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On Sovereignty

2 June 2011
Revised 12 June 2011

The conflict between the monarchy and the republic in Aotearoa centres on the concept of sovereignty, yet sovereignty is rarely the issue of debate.  Instead of talking about sovereignty, we talk about democracy, nationhood and national identity which are all subjects that touch on the issue of sovereignty, without getting to the heart of the matter.   This is understandable, because sovereignty is a rather abstruse concept, and it is also fraught with political peril in New Zealand because of the Maori claim to sovereignty or tino rangatiratanga.  So instead of talking about sovereignty we talk about the mechanics of the state and its institutions, and the way in which we believe that the various state office holders should be selected.

Yet sovereignty is the nub of the issue.  The sovereign power is the ultimate, absolute, indivisible, exclusive and infallible authority in the state.  The infallibility of the sovereign is expressed in the legal precept that "the sovereign can do no wrong".  The sovereign makes law but is not bound by law.  ( Even though in New Zealand certain legislation is declared to be "binding on the Crown", the Crown reserves the right to repeal or amend all those laws.  In other words, while the Crown may choose to restrain itself,  there is no higher authority which can legally constrain the Crown).

Queen Elizabeth as Sovereign of New Zealand.

In New Zealand law, sovereignty is vested in a single individual, the Queen.  She is technically the maker of all law, since any bill passed by the legislature (the House of Representatives in Parliament) must receive the royal assent (the signature of the Queen, or her personal representative, the Governor-General) before it passes into law.  She can do no wrong, because she cannot legally be held to account for any private act or omission, or any act of state.   In practice she is not even subject to public criticism for  the possible  misconduct of those who are in her service, such as the police, the military or the judiciary, or for any of actions which are carried out in her name, such as the waging of war and the making of law.   The Queen, as sovereign, cannot be held accountable for her actions in law or is not held accountable in conventional public discourse.

Vesting sovereign authority in an individual has the singular advantage that it is simple, and meets the defining criterion of indivisibility.   In a crisis, there is no disputing where the ultimate power lies, and who has the right to make decisions which over-rule all other contending points of view.   That is the Queen herself. However, the very idea of the sovereignty of an individual human being, such as the Queen, conflicts with normal human assumptions about justice, fairness, individual dignity and individual fallibility.   We instinctively believe that relations between individuals should be rule-based, and that no individual should arbitrarily be assigned the right to rule over another.   These instinctive beliefs are are encapsulated in a variety of sometimes contradictory concepts of  such as "the rule of law",  "popular sovereignty", "the sovereignty of God" and "the sovereignty of the individual".    Some of us, who we may call individualists, would hold that the "ultimate, absolute" authority is the individual conscience.   Others, classified as religious fundamentalists, believe that God is the only "absolute, ultimate, infallible" authority in the world.   Secular populists, on the other hand, maintain that the will of the people is the ultimate, absolute, infallible and supreme source of authority in the state and society.

All these conflicting claims for sovereign authority present their own difficulties.   The will of the individual is simple enough to interpret, but carries with it the risk of lawlessness and social chaos.    The will of God, and the will of the people, become a matter of interpretation.   They cannot be made made known to us directly, and with certainty, in the same way that we can know the will of a monarch.    If, to simplify matters, a document is proffered which purports to show how the will of God or the people is to be determined (for example by way of a book such as the Holy Quran  or a document such as the  Constitution of the United States) the idea of divine or popular sovereignty is narrowed, if not subverted.   In practice, divine and popular sovereignty become subsumed into the sovereignty of, say, the Quran and the Constitution respectively.

Royal sovereignty is an implicit challenge to the concepts of individual, divine, and popular sovereignty.   However, the New Zealand system, which follows the British system, effectively preempts criticism from the proponents of divine or popular sovereignty in two ways, which are closely associated with the Crown's continuing claim to sovereign "legitimacy".   First, the institution of the Church of England, which is headed by the Queen, confers upon her the title of "Defender of the Faith" which suggests that rather than challenging the divine sovereign authority, she exercises her own authority on behalf of God as God's agent in the world, and in the Realm of New Zealand in particular.   In this way the monarch lays claim to divine legitimacy.  Second is the institution of Parliament, which is also headed by the Queen, and which comprises the Sovereign herself together with House of Representatives.   By convention, if not in statute, the Queen defers to the will of the people as expressed through the workings of the House of Representatives, and thus her regime lays claim to popular legitimacy.

