It should not be necessary in a properly functioning democracy to be forced to have recourse to the courts when constitutionalism, the rule of law and our democratic ideals are being questioned and when immediate action is needed, which a judicial process would be unlikely to deliver.
But what other forms of redress remain, when the principal players ignore any challenges to their actions, or to their responsibilities, and civil society is either bereft of an opinion or paralysed from expressing it? And this while over six weeks have elapsed since a challenge to the Queen’s Representative to state his position and tell the people of this country where he stood on the parliamentary evidence available, that his precious CIP government had lost the confidence of the House and any claim to be his lawful advisers.
And how convenient that Government House now announces the closure of its office from January 7 to 21 (the date on which a crucial by-election is scheduled), thus further avoiding addressing this question for another two weeks and potentially extending the illegitimacy of the government (if that is what it is confirmed to be), while no doubt praying that the by-election result favours the government.
Apart from a single misguided comment from the CIP’s recent electoral petition hearings’ legal champion, there has been nothing from the practising lawyers, and attempts to kindle some sense of responsibility in the Law Society to live up to its credo engendered not one comment, despite the fact that it had plenty of time to respond before the Christmas break.
Furthermore, while we have been steadily going off the rails for several years now, and despite numerous appeals for help and guidance over that time to several well-recognised and eminent overseas constitutional luminaries - and acknowledgment that we have some serious problems, reluctance has been the main feature in response to those approaches.
I don’t know whether the New Zealand High Commissioner reacted favourably to my suggestion that the attention of the New Zealand Governor-General should be engaged, but as an earlier endeavour to do that proved futile, I have to assume that the continuing official silence is confirmation of a similar stance on this occasion. And in the event that a previous tactic (in a Western Nigeria context) of treating such issues “with masterly inactivity” was being applied here, I would suggest that this is far from relevant in the present circumstances while also noting that refusing engagement only strengthens a wayward government’s belief that it can continue to act with impunity.
So what does that leave the Palace?
Brian Mason's letter to CINews on December 27 commenting on my two letters of November 28 and December 22, would have benefited from more research on his part, distinguishing between votes of censure and those of confidence. After this he may well have chosen not to submit it, or at least not in the vein he chose, and if his colleagues in the profession were content that he may have spoken for them, that would have been a mistake.
As there is nothing particularly esoteric about the plain language of Article 14(3)(b) I am surprised there was difficulty with it. Other provisions - yes I would concede where there is an
interdependency or other nuances, like whose decision it is to decide an election date (a provision Mr Mason had some difficulty with in the electoral court), but plain language- no.
I had to re-read Mr Mason's letter twice because I could not believe the contradiction he so eagerly adopted. On the one hand he correctly quotes Article, 14(3)(b) which states the alternatives.
Failure to secure the support of a majority (13 votes) on a no confidence motion (censure) means it loses (defeated). Failure to secure the support of a similar majority on a motion of confidence, likewise.
Now as a government is unlikely to move a motion of no confidence in itself (however justified), such a motion would come from either the Opposition or - Continued on page 9
the cross benches and the words “no confidence” or some other unmistakable variance of them would be integral to that motion.
On the other hand, a motion seeking an expression of confidence in Cabinet, which again could take different forms, is unlikely to come from the Opposition benches and, clearly, by its very nature and purpose, would never contain the words “no confidence in Cabinet” - they being the antithesis of that purpose. Yet Mr Mason avows that the absence of those words in DPM Mark Brown's September 28 motion takes the motion beyond the scope of Article 14(3)(b). What a breathtaking flight of fancy!
What further compounds Mr Mason's confusion, and error, is that one cannot get any clearer language than that of Mark Brown’s motion, namely: “That this Parliament expresses its full confidence in Cabinet” and the unequivocal declaration by the prime minister, which followed Opposition Titikeveka member Selina Napa's challenge, that this was a 14 (3)(b) confidence motion in every sense.
On Mr Mason's analysis however, because the words “no confidence” do not appear there anywhere (and why would they?), the motion in some weird way does not qualify as a confidence motion. Even if the PM and Mark Brown now wanted to join Mr Mason down this garden path, their own actions and recorded comments would mock them.
For the benefit of Mr Mason and your readers, let me give another example of how a government could be defeated within the compass of this particular provision and wherein the words “no confidence” do not appear. It is one which people could readily relate to because it is still very controversial, and while temporarily not commanding headline attention, has not gone away by any means, namely UN membership.
I do not believe for one second the prime minister and his deputy, Mark Brown, have abandoned their dream of the Cook Islands becoming a member of the United Nations.
