16 January 2008

An indigenous head of state: which model?

> NZ Herald: "Moore stirs hornets' nest with constitution ideas" > LAWS179: "Dominion Day Centenary: celebrating history; designing for the future" As is apparent, I'm a supporter of a move to a republic. So I'm pleased to see Moore's calls to progress things. I suspect that part of the problem with getting this issue off the ground though comes from murkiness about what is being proposed and how radical it is. The options are surveyed by Andrew Ladley in his essay on who should be our head of state. His basic point is there are two basic models: soft republicanism and full republicanism. - The former is pretty straightforward and basically involves cutting ties to the Queen and making the Governor-General the President with the same powers and procedures as the Governor-General has nowadays. Simple. Straightforward. The Toyota Corolla option. - In contrast, the latter involves a much more comprehensive approach and looks at questions of appointment of a President, codification of the President's powers, constitutionalisation of the Treaty relationship, etc. A revolution. More difficult. The Rolls Royce option. (A contrasting view is provided by the Palmers in their book, Bridled Power, pp 63-65) Both are possible, but I suspect that Kiwis will, in the instance, only be able to cope with the former. Personally, I think there's some value in the latter but the exigencies of a republic / local head of state mean I think we should probably push for the simply option now. I suspect when the simple option is put to Kiwis there will less objection: it's effectively cementing the status quo, given were are anyway a "de facto republic". Andrew Ladley, "Who Should be Head of State?" in Colin James (ed), Building a Constitution (Institute of Policy Studies, Wellington, 2000), 267-275 (footnotes omitted):
I want to convey three things. First, there is an argument that it is reasonably simple to change the head of state and continue much as we are. In contrast, and secondly, asking who should be head of state may not really concern the options of how to appoint and empower a president, it may engage what I call a 'full republican agenda'. And it follows, thirdly, that the options are really dependent upon the agenda. Lord Cooke asks (extra-judicially) whether it is within the constitutional capacity of one (supposedly 'supreme') New Zealand Parliament to conduct a 'legal revolution' against the Crown, by replacing the Queen as the head of state. He believes, along with notable others, that the suggestion is so profound that it would require fundamental constitutional change -a written constitution certainly, a changed relationship between people and power within the constitution (and a new role for the courts, of course), a careful programme to define the rights and duties on the state in relation to Maori and the Treaty of Waitangi and more. In effect, Lord Cooke is saying that the full republican agenda must be engaged, because in changing the head of state, we unmake the glue which has held New Zealand in its current parliamentary democracy within a monarchy. In particular, many Maori argue that any question of changing the head of state would impact fundamentally upon the Treaty of Waitangi. Hence, should this agenda be pursued, they would anticipate a full-scale constitutional conference to renegotiate their relationship to government. Viewed thus, the 'who' question demands more than its 'how, what, where, when' companions over the mechanisms for having a head of state. Still, there is an argument that New Zealand could avoid all that (in typical fashion, some would say) by minimalist change. I will discuss that first. Soft Republicanism Professor Brookfield observes that New Zealand is already a 'de facto republic', since the Governor-General acts for all intents and purposes as head of state. His position is strengthened by the Queen's apparent position that she should not be involved at all in the constitutional crises of those places where she is still head of state, despite some specific requests that she do so (cf. Australia in 1975, Canada [on several issues, but including Quebec], Grenada 1980, Fiji 1987, Papua New Guinea). On this argument the bonfire of republicanism might be hard to light, since New Zealand may effectively have its republican cake, and be eating it. Hong Kong aside, the process of changing from the Queen as head of state is not big international news these days. How many noticed the recent process where Mauritius became a republic? It was constitutionally easy (an amendment to the existing superior constitution) and hardly raised a political ripple. Soft republicans here might argue that New Zealand could make the same sort of small constitutional splash. Allow me to put this case, because although it is republican in one sense (replacing the Queen as head of state), it does not really seek to alter our conception of citizen and state (what I call the 'full' republican agenda). Changing the head of state in this softer (kinder, gentler, but still effective -- like good tissues) sense, would probably follow a general election fought with this as an issue. The legal