To function properly, parliament requires its principal officers to be both competent and impartial. Shortcomings in the competent department can be overcome by seeking and accepting advice.
If impartiality however is missing it does not matter how competent the incumbents may be, or how good the advice, parliament will just continue to be the tool and puppet of the Government and its representative role and duty to the electors corrupted.
Cook Islanders deserve better. Parliament in 2001 passed Constitution Amendment No.24 Act which effectively allowed the prime minister to select the Speaker.
No competing nominees, no election, no choice, no real opportunity to question the credentials of the person selected or offer other suggestions because that is the way the Amendment read.
Interestingly, this now highly questionable procedure was the creation of the Democratic Party and introduced with precious little explanation -Government wanted to appoint the Speaker; provide for removal from office by a simple majority and give a member Speaker a deliberative vote (previously none) in addition to a casting vote. Equally tantalising now in the present circumstances where the CIP enjoys, benefits from and values this arrangement is the fact that the CIP was hotly opposed to it labelling it “repugnant and reprehensible” and a “badge of shame” and “a politicisation of, and attack, on the independence and impartiality of the Chair” (Sir Geoff).
The Bill passed 17 to 5 on the second reading and 17 to 7 on the final vote. The five and seven votes were the CIP.
Later, PM Henry Puna, now an ardent supporter of the provision because it suits his Government, declared this quite contrary position in 2010 in a rare candid comment on the provision, "That I must say I don't necessarily agree with (it) because as the law stands now only I can nominate a Speaker which means the democratic right of the Opposition to submit a nomination has been taken away".
He had no such compunction however in 2014 when heaping praise on Niki Rattle, his nominee, who no doubt will be his choice again this year.
There are however some legal and procedural opportunities to again contest this unilateral arrangement, and it is these I now wish to advance.
The way the Constitution currently reads is:
31(2) The person who shall be elected Speaker of Parliament and no other shall be the person nominated by the Prime Minister etc etc.
It was not previously thus. The Standing Orders contemplated an unlimited number of proposals for the position (though in reality there would not be that many contenders), a debate on the relative merits of the nominees and then a ballot. What could be fairer? If it eventuated that the winner later proved to be a poor choice, inadequate or biased it would not be the fault of the process.
The discerning reader will detect the contradictions in the way the provision now reads in the use of the words “elected”and “nominated”, and quite rightly so too, because Article 31 in its introductory subclause (1) tells us that the first business of parliament when it meets after a general election shall be to elect a Speaker and we all know what an election means - competing candidates’ names being put forward, debate and then a vote.
Wikipedia tells us that in parliamentary procedure the meaning of nomination is basically a motion to fill a blank in a motion “that (name) be elected”.
The Speaker procedure as now dictated by the No. 24 Amendment is not an election at all. It is a one-sided selection and one wonders why it is still even brought into Parliament given the denial of the long established Westminster practice of inviting candidates from the floor of the House.
In the last two Parliaments prime minister Henry Puna has carefully avoided moving a formal motion, confining himself to the words, “May I in accordance with Article 31 as amended by the Constitution Amendment Act No. 24 2001 now nominate Sir Geoffrey Henry KBE as the Speaker of Parliament”.
That was in 2010. Then again in 2014 "I am honoured to nominate as Speaker of this Honourable House, Mrs Niki Rattle”. Both were seconded acknowledging their motion status but no vote was taken. No matter how you cut it both constituted “motions” and being 'questions before Parliament' required to be decided by a majority of the votes of the members present [Article 34 (2)] indeed the Clerk, who was conducting the proceedings in 2014 correctly described the PM's nomination as a motion in addition to which, Teina Bishop drew attention to the need to vote as he did to the surviving role of the Standing Orders relating to the election of the Speaker.
True, to the extent there is conflict between the Constitution and the Standing Orders the Constitution prevails and the Clerk made that point adding that Crown Law and senior legal advisers whom he would not name, had given him advice which he accepted.
Readers of my many letters will recall my criticism of the reliability of Crown Law advice in parliamentary matters and its propensity to provide opinions which satisfy its political masters by telling them what they want to hear rather than what they need to hear. This would then seem to be just another example.
While Constitution Amendment No. 24, abhorrently in my view, denies parliament the opportunity to choose its Speaker it does not deny the operation of non-conflicting provisions of the Constitution or Standing Orders which are clear and unaffected.
Apart from complying with the mandatory requirement of Article 31(1) that the first business of parliament after a general election is to elect a Speaker, anything further in the parliamentary forum has become a complete waste of time, pointless and a sham unless Article 34(2) operates otherwise the result could just as equally be achieved outside Parliament for all the opportunity it afforded parliamentarians to participate. As currently practiced, the procedure is meaningless to the point of being absurd.
Who would deny that the election of a Speaker is parliamentary business?
The Speaker is supposed to be the servant of Parliament and, as such, Parliament is entitled to a role in the appointment. Parliament elects the Speaker. The Speaker serves Parliament. That is supposed to be the relationship.
As matters stand, however, that crucial parliamentary business is being hijacked by government and the impartiality expected from a servant of parliament is exposed to the criticism that by allowing it to become government business carries with it all the hallmarks which breed the suspicion that a partisanship relationship between Speaker and government has been created.
The bottom line: is the election of the Speaker parliamentary business or government business?
Clearly it is parliamentary business. Therefore, the rules governing parliamentary business are indisputably applicable and the provisions of the Constitution and the Standing Orders that are not in conflict with Amendment 24 need to be respected and observed.
Which means that the motion of nomination has to be put to the vote. Why, you might ask, bother if the PM's is the only permitted nominee?
The simple answer to that is that the PM's first nominee might be unacceptable and the motion loses and that he should then come up with another and so on until an acceptable nominee receives a majority vote.
Of course this makes a mockery of No. 24, but at least it would bring home the message so eloquently left us by Sir Geoff that the whole process was repugnant and reprehensible an opinion although less picturesquely put, but equally clearly acknowledged by PM Henry Puna who now ironically, and selfishly, has embraced it.
This No. 24 Amendment serves no other purpose but to create a Speaker/patron relationship between the government and the chair, and has no redeeming feature to commend it. It should be repealed and insisting upon a strict adherence to the rules of procedure should hasten that outcome if we can but engender some obedience to the rules and recognition by the Queen's Representative that he can be a part of that.
I believe it appropriate, and not in the least bit disrespectful, to alert the Queen's Representative that if a purported Speaker-elect attends upon him for the purpose of subscribing to the Oath of Allegiance and that the means by which that person has been purportedly elected in any way is a result of a breach of the Constitution that it would be unwise to again participate in an unlawful act (involvement in unlawful spending via Executive Council being one other) and that in the interests of a properly functioning Parliament, if the Oath is administered, it will in all probability be challenged in Court because it is my understanding that a majority of members of Parliament do not wish to see the previous occupant return to the Speakership.
To have a person so unwelcomed foisted upon the House by a procedure so politically motivated and in which members' participation has been denied would, I have no doubt, be greeted with extreme scepticism anywhere in the Westminster family and even those not in the Westminster tradition.
While older more mature democracies may choose Speakers from amongst their own ranks, they do so with the primary object of filling the position not just with someone who has parliamentary experience and an ability to seek, and take advice, but one in whom members from all sides of the House can have confidence that the indispensable requirement of impartiality is not only recognised but assured.
Performance against such benchmarks in recent times in the Cook Islands parliament has regrettably been lacking.
In closing, I would urge the Queen's Representative to forward these arguments on to those more capable than I, (and Crown Law), for an authoritative opinion.
John M Scott