The recent Herald commentary by Ewen McQueen takes us further into a thoughtful consideration of the Treaty of Waitangi and the constitution. Using Sir Joseph Ward's metaphor that "there can only be one sun in the sky", McQueen showed why the post-1987 idea of a Treaty "partnership" is not true to the original Treaty. He concluded by noting that most chiefs agreed to give absolutely to the Queen the complete government over their land in return for guaranteed protection of chieftainship.
According to McQueen the constitutional review may help us find new ways for chieftainship to be expressed. I agree, the issue of chieftainship is crucial to the current national discussion convened by the Government's Constitutional Advisory Panel. So what is the chieftainship issue?
If chieftainship still exists to be "expressed" then so too must the tribal political system of 1840 also exist. After all, to exercise chieftainship one must be a chief of something. This does appear to be the case. Who can ignore the existence of iwi today? The revived tribes go from strength to strength. It seems self-evident that the tribal kinship system that framed traditional Maori society is alive and well, albeit in a modernised form.
A lot rides on this point. Present-day iwi insist that they are the inheritors of the past. Their claims for greater political power, even constitutionally recognised power, and for vast economic resources follow from this premise of tribal revival. The vital importance of the Treaty is as the document of iwi inheritance, hence iwi leaders insistence that the Treaty be included in the nation's constitution.
Yet how can a traditional tribal system be revived when it was destroyed by democracy? Tribalism and democracy are incompatible - they cannot exist together as political systems in the one nation. As the late New Zealand historian Professor Peter Munz noted, the condition for democracy is everywhere the end of tribalism with its birth-ascribed inequality and exclusive kin membership.
The incompatibility goes deep into the very structure of politics. Tribalism is based on principles of inequality. Democracy is based on equality. Kin status is what matters in the tribe; citizenship is the democratic status. Tribalism is exclusive. To belong you must have ancestors who were themselves born into the system. Democracy by contrast includes people from all backgrounds. The matter of who is included and who is excluded touches all areas of New Zealand life. Many New Zealand families have members who are Maori and members who are non-Maori. What would it mean for New Zealand if this division were to become a political division throughout every level of our institutions?
Those wanting to place the Treaty into New Zealand's Constitution must address the implications of the fundamental incompatibility between democracy and tribalism if the constitutional review is to have any real purpose. The equality versus inequality, inclusion versus exclusion incompatibility goes deep into the very nature of the political system. Democracy has three elements: the nation, the state, and the citizen. The nation is the overall framework and idea we have of ourselves as the nation New Zealand. The state is parliament and all the institutions and systems of government. Citizens are the subjects of the nation-state and have rights that flow from along with responsibilities to the system.
The principle of universalism is the base upon which these three elements rest. Indeed, democracy could only become a political system once this principle was widely accepted. Universalism justifies the equal status of the citizen. It justifies our human rights, including the right to have a cultural or religious identity. Democratic universalism doesn't rule out various forms of cultural identity within the one nation. Tribalism does. Democracy separates political status from cultural/racial identity. Tribalism is unable to do so.
The place of religion in New Zealand is a good example of the division between political status and identity. Many New Zealanders have a religion but their religious identity is not part of the political arrangements, although the right to exercise their religion is. Race and culture are like religion - an identity but not a political status. We meet in the political sphere as equal citizens not as members of a religion, a race, or a tribe.
For this reason race or cultural identity cannot be included as a political status in a constitution. What a constitution can include, and New Zealand's constitution already does, is the right that each individual has to exercise his or her cultural identity. It is a right enshrined in legislation which protects the ongoing identification people may have with their racial heritage. It is a right that can exist only because of our equal status as citizens, a status that comes from the universalist principle that we are all equal as human beings. The right of people to belong to and practise their iwitangi in society at large but outside the political sphere is guaranteed by democracy's principle of human rights.
This takes me back to the question of chieftainship. Can chieftainship be exercised in a democracy? The comparison with religion holds the answer. Just as bishops and priests lost their considerable political power to democracy's system of accountable leadership, so too must today's iwi leaders accept the same limitations. Their influence on the political system should be that of any other social organisation or business corporation. Just as one sun is the sky is true for the nation's sovereignty so it is true for our institutions. Democracy can only exist in one unified nation with a constituted government accountable to its equal citizens. Its three elements must stand united upon the foundation of the universal human being.
Dr Elizabeth Rata is an associate professor in the School of Critical Studies at the University of Auckland and a member of the Independent Constitutional Review Panel.