Other contenders for sovereign authority

In New Zealand, in addition to the universal claims for individual, divine, and popular sovereignty, there is a particular claim made for Maori sovereignty or "tino rangatiratanga" which is based on the status of the Maori people as the original occupiers of the land.    Tino rangatiratanga is an implicit challenge to the sovereignty of the crown which has been accommodated by the Treaty of Waitangi, which recognised Maori claims to territorial authority, and in doing so preempts one more  possible challenge to the legitimacy of the sovereignty of the Crown.

Over the past thirty years the concept of sovereign authority in New Zealand has been further complicated (or arguably simplified) by the growth of economic fundamentalism which espouses the sovereignty of "the market".   Adam Smith's image of the "invisible hand" of the market was a conscious counterpoint to the sovereign authority of God, and ever since, the market has served as the quasi-divinity of secular society.   The concept of "the market"  now dominates popular views on the function and legitimacy of the state.  Politicians may pay lip service to the idea that the people are sovereign but in the modern world they see themselves as managers of the economy more than as representatives of the people.   Politicians, the business press, and even the main stream media often refer to sovereign states as "economies" and to the New Zealand state in particular as "NZ Inc" rather than by its legal definition as "the realm of New Zealand".   In the prevailing ideology, the market has come to be synonymous both with the collective popular will and with the expression of the individual will, while "tino rangatiratanga" has also found expression within the market system through various Maori business enterprises and incorporations.   In short, the proponents of the market have been as successful as the Crown in coopting various competing claims to sovereign authority, and "the market" today constitutes the most pervasive, albeit tacit, challenge to the sovereignty of the Crown.

The Crown, for its part, does not need to challenge the sovereign pretensions of the market, but neither does it need to take any explicit actions to accommodate the market claims to sovereignty.   The market is subject to its own inherent limitations.   Unlike Maori, or the "people", or even the clerical establishment, the "market" has no way of creating a state in its own image.    At the same time, the market requires the existence of a state in order to function as a market, and the advocates of the market have, on the whole, come to the conclusion that the monarchist state will do as well as any other.   The "minority opinion" (not necessarily a numerical minority, but the less influential opinion within the market economy) is that New Zealand should become a republic in which the popular will, expressed through democratic processes,  would be  paramount.   The dominant opinion is that New Zealand should not continue to exist as an independent state but should join Commonwealth of Australia, and that the British monarchy should be retained for the time being to avoid encouraging nationalist sentiment which would be an impediment to the eventual union with Australia.

The monarchy is retained in New Zealand because it represents the dominant position of people of British descent within New Zealand society and also because it associates New Zealand politically and militarily with the former British imperial system in its modern incarnation as the Anglo-American  "New World Order".    It is an effective obstacle to the growth of national consciousness within New Zealand society, which would be problematic for the Australian, American and British corporations which presently dominate the New Zealand economy.   While the British monarchy endures in New Zealand, foreign interests can continue to rule over New Zealanders who have little sense of common identity and remain racially divided between peoples of British, Maori and other descents.   If the monarchy was to go, New Zealand could, and most probably would, follow a more independent course in the world politically, economically and militarily.

The concept of a "soft republic"

The "official" republican movement has not directly engaged the monarchists on the question of sovereignty.    It has taken up the idea of a "soft", "simple" or "minimalist"  republic which can be brought into existence by means of a small change to the constitution, for instance by passing a statute which declares the Governor-General (currently the personal representative of the Queen) to be the Head of State for New Zealand in his or her own right.  The vexed question of sovereignty is thus apparently avoided.   However, in reality sovereignty would remain an issue.   Would the Governor-General, in inheriting the Queen's title of "Head of State", also inherit all her prerogatives, and her sovereign status?    The republicans generally seem to agree that the prerogatives would be inherited, and that the historic accommodations made with popular and  Maori sovereignty would be retained,  but, for obvious reasons, are uncomfortable about the prospect of a single individual (the Governor-General cum President) acquiring sovereign authority including the role of Commander-in-Chief of the armed forces.

