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CLIVE BOONHAM: Swearing in of new MPs: The constitution versus the Treaty activists

Updated: Dec 3, 2023

The opening of New Zealand’s 54th Parliament celebrates the start of the new three-year Parliamentary term. It is scheduled for Tuesday 5 December 2023 at 11 am.

As part of the procedure MPs will be obliged to swear the oath of allegiance to the reigning Sovereign of New Zealand, King Charles the Third.

It will be an intriguing confrontation between the Constitution of New Zealand, as set out in the Constitution Act 1986, and those MPs who believe that the Treaty is part of our constitution and mandates co-governance or partnership.


How to watch it

The oath of allegiance

At the opening of Parliament section 11(1) of the Constitution Act 1986 requires all new Members of Parliament to swear an oath of allegiance to King Charles the Third:

11 (1) A member of Parliament shall not be permitted to sit or vote in the House of Representatives until that member has taken the Oath of Allegiance in the form prescribed in section 17 of the Oaths and Declarations Act 1957.

The oath of allegiance is in the following form:

I, [specify], swear that I will be faithful and bear true allegiance to His Majesty King Charles the Third, His heirs and successors, according to law. So help me God.

That means that all the Treaty activists in the Labour party, the Greens, and Te Pati Maori will be obliged to swear the oath of allegiance to King Charles the Third.

If they don't swear the oath they cannot sit or vote in Parliament and they do not get paid.

Several of the new Te Pati Maori MPs expressed shock in their induction process at Parliament when they were told of the requirement to swear the oath of allegiance.

Refusal to swear the oath

There is no way to avoid swearing the oath if one wants to become a sitting member of Parliament. There is effectively no appeal to the courts as there is no "wriggle room" in the legislation. Any challenge to the courts would be a challenge to the constitution, and judges are bound by their judicial oath to "well and truly serve Her [or His] Majesty [specify as above], Her [or His] heirs and successors, according to law".

Canada has similar issues arising with some anti-monarchist MPs refusing to swear the oath of allegiance.

The Canadian case of Wirring v Law Society of Alberta 2023 ABKB 580 (CanLII) involved the refusal of a lawyer of the Sihk religion to swear an oath of allegiance to the Queen on his admission as a solicitor. He argued that his religion required loyalty to Guru Granth Sahib and the Khalsa, and he could not swear allegiance to another sovereign.

The court held that the oath was not an oath to the Queen as a person but as a symbolic oath to constitutional democracy by those seeking to be barristers and solicitors [117]. In that sense, the Oath of Allegiance in the Legal Profession Act was even more profound than the oath to become a citizen: it represented not only a promise to abide by Canada’s form of government but also to maintain and uphold the rule of law and the Canadian constitutional system [118].

An MP's oath in New Zealand would be even "more profound" given that an MP is part of the Legislature of government and responsible for making laws.

I can find no precedents in New Zealand law but if the courts of New Zealand followed the Canadian precedent then those MP's who maintain that the sovereignty of the Crown is not absolute but is currently shared with Maori pursuant to the Treaty of Waitangi, either through co-governance or partnership, would be seriously compromised if they swear the oath

Subsequent breaches of the oath

It could be argued that the oath only relates to future actions - "I will be faithful..." - and not to past actions. So historic actions may not be relevant.

However, it will be interesting to see what would happen if an MP swears the oath of allegiance to King Charles and then subsequently breaches the terms of the oath.

Te Pati Maori MPs do not accept that full sovereignty of New Zealand is vested in the Crown. There are warnings verging on threats of protest and even violence from Te Pati Maori, the Greens and the Labour Party if the new government takes certain actions to define the meaning of the Treaty, and therefore the role of the King. The likelihood is that the absolute sovereignty of the Crown will be challenged by sitting MPs.

The Canadian House of Commons Procedure and Practice states:

Breaking the oath of allegiance is a serious offence and any Member whose conduct has been determined by the House to have violated the oath could be liable to punishment by the House.

There appears to be no New Zealand ruling on the matter.

Failure to swear or affirm the oath of allegiance

In 2011 Hone Harawira, the former Maori Party MP, was to be sworn in as MP for Te Tai Tokerau, but he attempted to read out an oath in which he swore allegiance to the Treaty of Waitangi rather than the Queen. The Speaker, Lockwood Smith, refused to swear him in after he would not deliver his affirmation as dictated by law. The Speaker interrupted him and informed him he must leave the Chamber and "return on a sitting day when he is determined to make the affirmation according to the law of this land".

In 2020 the two Te Pati Maori MPs also put their own mark on the oath of allegiance, with Debbie Ngarewa-Packer carrying a mere for hers. As Māori Party co-leader Rawiri Waititi made his way through the House to swear his allegiance to the Queen he promised to challenge the authority which belittled the Treaty of Waitangi. "Ka tohe au! Ka tohe au! Ka tohe au," he said during the waerea which translates to "I will challenge, I will challenge, I will challenge".

The Final Word

The final word applies to New Zealand as well as Canada:

Of course, some individuals oppose the monarchical aspect of our country, which many feel is anachronistic. Canada may one day renounce the monarchy and become a republic, as several other Western democracies have done. However, until then, the principles of constitutionalism and the rule of law require elected officials to uphold the Constitution — Canada’s supreme law — and the system of democratic constitutional monarchy it establishes.


Latest News

On 1 December 2023 Te Pati Maori published a press release on its Facebook website:

Press Release

1 December 2023

An Oath to our Mokopuna

On Tuesday, MPs will be required to pledge an oath of allegiance to ‘His Majesty King Charles the Third, His heirs and successors’ before they can be officially sworn into Parliament.

This is symbolic of the colonial power that Parliament places above the mana of tangata whenua, and the constraints that are placed on Māori MPs representing their people.

It is not the equal partnership that was consented to by Te Tiriti o Waitangi.

Tangata whenua have always honoured our side of Te Tiriti, and we will continue to do so. We will not allow anybody to treat us as second-class citizens on our own whenua.

Māori owe no allegiance to the genocidal legacy of the British Empire.

There is no honour in the Crown. It is tainted with the blood of indigenous nations, and its throne sits at the apex of global white supremacy.

To the sovereign of England, we say history will judge whether you have the moral capacity to shoulder responsibility for your family’s heinous legacy. It is beyond you to restore its honour - the harm caused by your Crown is now intergenerational and irreparable. Indigenous blood stains the throne you sit on.

We do not consent, we do not surrender, we do not cede, we do not submit; we, the indigenous, are rising. We do not buy into the colonial fictions this House is built upon.

Te Pāti Māori pledges allegiance to our mokopuna, our whenua, and Te Tiriti o Waitangi. We will continue to do our best by you, in accordance to our tikanga, amongst the monsters whose portraits still hang on the walls of Parliament.

— with Hana Rawhiti Maipi-Clarke moo Hauraki-Waikato and 5 others


Clive Boonham is a retired Barrister and Solicitor of the High Court of New Zealand. This article first appeared at The Treaty Facts

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