changes would include: i. removing the sections from the Constitution Act 1986 which spell out that the Queen is head of state and making it clear that thereafter no heir would be head of state; ii. providing for the current Governor-General to continue in office as president and thereafter for the president to be appointed for a four-year term by Parliament (i.e. effectively by the Prime Minister as at present); iii. providing that the president has in law the same powers as the erstwhile Governor-General relating to governance and that all law is to be read and applied accordingly; and iv. providing that the person would hold office for the term, unless removed by a resolution in the House. It is probably not even necessary to provide for a special majority in the House for removal of the president -indeed, it would be a sign of confidence in the continuity of our conventions if that were not the case. In the Sir Humphrey sense (of 'Yes Minister' fame), it would be a courageous parliament indeed which sought to politicise the office, and an even more courageous president who stepped unconventionally into the political fray to encourage such. Replacing the title of Governor-General with that of 'president: is therefore arguably just a reasonably simple progression from where we are now. As Professor Brookfield noted, the real 'domestication' of the royal powers of the Queen took place in 1986, with the Constitution Act making it clear that the Governor- General could exercise any 'royal' power of Her Majesty in right of New Zealand. The reserve powers of the monarch are often raised as a major issue. But soft republicans would say that the Governor-General could exercise these powers already, and the Queen would never have used them anyway -so apart from providing the source of the powers (which could be continued), any significant monarchical role in governance has become entirely theoretical. Persisting with some uncertainty about these powers being exercised by an appointed president would therefore be consistent with the ambiguity of much of the rest of our constitutional system, dependent as it is on conventions. There is surely no real suggestion that we could not muddle on in an orderly manner, with a respectful political relationship to the new symbol of unity -- the soft-spoken, constitutionally-engaged and occasionally-seen president of New Zealand. Some other important changes would arguably also be developments arising mainly from other factors. Many argue, for example, that the historical shift of power from monarch to elected representatives should be further formalised under current arrangements. This would mainly deal with both appointment and dismissal of the Prime Minister, to avoid any possible dragging of the Governor-General into political uncertainty. But our conventions have proved robust and flexible, and so the issue is not a crisis. And the driver here is MMP, not defining the reserve powers of the monarch for a president -- though republican discussion would undoubtedly further the momentum. Thus, there could be a process by which a newly-elected parliament formally chooses the person in whom it has 'confidence' before the Governor-General (or president) confirms such in office. Similarly, exactly what constitutes 'confidence' should be defined and given a specific means of being tested in the House (via a positive vote of confidence), so as to clarify the terms on which a government would stand or fall. None of this is to suggest that our current conventions will not serve us reasonably, both now and in a soft republican process. I am describing the ongoing hardening of arterial conventions into law, which has been characteristic of most Westminster-derived constitutions (and certainly all of the Pacific versions). The process would be taking place anyway, with the pace often forced when an actor breaks a significant convention (cf. 1984). Soft republicanism would be a convenient, but not really essential, time to do this. Picking up on the Australian process, the choice between an elected or appointed president transfixed the discussion, and is widely regarded as the rock on which the republican option foundered in the latest referendum. In the Australian context this is understandable. But it would seem an odd rock, to the soft trans-Tasman republican who might find it hard to get excited over whether an appointed president would be a political puppet. The office of Governor-General is much less politicised, and we do not have that 1975 hangover. Taking this issue alone, perhaps one could get more than a lecture theatre full of constitutionalists expressing angst about 'previously royal' powers being exercised by an appointed president on a fixed term by parliament, but it seems unlikely. In sympathy with Australian republicans who regarded such as critical, however, we should remember the difficulty of changing the Australian constitution. Those Australians determined to have an elected president would obviously rather wait for head-of-state-steam to build, than dissipate their pressure into another century of failed referenda. But we have our own rock on which this may founder, and I suspect this is the key to who