Under the soft republic scenario, neither the racial character of the New Zealand state nor its colonial origins would be directly challenged.   Democratic process and the notion of popular sovereignty would be implicitly endorsed, and one could anticipate a resurgence of "national pride".   At a more fundamental level, the philosophical conflict between market sovereignty, popular sovereignty, individual sovereignty, divine sovereignty, and Maori sovereignty would remain unresolved.   The "soft republic" would, at best, only be a step along the way to resolving these issues.

My personal view is that for the time being global capital will resist the establishment of a republic in New Zealand, and the political classes, whose existence depends on the continued support of foreign capital, will generally continue to toe the monarchist line.    However the official republican movement will continue to assert the case for a republic, and therefore it is beneficial to have an understanding of how the institutions of the monarchist state are structured, how they operate, and how they might be changed.

Historical antecedents

In my writings on the subject I employ the term "regime" which receives little use in political discourse in New Zealand except as a pejorative applied to foreign states.  In a more objective definition, the "regime" is the system by which a society is ruled and administered.  At the core of a regime are the institutions of state, but the concept of a regime extends beyond the state itself to include a range of non-state institutions which are important to the maintenance of the social order.  The feudal regime, for example, embraced the aristocracy and the church, respectively known as the first and second estates (the people, or commons, being the third estate), as well as the monarchy, which was the nascent form of the state.  The broad concept of the regime includes the ideological institutions of the state and society, namely the church or second estate in feudalism, and its secular counterparts, the "fourth estate" (mass media organisations) and the universities in modern democracies.

In feudal regimes, the claim to sovereign authority was first shared between, and then fought over by, the church and the monarch.  In the case of Britain, and  Europe generally, monarchs won the battle against the church by supplanting the church's claim to be the instrument of God in the world.  Monarchists generally upheld the long-recognised sovereignty of God, but claimed that the monarch, rather than the church, possessed the right to exercise sovereign power in the name of and on behalf of God.  Hence the doctrine of "the divine right of kings".   Remnants of this claim of divine right are still to be found in the British and New Zealand constitutions.   The monarch is still sovereign, and  intimately associated with the religious affairs of the Church of England.  The British and New Zealand monarch tacitly claims to exercise God's sovereign authority in the world, or at least in that part of it which remains in the British jurisdiction.

However as western societies have become secular and democratic, there has been a growing presumption that the people, not God or king, are sovereign, and the monarchy has moved to accommodate this belief by presiding over political structures which are essentially democratic, and an implicit expression of the concept of popular sovereignty.   The disposition of sovereign authority in the British system is therefore complex.  The claims of the monarch, the church, God and the people all receive some degree of tacit or legal recognition.  New Zealand is part of this rather abstruse system, but with the additional complication presented by the claims of  Maori.

The state is that part of the regime which functions as the instrument of sovereignty.  The monarch is technically and legally sovereign, and the state as an extension of the monarchy has inherited some of the monarch's privileges and prerogatives.  The defining attribute of sovereignty is found in the legal precept that "the sovereign can do no wrong" meaning that whatever the sovereign does is deemed to be legitimate.  In the religious scheme of things, God is sovereign and God can do no wrong.  In democratic systems it is assumed that "the (sovereign) people are always right".  In the realm of New Zealand the sovereignty of the Queen is confirmed by the fact that none of her actions or omissions can be subject to  legal challenge or publicly criticised within the limits of the regime itself.   The legislature, parliament, also enjoys certain sovereign privileges, being unaccountable and unconstrained in the way it chooses to enact statutes except by the  prerogative of the sovereign herself to withhold consent.  Under the present regime the monarch is technically sovereign, and parliament is practically so in the normal course of things, and occasionally lip service is paid to popular sovereignty.

