he sought to use all his powers of influence.


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