should be the head of state. The Full Republican Agenda In contrast to the soft view I have presented above, a full republican agenda demands the revolution in constitutionalism which Lord Cooke suspected was necessary (and, I surmise, unlikely). The concepts of self, community, tribe, citizen, state, power, governance, law, parliament and, indeed, the constitution itself, become the agenda. We would have to change from seeing Parliament as the Queen's advisers, to seeing political and legislative leadership as the people's representatives within a people's constitutional compact. The Court of Appeal says in a recent case that this has taken place anyway after a century of representative government. Still, the full agenda would demand that the constitution be remade as superimposed higher law based upon the people's bargain, not something handed down from the Queen, or her Parliament (cf. Tonga, where the constitution is the 'gift' of the nineteenth century monarch to his subjects). On this view, how one empowers the head of state goes to the core of republicanism -and there may be Tom Paines in New Zealand (indeed, in this audience) who will excite a genuine debate about a president needing the legitimacy of popular mandate to replace the historical symbolism, and constitutional lynchpin, of the monarchy. It is reasonably simple to define the options by which a president might take office. These would include the prime ministerial appointment, parliamentary resolution, direct election, some sort of indirect election via another body (a second chamber?), and in the New Zealand context, it may even include a demand that the person be a Maori, chosen by Maori representatives. Equally, myriad republican parliamentary democracies illustrate options for defining the role and powers of a president. The broad policy issues are well-known, revolving more around the exercise of executive power, than who is head of state. In a monarchy, the executive power is vested in the Queen, but effectively all her functions are carried out by her Governor-General, and the actual exercise is by the elected Prime Minister and Cabinet. In republics the general rule is that the more directly-elected the president, the greater the democratic mandate and the possibility of the independent exercise of power. It is as if the reserve powers of the monarch are pulled off the bench by rival democratic legitimacy, into the political play. To deal with potential overlap and rivalry within one branch (the executive) therefore demands definition of the nature and extent of their executive powers existing alongside those of the Prime Minister and Cabinet. American republicans spent powerful intellectual energy on this in the eighteenth century, and the Federalist Papers remain classic expositions of the issues. The decision to separate executive and legislative powers was conceptually stark. Ironically, the 1776 presidential executive mirrored the powerful eighteenth century European monarchs, save that the 'elected monarch' held office only for limited periods. Other than the French revolution, the fudged process by which power passed from many other European monarchs to elected representatives has always blurred the supposed separation and, of course, the issues persist today. But even in America, the boundaries between executive, legislative and judicial powers have been constantly under stress, and form part of the warp and weft of American constitutional and political fabric. Those states which have adopted the French model faced the same issues, essentially following the unique Fifth Republic's compromises between elected president and parliamentary prime minister, carefully defined in constitutional law, but still often producing surprises (cf. 'co-habitation', where president and prime minister are from different parties). The Irish formulation has preserved executive power in the Cabinet, and at the same time tightly codified the circumstances in which the elected president may exercise discretion and essentially removed the possibility of surprise. Other parliamentary constitutions authorising independent presidential power have been spectacularly unsuccessful in keeping the president out of politics -- as in Pakistan where the President has several times removed an elected Prime Minister who still commands the confidence of the House. This has added to the sense of constitutional crisis and probably triggered military involvement -- often. Quite apart from presidential executives, even these few examples illustrate that the nature and extent of independent presidential power can be a critical factor in constitutional stability in a parliamentary system. My sense is that the Irish formula offers the closest continuity to the non-active executive which is part of the New Zealand constitutional experience, but which would also allow democratic legitimacy to be the touchstone of both the moral and symbolic roles of the head of state. It requires at least some degree of the 'full' republican discussion, whilst also being the softest of the change options. Still, I return to my argument that any discussion of this issue may founder on another rock in the New Zealand context. As