The future of the monarchy

Precisely because sovereignty is such a potent concept it cannot be imposed upon an unwilling population.  Any claimant to sovereign authority over our persons relies upon our trust that he or she will, in fact as well as in law, do no wrong and upon our faith that the sovereign will act so as to maintain or improve our condition in life.  Thus the sovereignty of God is accepted by those who can say without condition or reservation "In God we trust".   The sovereignty of the Queen in New Zealand is rather more problematic.  She is there, but few believe that she can or will do anything to ease our way in the world, and many believe that she turns a blind eye to injustices of the present and the grievances of the past.

As has been noted, the New Zealand state arose out of the monarchy, which explains the use of the term "the Crown" in New Zealand to refer to the state as a whole and as an enduring entity.  Over the years many of the attributes of sovereign authority have been transferred from the monarch to other institutions of state.  States generally consist of a legislature, an executive, and a judiciary whose powers are separate and distinct.   In New Zealand, parliament is the legislature.  Its role is to make laws, including, crucially, the laws which allow the executive to levy taxes upon the people.   The judiciary, the system of judges and courts, are responsible for judging particular cases according to the laws enacted by the legislature.

The executive, also known as the "administration" or rather more loosely the "government" directly manages the affairs of state through the military and civil services.  The executive is headed by the Prime Minister, who is the "head of government" and the cabinet, which directs the activities of the departments of state which comprise the "military" and "civil" services originally dedicated to the service of the monarch.  The military services existed for the purpose of making war against the king's enemies, and the civil service for maintaining order among the king's subjects.  The civil service later came to be called the public service, on the progressive assumption that its proper purpose was to serve the public rather than the monarch.  More recently, there has been a reaction against the concept of a "public service" provided by the state with money raised by taxes, and what was the "public service" is now more commonly known as the "state services", to indicate that its primary role is to preserve the financial and other interests of the state.  In short the head of government, the Prime Minister, attends to the prosaic business of taxing and spending to expedite the affairs of state.  He or she is by definition a political person, and therefore subject to political criticism.   Heads of government come and go.  They could be said to represent the more ephemeral interests and attitudes of the state.

The head of state in New Zealand, the Queen, has a very different role to the head of government.  She heads the entire apparatus of the state, the executive, the legislature, the judiciary, the police, the military and the state services.  All members of the executive (Prime Minister and Cabinet), the legislature, the judiciary, the police and the military are sworn in allegiance  to her.  She appoints the head of government, who in turn appoints the Ministers  of the Crown, and so on down through the entire structure of the state.  The concession made to popular sovereignty, and it is a crucial one, is that by convention the Queen appoints a Prime Minister who has "the confidence of parliament", which is to say the confidence of a popularly elected legislature.  The monarch, then, is no autocrat.  She represents the  state in its highest,  broadest, and most enduring character, and she lays claim to sovereign authority on behalf of that state.  For that reason she is usually considered to be above politics, or, to put it less kindly, above criticism.  The question of the monarchy thus resolves itself into the question of what kind of state, or more broadly what kind of regime, the monarch represents.   Certainly it is democratic, but it is also essentially and unequivocally British, colonialist, imperialist and fundamentally amoral, exactly the characteristics which we see reflected in the person of the sovereign head of state, Elizabeth Windsor.

Constitutionally, the realm of New Zealand is neither a thorough-going democracy nor a monarchist autocracy.  The monarch could legally overturn the will of Parliament, and parliament can legally override the will of the people, but both are unlikely prospects because convention, the perception of popular sovereignty, and therefore the threat of revolution, acts as a continuing constraint upon the way in which the monarch can exercise her prerogatives to appoint the executive or to dismiss the legislature.

Deficiencies and dangers of a "soft republic".

The problem with advocates of a "minimalist" or "simple" republic, who argue that New Zealand can become a republic merely by virtue of having a New Zealand citizen appointed to the position of head of state, is that they effectively ignore the underlying questions of where sovereign authority should lie, and to what extent the New Zealand state, as presently constituted, has merit or virtue.  If a New Zealander was appointed Head of State in the same way that the Queen's personal representative, the Governor-General, is appointed on the advice of the Head of Government, it is a reasonable assumption that not a lot would change.   New Zealanders might become more proud, more confident, and more independent.  They might become less brutal in their dealings with other small nations, and even in their treatment of each other.  But beneficial changes of this kind are more likely to occur where there has been a thorough-going debate over the nature and purpose of the state and sovereign authority.  There would be another problem, namely the question of whether the elected or appointed head of state would be a  sovereign ruler.  (If that sounds unthinkable, then it begs the question of how acceptable it can be to have Elizabeth Windsor or her descendants as sovereign).   Is the notion of sovereignty really necessary?  If so, where should it formally reside?  With parliament? In a written constitution?  With a convention of the people?  With iwi?

