In the existing Crimes Act 1969, an “indecent act” between two men is punishable with up to five years’ imprisonment; consensual sodomy gets up to seven years’ in jail.
These crimes were removed in a 2017 Crimes Bill amendment that was referred to a select committee before last year’s election, and then after the election to the new select committee. It is that new committee, chaired by Tingika Elikana, that is recommending Parliament again criminalise homosexuality.
It should be noted that Elikana is not announcing the recommendation in a personal capacity.
As chairman, he is announcing the position of a committee that was also comprised of members from both sides of Parliament: Selina Napa, Tetangi Matapo, William Heather, Tereapii Maki-Kavana and Patrick Arioka.
They and their predecessors on the previous select committee considered submissions from Te Tiare Association, representing the lesbian and gay community and supporters, from the Religious Advisory Council, and from other members of the public.
That is the role of the select committee, and it is critical to our democracy: to listen to views from the public and take them into account before making their own decision about what (if any) changes to make to a bill.
The select committee is the only place in the Parliament in which the public are guaranteed the right to make their voice heard; furthermore, the select committee’s report is the only part of the law-making process in which MPs from both sides of the Chamber are obliged to explain their reasons for changing the law.
Government may prefer Elikana not speak publicly about the select committee’s recommendations, but that is his constitutional role as select committee chairman: to listen to the public then report back to them, on behalf of the committee.
Whether or not one agrees with the select committee’s decision – and undeniably, the country is divided – there is a need for leaders like Elikana to engage with the public in maintaining a functioning democracy.
Parliament must also pay heed to the Cook Islands Constitution, which requires the law to protect all people from “discrimination by reason of race, national origin, colour, religion, opinion, belief, or sex.”
There are those both for and against the freedom of individual Cook Islands to express their love for their partner in the privacy of their own homes without the police banging down the door. Whatever one’s view, the select committee’s announcement gives you the opportunity to put your case to your MP, to have your voice heard.
Eventually, the onus will be on Parliament’s 24 MPs. They will have the final say on the Bill. If anything can justify their big pay rises, it is the responsibility of making the big decisions like this one.