It is worth noting here that some commentators have applied the term “reserve powers” in describing the exercise of a Monarch’s personal initiative. For example, in 1931 when Ramsay MacDonald’s Labor Government collapsed, George V took the initiative and encouraged the formation of a National Government under MacDonald’s leadership.[39] However, a personal initiative need not involve the exercise of any reserve powers. In this sense, Philip Joseph has argued that the term “reserve powers” is largely a misnomer.[40]
　　
　　The Governor-General in Parliament
　　Subject to sec 14(1) of the Constitution Act 1986, as a supreme law making body, Parliament consists of the elected House of Representatives and the sovereign. That is to say, any proposal to make a new statute or to change an existing statute must have the approval of the House of Representatives and the Governor-General. Thus, in terms of constitutional law, the sovereign is an intergral part of the law-making progress.[41]
　　New Zealand does not exist a “pure” separation of powers system.[42] In New Zealand, the constitutional reality is not so much a separation of powers as a fusion of powers, because executive and legislative power are linked through the cabinet of ministers. Due to the fact that there is an overlap in membership between the two institutions, the executive, to a large extent, determines the business of Parliament. [43] So there is the potential risk that a party with a parliamentary majority might abuse their controlling position in Parliament to act unconstitutionally, where the Governor-General would have a role to play, even though it has never happened in modern time in New Zealand. In this respect, the most disputed of the reserve powers is the power to refuse the royal assent of Bills, which was provide in sec 16 of the Constitution Act 1986. Philip Joseph discussed this section as follows:
　　The Officials Committee was agreed that reference to the royal assent should be included in the Constitution Act 1986, but differed as to the form it should take. The majority opposed re-enacting a power to withhold assent as this may have implied that the royal assent was in the Governor-General’s discretion…The minority on the committee believed that omitting reference to the power of refusal could be construed as revoking the legal power to withhold assent. However, a power must be distinguished from a duty. The power to assent under sec 16 implies a power to refuse assent, whether or not the power must be invoked on ministerial advice.[44]
　
　　In addition, subject to sec 18 of the Constitution Act 1986, the Governor-General may by proclamation summon, prorogue or dissolve Parliament. It is worth noting that sec 18 makes express the Governor-General’s summoning power, whether or not Parliament stands prorogued to a later date.[45]Clearly this provision puts the effective means in the hand of the Governor-General to check parliamentary activities. In fact, in most cases the reserve powers such a royal assent to Bills or dissolving Parliament work as backstop. In the event of the political actors failing to resolve a political stalemate and causing constitutional paralysis, the Governor-General might exercise the reserve powers. Even then the Governor-General should exert his or her personal influence to resolve the constitutional crisis before the use of the reserve powers. Accordingly, the existence of the reserve powers is a powerful incentive to constitutional propriety.[46] That is to say, the existence of the reserve powers does not mean the need to exercise those powers frequently, but it does mean that if Parliament acts unconstitutionally, then the Governor-General has the right to employ the reserve powers to protect the constitutional order.
　　It is worth noting that with the advent of MMP and the end of single-party majority government Parliament potentially becomes more powerful in relation to the Executive because a government needs to negotiate with their parliamentary opponents to secure passage for their legislation. On the other hand, MMP is just as likely to provide majority coalition government where the parties of government between them command a parliamentary majority and inter-party negotiation takes place within the Executive rather than between the executive and the legislature.[47]Under MMP, at least to some extent the dissolution of Parliament has ceased to be so powerful a weapon in the hands of a Prime Minister since a fresh election is unlikely to give any party a parliamentary majority. By contrast, the better way would be to form a minority government or a coalition government with a hung parliament through an inter-party consultation in almost all circumstances. So Alison Quentin-Baxter has argued that the introduction of MMP, together with the enactment of the New Zealand Bill of Rights, does much to eliminate the possibility of “extreme cases” where the Governor-General has to exercise the reserve powers.[48]

第 [1] [2] [3] [4] [5] [6] [7] 页 共[8]页