Contrary to the popular opinion, popular sovereignty is not self-evidently "good".   In the United States, the person of the head of state, the President, is also the head of government, and "the people" are informally acknowledged to be sovereign.  In practice this means that the American people are treated with arguably undeserved reverence which is easily perverted in the interests of the  politically ambitious, and to the great cost of other peoples around the world.  The President as head of state and commander-in-chief is regarded with undue deference, even while the President as head of government may be exposed to robust criticism.  There are dangers attendant upon any concept of sovereign authority, and the American model of government is no exception.

In New Zealand law the person of the head of state, the monarch, is also the sovereign. The regime itself encourages deference to, rather than reverence for, the monarch, in part because her claim to sovereign authority (which is to say the claim made by statute on her behalf) conflicts with the almost universal presumption of popular sovereignty in a democratic state, and in part because of the realisation that the people are uncomfortable with the "enduring elements of the state" - namely British rule and hereditary privilege - which she represents.  The state is obliged to recognise this reality.  It knows that the colonial history of New Zealand, and its imperial associations, has been bloody and divisive.   Therefore the state cannot safely hang its hat on an institution which represents a legacy that is regarded with ambivalence by a large section of the population, and open hostility by a significant minority.

The head of state, the Queen, is kept tucked away in the wings of the theatre of state.  She is physically and politically remote, not normally seen or heard except through the person of her representative, the Governor-General.  What this situation reveals is not so much the "anachronism" of the monarchy as the essential dysfunction of the New Zealand state, which is unable to either renew its commitment to, or divorce itself from, its colonial legacy.   The state exists in a limbo in which  nationalist political rhetoric  is accompanied by the symbols, forms and rituals of imperial authority.  The circumstances of New Zealand society, in particular the absence of a coherent sense of national identity makes the democratic doctrine of popular sovereignty a difficult one to apply.  So the state muddles on, occasionally flirting with republicanism, but lacking the confident sense of national identity which would enable it to establish a republic.

Some disingenuously suggest that New Zealand society is divided between "Kiwi" and "iwi".  The reality is that it remains divided primarily between Maori and British cultures, as it has been since the early nineteenth century. Historically, the only ways in which the state has been able to deal with this division has been through the strategies of assimilation and benevolent racism, both of which have been  closely associated with the institution of the monarchy.  The state itself is unable to find a way forward.  In theory, it knows that the natural path for a colonial regime leads to the creation of an independent democratic republic.  That is why every recent New Zealand Prime Minister has said that a republic is "inevitable".   In practice the state knows that a republic would either fall into the hands of "one people" reactionaries of British descent, or become the vehicle for a radical indigenous popularism. That is why every recent New Zealand Prime Minister has said of the republic "but not on my watch".

The fading legitimacy of British sovereignty in New Zealand.

"History" is the common means by which a regime seeks to justify its existence to its people and its neigbours.   The monarchy claims a historical right to sovereign authority in New Zealand on the basis of discovery (by Captain Cook), treaty (the Treaty of Waitangi), revolution (the assumption of sovereignty by Governor Hobson in the name of Queen Victoria) and, less commonly, conquest (the defeat of the Maori tribes in the wars of the nineteenth century which provided the pretext for the abrogation of the earlier treaty).   These primary historical claims to right of sovereignty are supported by a series of wars fought in the twentieth and twenty-first centuries (the first and second world wars, Malaya, Vietnam, Korea, Afghanistan).   Wars are the final determinants of sovereignty, because one of the defining characteristics of a sovereign power is the ability to defend its territory and population from external threats.  While New Zealand's wars have not always been prosecuted wisely or with success, they have never ended with the loss of territory, and the memory of those wars is assiduously used to support the concept of the legitimacy of the New Zealand state, first as a client state of the British empire, and second as a  junior partner to the Commonwealth of Australia (the Anzac connection).   Significantly, the historical claims to legitimacy are all based on the assumption that the New Zealand state, while sovereign within its own territory, remains defacto or dejure subordinate to superior powers,  most obviously Britain or Australia.