The prime minister sees his days as Prime Minister receding and he needs an easy retirement job. Cook Islands Ambassador to the United Nations admirably fits his vision of how he should be properly rewarded consistent with the lifestyle he is accustomed to and Mark Brown needs him gone in order to ascend to what he believes is his preordained destiny as prime minister.
Both recognise UN membership and the loss of New Zealand citizenship are hugely contentious issues, but the prospect of sitting at the big table and being treated as equals, not to mention all the other immensely appealing personal benefits and realisation of ambitions, are overwhelmingly compelling.
Undeterred, and supported in the knowledge that the entrenched sections of the Cook Islands Constitution Act 1964 have been so weakened that UN membership is no more than an extension of the development of our international personality which is already occurring, they are prepared to stake these dreams - and the future of the CIP government, by making UN membership a confidence issue in parliament - relying also that the New Zealand citizenship protection in S. 6 is similarly corrupted by association.
To be assured of victory, the whips come out. Government absolutely has to be assured that it has the numbers and can reach, or cross that threshold of 13 votes. It makes all sorts of promises to its own team of the wonders that will accrue to them, and their constituencies, for their obedience. It sends feelers out to Opposition members in a bid to attract defectors and when it believes it is ready, gives notice of the prime minister's intention to move:
<retain bold>”That in terms of Article 14(3)(b) of the Constitution this House accepts, endorses, supports and confirms a Cook Islands' application to become a full member of the United Nations”. <end bold>
I do not personally believe that the absence of the word “Cabinet” in the motion is of any significance, but if that should be of any moment, it could easily be inserted.
Rightly or wrongly, that pesky Standing Order 397 is dispensed with. Although, in view of the terms of the motion there should be no additional need to state it, the PM does what he did on September 28 and made it abundantly clear that this was a Confidence Motion. By Mr Mason's strange reasoning however, this motion could not possibly be a 14(3)(b) motion because the words “no confidence” do not feature in it. How he explains that, I have no idea.
Parliament launches into a fierce debate. Government tries to move closure and hasten the vote and while the Speaker, as is her way, is inclined to oblige she has to back down when finally her bias is successfully challenged by those many members, from both sides, who have suddenly woken up and found their voices and realised all the implications of what was going on.
The debate continues into the next day. The papers are full of it as is social media. The phones are ringing on talkback. Government is employing the same rushed and procedural abuse strategies it uses to pass appropriations to get its way and stifle enquiry and debate. The public is
up in arms. No time for petitions, which are ignored anyway. A march on parliament and lobbying of MPs brings enormous pressure to bear. Members are wavering as the realisation dawns on them that re-election is unlikely next time if they flout the public outrage.
Government pays no heed. Suggestions that the matter go to a select committee are dismissed. The PM was determined that the matter be resolved quickly on the floor of the House but is now
prepared to wait until all those members intending to speak have spoken confident that he has whipped his members into line and that covert arrangements with some rogue Opposition members will deliver the result he wants.
They do not, however. He has 12 CIP members in the House for the crucial vote. There are ayes and there are noes. There is foolishly no division and members are not required to stand to corroborate the voices. The Speaker declares the motion carried. The sitting is then adjourned and the government, while stunned, puts on the brave face and claims a victory trusting that if it went that far, the courts would uphold that tenuous argument that when the Speaker declares a motion is carried the courts would not interfere (meanwhile completely forgetting that we have a Constitution to uphold).
Assuming that the ayes were only 12, what is the position of the Queen's Representative? There is no evidence that the government obtained those vital 13 votes or for that matter even the 12. Maybe some of its own members had second thoughts. Did this then constitute defeat in terms of Article 14(3)(b) and should the appointment of the PM consequently be terminated?
That is exactly the position reached on September 28 and the question I posed for the QR, except in our example we have not adjourned the House sine die and the QR could therefore insist that at its next sitting, the voting be clarified. There would be some procedural hurdles to overcome, but these would not be insurmountable.
Invoking the Executive Council procedure in September could have achieved the same thing, but it was not, so the legitimacy question remains unanswered.
Should the Palace therefore be advised that Her Representative has had over three months to address this question and has failed to do so and that the CIP government therefore continues to govern and spend the public revenues under questionable authority?
Finally, did the QR obtain an authoritative opinion or are we to conclude that Mr Mason is continuing to receive instructions and his is the official response?
If that is the case, Cook Islands' constitutionalism is being seriously endangered for want of appropriate action.
John M Scott