John Scott: Confidence ‘shambles’

Saturday 3 October 2020 | Written by Losirene Lacanivalu | Published in Editorials

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John Scott: Confidence ‘shambles’
With few sitting days per year, the Cook Islands Parliamentary chamber is often empty and devoid of the vigorous political debate that comes when lawmakers come together. 20032507

OPINION: The motion of confidence in the new prime minister is a constitutional requirement and if brought to the House in compliance with the Standing Orders would be in order, writes John Scott.

Wednesday September 30, 2020 will be remembered not just as another day in our parliamentary history of procedural shambles but one where we took mismanagement, abuse of the rules, incompetence and a blatant abdication of impartiality to new heights.

So, what’s new one might ask? What’s new just happens to be that all these appalling habits conjoined to aid and abet the fulfilment of Government’s closely planned day’s activities, and intended progression, with no allowance, nor tolerance, for anything which might impede the scheduled gathering at Government House to install its choice of new Prime Minister.

And things started going off the rails pretty quickly following Henry Puna’s hour-long valedictory speech and the unprecedented playing of his constituency’s song of praise and adulation. I was just surprised Mr Puna had not organised a dance team to be there as well to round off this further reshaping, and departure, from the parliamentary tradition we subscribe to.

It was significant I thought that when the Speaker invited any Member to speak in response to Mr Puna’s address none was forthcoming possibly because they were so overwhelmed by the emotion of the moment (or under instructions to hasten events).

Announcing that his resignation was being then delivered to the Queen’s Representative, Mr Puna then proceeded to move a motion of confidence in Mark Brown to assume the prime ministership. This is a constitutional requirement and if brought to the House in compliance with the Standing Orders would be in order.

It was not however.

Such a motion would normally be an invitation for supporters, and opponents to expound on the grounds why, or why not, the motion should be supported or defeated and in doing so trace the good and bad points of the candidate but, as earlier, none was forthcoming from the government bench, probably again under instruction.

This would also be the time and opportunity to advance the name of another candidate and the promotion of that person’s greater suitability and whether there were any potential criminal charges pending against any of the contenders.

The Opposition however did have something to say and it was not what the Government wanted to hear. Selina Napa, in speaking to the motion questioned the motion’s compliance because although Standing Order 397 is badly worded it still states certain prerequisites for confidence motions and Mr Puna’s motion fell well short of satisfying those. Leader of the Opposition added fuel to the argument which effectively sidelined debate on the motion which quickly became one on the Standing Order where breaches of the rules of debate occurred.

The Speaker and Mr Puna raced into damage control in an effort to protect their plans for a seamless transition and preservation of the Government’s programme. We were to hear some fancy contortions and biased interpretations of the constitutional provisions viz a viz the Standing Orders and a sudden spurt of enthusiasm for the supremacy of our Constitution and the need to honour its provisions.

Mr Puna also threw in there the constitutional protection from the involvement of the judiciary in the proceedings of Parliament which notion is repudiated in case law but telling that it should be mentioned, displaying as it does this administration’s history of ignoring or trampling on procedural requirements which protect Members’ rights and which the Speaker makes no effort to arrest and which, on this occasion, Mr Puna hoped would influence and end the procedural challenge.

The argument that the Constitutional provisions should prevail over the Standing Order in question was a failed argument because there was no conflict they actually being in concert. Where there is a conflict that is a valid argument but there was none.

The Speaker and Mr Puna joined ranks in an attempt to defeat the logic of the Opposition position but it became too difficult. An appeal to cooperate and allow the successful conclusion of the constitutional requirements and the day’s scheduled programme rightly made no impression upon the Opposition.

Noting the Crown Law presence in the gallery the Leader of the Opposition proposed that the sitting be suspended to confer with the Solicitor-General for some guidance and that is what happened.

As the meeting with Crown Law was a closed meeting there was no public broadcast of it but suffice it to say the report from it was that the Queen’s Representative had instructed that the House resolve itself into a formal gathering as per the 1983 Court of Appeal judgment, and its supplementary one, and therein resolve the question of who commanded the confidence of a majority of members and that is what happened but with one almighty, flagrant infringement of human rights.

Following that suspension and before the formal extra-parliamentary meeting the Leader of the Opposition sought from the Chair, and reluctantly received a confused ruling that the confidence motion did not comply with Standing Orders.

In respect of the QR convened meeting it should be noted that Court of Appeal has declared the procedure, when invoked – “It is the person who actually commands that confidence who shall be appointed and not someone who the Queen's Representative judges or is advised is likely to. That actual command would be evidenced by a vote of confidence in the candidate or some other unequivocal act of the legislature endorsing the candidate.”

This was subsequently modified to allow such proceedings to be conducted in a formal, non plenary gathering as occurred on Wednesday.

What it did not contemplate however, was that the person charged with chairing those proceedings should impose a gagging order denying Members the equality and protection of their fundamental rights to properly represent their constituents which prevented them from examining the qualification of the proposed candidate, advancing the names of alternate candidates and arguing their cause in an attempt to influence the final outcome.

This would have to be the most momentous violation of the many that occurred on Wednesday and raises some questions because that, like so many others we conveniently ignore go to the core of the democracy we allegedly practice here.

The Court of Appeal in no way, shape or form countenanced any suggestion of constraint upon Members right to fully engage in the confidence exercise in fact it envisaged the possibility of it potentially even being a lengthy process with these words – “But our recommendation is that he (the QR) should call for a formal meeting of all members of parliament at some appropriate place, possibly within the precincts of the House building, or elsewhere, presided over by such person as he decides, meeting as often as necessary, and following such procedures as he may from time to time direct to ascertain what member, if any, commands the confidence of the majority of the members of parliament.”

As the Editor has limited me to 1200 words, I cannot devote any further exposition on why the former Clerk, Tangata Vainerere’s opinion (CIs News 02.10.20) is wrong on so many counts, and indeed contradicts itself, but suffice it to say he was wrong.

John M Scott was the Clerk of Parliament from 1962 to 1974.