History, however, is a double edged sword.   The history of the monarchist state in New Zealand is a source of grievance, shame, and anger as much as it is a basis for pride and fidelity.   Therefore ideological arguments must also be  invoked to make the case that notwithstanding any historical mistakes or shortcomings, the regime is best qualified to exercise sovereign authority on the basis of  qualities such as godliness, righteousness, democratic process and its inherent ability to deliver  equity, order, freedom, stability, peace and prosperity.   The monarchy is able to lay claim to these qualities, largely because it has been able to put itself at the head of the established church and the democratic institutions of government, to maintain an outward appearance of sobriety, piety, and domestic morality, and to reign over a society which has been relataively liberal, egalitarian, prosperous and peaceful.   However, the credit which comes to the Crown for these blessings is largely fortuitous and undeserved.   The monarchy represents the privileged, aristocratic, high-church side of British society which promoted the colonial project of the New Zealand Company, with the explicit intention of creating a class society in the image of Great Britain.   Its real legacy has  been war, oppression, privilege, and inequality.  New Zealand's liberalism, egalitarianism and prosperity actually arose out of  the labour and the struggles of  English, Irish, Scots and Welsh working class immigrants who were  low-church and who eventually found common ground with the nationalist, working class and rural Maori who followed indigenous religious and political movements such as Ringatu, Te Hahi Ratana and the Kingitanga.

The rapidly shifting tides of New Zealand society will exacerbate the contradiction between the corporatist, monarchist and imperialist origins of the New Zealand state, and the working class, egalitarian and nationalist values of the population, and may eventually leave the monarchy, and all its institutions, stranded high and dry.    The Church of England is in decline, and now has only limited influence among a minority of the population.  There is a pervasive belief that the democratic institutions of the state no longer accurately reflect the popular will.   There is widespread scepticism as to the character and personal morality of the British royal family.  The social order is demonstrably less equal than it was in the past.  The state system is failing in its duty to prevent man-made disasters such as the Pike River Coal tragedy, or to properly deal with the consequences of natural catastrophes such as the Canterbury earthquake.    Social stability has been undermined and prosperity is increasingly fragile or elusive.

The legitimacy of the Crown can no longer be taken for granted.   It is open to attack from below on historical, ideological and now practical grounds.   The monarchist state is unable to take our people out of their predicament.   The British royal family are inextricably linked with a British race-based system, which, however benevolently administered, cannot provide a lasting solution to the problems of a racially divided New Zealand society.   As representatives of a global order, the Windsors cannot lead New Zealanders to establish their own secure national economy.   As the highest expression of the British system of class privilege, they can do nothing to enhance the egalitarian ethos which provides the only real hope for social stability and material progress in our country.

The political classes in New Zealand, on both the left and the right, continue to vacillate.  They see no way out, no way forward, and no way back.   They see the incongruity of the monarchy.    They cannot directly challenge the concept of popular sovereignty, but they shy away from establishing it in law by implementing a republic.   They believe in their hearts that the monarchy must be retained as guarantor of the vision of the New Zealand Company for a class-based, British ruled outpost of empire in the south seas.

The Republic of Aotearoa must come from the people through a viable and broadly accepted alternative to the hereditary sovereign authority of the British monarchy.   That could be in the form of a confederation model as adopted by the united tribes in 1835, prior to the establishment of British rule.   The head of state in a confederation would not be a symbol of power and privilege, as the present Queen is,  but a Kaitiaki, responsible for protecting the natural environment which is the common taonga of all our people, their rights, their freedoms, and their language.    The way forward is a clean break from the benevolent (or malign) racism, the colonialist economic strategy and the system of  privilege which have been the stock in trade of the monarchist regime.  Parliament  cannot effect such a change, because it is in thrall to the British monarchy.  That change will come from the people themselves, or rather from a people who are not even within the ken of the present regime.