Janine Hayward has shown, the 'Crown' has far more symbolism to Maori that just the person who is the head of state. So any suggestion of change would flush out a full-scale constitutional debate within Maoridom. It may be that the intensity of this would take most New Zealanders by surprise, and that it would produce uniquely New Zealand demands which would overtake the Irish model. In the Treaty area, as in many others, New Zealand is muddling along with a raft of understandings, and misunderstandings, which we are reluctant to define precisely. However, Treaty matters are being focused by litigation and legislation, and pressed further now by the politics of the Maori seats under MMP. The 'partnership' view of the Treaty arguably sees the tribal descendants of Maori signatories as being in an historic, and continuing, multilateral Treaty relationship with the monarch. This is summarised as each only conceding governance, in return for protection of tribal rule and resources, and equal rights of citizenship. On this view, if the British monarch is withdrawn, there is no longer a Treaty relationship to 'the Crown', and rights of tino rangatiratanga may be strongly asserted. There will surely be demands that such be constitutionalised in a new relationship with the state, with rights and duties being conferred on people because of their membership of a particular hapu or iwi. In the New Zealand context, this is the full republican agenda. These demands are, of course, already being asked of the Treaty of Waitangi under existing constitutional arrangements. When the government sought to sell its state assets in the 1980s, it produced an explosion of litigation because the Crown would no longer be the effective owner of such, and so able to fulfil its possible Treaty obligations. How much more dramatic would such demands be if the government (or the people) proposed to remove the Crown itself from the relationship? Of course, the political scientist knows that this is political symbolism, not tax-paying reality. The relationship in New Zealand is already one between its citizens in a democracy, and the symbolic entity is just that. For some, the real virtue of the republican agenda is that it will strip the mask from the democratic reality, and let taxpayers and communities face each other directly, rather than through the symbolic mediation of 'the Crown'. For others, the prospect is daunting. Some would argue that New Zealand currently does not have the historical emergency, the political confidence or (as with Mike Moore's attempt to fire up the issue) the mandate to engage in this full version of the republican agenda. I suspect, however, that such a fundamental debate will be necessary at some time. As with other issues (like appointment and dismissal, and parliamentary 'confidence'), if republican sentiment should find real yeast, this will bring forward the date. As with the first part of this discussion, then, the issues are upon us already, and we are muddling along in New Zealand's durable, pragmatic, 'conventional' way. On the Treaty, especially, perhaps this has some general virtue, because it blunts the cutting issues that a society may not be confident that it can handle. This was always the case with Westminster constitutionalism, where the powers of the monarchy have been removed by a thousand blunt cuts, rather than by revolutionary guillotine. However, the argument has been made often that Maori should not be required to make a thousand single claims for what they believe are fundamental rights sourced in the Treaty -they seek one constitutional statement and process. A good current example lies in the arguments for a share of the radio spectrum. But constitutionalising ethnic rights is hard law, hard politics and hard to make effective. The attempt has broken many a state, and the precedents are not all happy even where it has not. We should therefore not be surprised that this may occupy several generations of good minds yet. In case it is not clear from the above, it is surely the case that changing the head of state with any part of the full republican agenda demands creating a new constitution which will control legislative power and give the courts jurisdiction to interpret the constitution. We are talking about overthrowing parliamentary supremacy so that basic principle and process be spelled out in a superior document. In sum, what I call 'soft republicans' may argue that New Zealand could simply replace the Governor-General with a president, and public life would continue much as at present. This is possible, but perhaps we should anticipate the full agenda. That means that we will have to discuss much more than the options for how to change from Governor-General to president, including how to appoint or elect, and what powers, specifically, should be given to the president. These are important issues, but they arguably miss the point. Unlike Australia, the New Zealand republican issue is arguably not about who appoints or elects, or what powers a head of state might have. Our republican rock may be how to constitutionalise the relationship between Maori and others if we were to tear the Crown from the head of state.

Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand's Constitution and Government (OUP, Oxford, 2004), 63-65 (footnotes omitted):

Both political and constitutional arguments are involved in the republican debate and it is important to understand the differences between these. The political arguments in favour of change revolve around nationhood: a hereditary monarch who reigns over the United Kingdom should not also be the Queen of New Zealand, where she does not live and from which she is physically far removed. An egalitarian country, it is said, ought not to have as its head of state a wealthy British aristocrat. It is a symbol of our government that conveys false messages about what New Zealand stands for and the values it holds. It also imperils this country's sense of independence in the eyes of other nations and New Zealanders' self-respect in their own sense of nationhood. These are arguments about New Zealand's national identity. They are similar to the arguments for abolishing the right of appeal to the Privy Council, which sits in London-this now seems likely to occur in the next year. The arguments are linked with arguments that, in an egalitarian country, the principle of heredity should play no part in the selection of people for public office. The people should choose the head of state. Even at the political level, however, these arguments encounter some difficulties. Political neutrality in a head of state in a Westminster government is a vital advantage of a monarchy, given the discretions that head may be called upon to exercise in a narrow range of situations. Election of a head of state will not ensure political neutrality, rather the reverse. The incentives resulting from the holding of elective office are quite different from those affecting a hereditary head of state. Imagine, for example how a president would campaign for re-election. Furthermore, the personal power of the Queen and her Governor-General is exceedingly limited. Confining the power of an elected head of state may not prove easy since he or the would have some form of democratic mandate. Ideally, the head of state should be above and beyond politics, a symbol of national unity that transcends the government of the day. In addition, many Maori feel that there is symbolic value in the monarchy as a party to the Treaty of Waitangi. If New Zealand becomes a republic, there mould likely be political pressure to consider anew the constitutional place of the Treaty of Waitangi. There would also be constitutional implications for Tokelau, Niue, and the Cook Islands if New Zealand became a republic. These states each have formal historical, and some current, constitutional association with the state of New Zealand and, together with New Zealand, form part of the 'Realm of New Zealand'. As it would seem silly for them to continue to constitute the Realm of New Zealand without New Zealand, each would each need to decide whether to become a republic or remain a monarchy. The legal powers of the Crown are exercised on the advice of constitutionally responsible ministers. Remove the monarch and it may be necessary to dismantle the entire structure to find a stable substitute. Andrew Ladley has suggested that 'soft republicans' might argue that New Zealand can become a republic simply by replacing the title 'Governor-General with that of 'President'-changing the head of state to a President appointed by Parliament rather than the Queen who appoints a Governor-General on the advice of the Prime Minister.'" But in practice this would not necessarily be a simple undertaking. Such a change should proceed only on the basis of widespread public discussion. Such discussion is unlikely to be confined to a technical change but rather would extend to aspects of the constitutional powers of the Governor-General. Those powers, which look acceptable as exercised by an appointed Governor-General on the basis of historical caution, might look somewhat more threatening if exercised by a President able to exercise the political power of some form of democratic mandate. As Lord Cooke has put it: 'Let there be no mincing of words. A revolution it would be – and not necessarily only within such dictionary definitions as "a great upheaval" or "radical change in government". Arguably it would also be illegal. There is no such thing as minimalist change in this area in practice. We should not simply replace the Queen with a President. The legal powers of that person would be awesome and unacceptable unless a careful study were done to define and confine the powers. The key issues would be how the new head of state would be chosen and what powers the office would enjoy. However strong the case for making New Zealand a republic may be in political terms, and it does not seem overwhelming, there are many legal and constitutional fish-hooks to be dealt with in bringing such a change about; it is a formidable legal and constitutional undertaking. These difficulties need to be weighed against the political arguments. Such a move should be preceded by a thorough and authoritative study that deals with all the technical legal issues as well as widespread public discussion of the political arguments. We expect that New Zealanders will continue to tolerate their British monarch with uninterested affection until some event occurs that forces them to consider some change to it. The death of Queen Elizabeth II would be such an event. At that point, a change to a republic will occur at a pace determined only by the time taken to work out a suitable alternative model.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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