Lawyers are citizens and they have duties to uphold the rule of law and, by implication, speak out. As do lawyers here who are members of the Cook Islands Law Society. By John M Scott.
By way of introduction let me quote some laudable objectives of a particular entity and then put them into context:
-to suppress illegal, dishonourable, or improper practices -to consider and suggest amendments to the law -protect the interests of… the public in relation to legal matters -to do all things that appear….to be necessary or beneficial…..to the Cook Islands generally.
Would it not be wonderful to know that we had here in the Cook Islands such an entity which subscribed to these high ideals and would be prepared and motivated purely from a desire to protect the sanctity of our Constitution and the type of society we aspire to, to pursue these objectives and seek no other reward than the satisfaction of knowing they have risen to the challenge and that society would be grateful to them.
Who you might justifiably ask in the Cook Islands is going to front up and expose themselves to the dangers which are unfortunately the proven collateral consequences of any justified endeavour to challenge a government which considers itself above the law?
When no other individuals, knowing the power of the state to wreck their lives, are prepared to take that risk, even if they could, nor incur the costs, who do the citizens turn to for redress when the long train of abuses and usurpations reaches such a level, and the Queen's Representative, the supposed guardian of the Constitution fails to deliver that protection?
A relator action could then be indicated as one way forward where the Attorney-General adopts the action because as some text books tell us (Wade & Forsyth) a private individual has little prospect of claiming standing and bringing the Crown to account while others (Joseph) tell us differently. And then there is that question of costs. Normally the Crown should be concerned to ensure that public bodies do not abuse their powers, or limits upon spending, but this is what we see happening increasingly here with those abuses of power extending right into the invasion of human rights.
In such circumstances it is appropriate that an Attorney-General lends the authority of his office to the proceedings and thus assume responsibility for costs but historically that has not always happened when it is the central government itself under attack and even more remote a possibility here in the Cook Islands when the Attorney-General himself would be the target of such proceedings.
If the Attorney-General, therefore predictably, declined to consent to a relator action and a private person if he could sue in his own name solely on the grounds that he is a member of an aggrieved public, but is not prepared to pay the cost in either an official vendetta, or monetary terms, where does one turn?
The answer is the Cook Islands Law Society for it is that Society which subscribes to those laudable aims I mentioned above and it is they, the members of that Society, who have, with the occasional exception, been significantly silent in the face of any number of provocations and just causes.
And if that Society should continue to equivocate and seek the safe, non-confrontational ground and standby and do nothing as we slip further and further away from the rule of law perhaps it should look to its NZ cousins and seek its conscience there to aid the renaissance of its failing principles.
There, several senior barristers of the Auckland District Law Society recently voiced, and published, their concerns at the legality of certain features of NZ's coronavirus lockdown. The issue was taken up by the NZ wide Law Society which, in the role of intervener, joined a Dr Andrew Borrowdale, a Wellington lawyer and former law draftsman in the Parliamentary Counsel Office who, on his own initiative, was challenging, before a rare sitting of three Judges in the Wellington High Court, the legal basis for parts of the lockdown.
The NZLS was allowed to "intervene" on the grounds of the general and wide public importance, and concern about the rule of law and administration of justice in response to the pandemic, principles to which its members subscribe by virtue of its charter.
And, as Warren Pyke, Auckland Barrister appropriately pointed out in his second LawNews searching article discussing how important it was that any interference in people's rights and freedoms has a firm legal footing. He went on to say-
Legitimacy resides in the confidence of the citizenry in the lawful processes of government-in particular, that government and official decision-making is firmly rooted in the rule of law.
He further went on to say that lawyers are also citizens and that they have duties to uphold the rule of law and, by implication, speak out.
As do lawyers here who are members of the Cook Islands Law Society.
Unlike NZ however, which fortunately has far fewer threats to the foundation of its democracy but are quick to race to its defence when they do occur, ours watch from the sideline, silent and impotent allowing one abuse after another invade a society which is still struggling to find a maturity which will recognise the danger signals - and continue to remain paralysed and mute as prominent politicians vilify, scorn and exact retribution from those few audacious enough to speak out.
What has the Cook Islands Law Society, or any of its members, ever said about:
(a) the failure of government to finalise audit reports of the Crown Accounts in a timely manner and present these to Parliament annually they being allegedly six years in arrears (breach of Article 71 (2) of the Constitution on each count)
(b) the recent refusal by the Ministry of Finance to allow the Audit Office access to certain information thus compromising the reliability of its Reports when, and if, they ultimately do reach Parliament
(c) the failure of government year after year to properly and transparently account for its expenditure pursuant to Article 70(3)(b); why this provision was even amended in 1997; how parts of it are intended to be interpreted and administered and whether then it is even consistent with the underpinning principle and constitutional intent.
(d) whether additional aid and other loans and grants received since the passing of the 2020-21 Appropriation Act have been correctly paid into the Cook Islands Government Account, or other approved public fund or account as required by Article 69 of the Constitution and whether the subsequent application of those funds, and other financial assistance responses comply with Article 70 and section 54(2) of the MFEM Act.
(e) the degree to which (if any) and the effects (if any) that sections 31,35 and 36 of the Covid-19 (Economic Response) Act 2020 have on sections 58,59,60 and 68 of the MFEM Act and whether there are inherently issues extant there of unconstitutionality and whether this Act has been properly enacted and is valid law and, in addition, what consequences flow from the failure of the Minister of Finance to comply with section 29 of the Covid19 Act which required that he report to Parliament no later than 31 October 2020 on certain activities pursuant to that enactment.
(f) the frequency with which, and alacrity with which, the Speaker of Parliament has allowed the Government majority to deny the people's representatives the full opportunity provided by the rules of procedure to properly scrutinise the annual Appropriation. To this one should add the repeated failure of Government to comply with the requirements and the provisions of the law which would otherwise ensure members were fully supplied and equipped with the necessary supporting material to engage in an informed debate. Government regularly trespassing upon Article 64(1)(b) by continuing the ridiculous situation where it expects the annual appropriation for the following financial year to be passed before the previous year has even ended thus denying parliamentarians the details of how and where the public revenues have been spent in the twelve months still to expire.
(g) the abuse by the parliamentary majority, improperly supported by the Speaker, in the suspension of Standing Orders to deny members speaking rights or time to examine legislation
(h) the need for political neutrality on the part of the Queen's Representative and questionable displays of partisanship in recent times contrary to the demands of that high office namely interference in parliamentary affairs in 2016 and again this year by implication. The question who declared that Members' of Parliament crucial right to speak, question, debate and propose alternate candidates for the position of Prime Minister of this country was prohibited at the meeting convened for that very purpose by the Queen's Representative. That question has twice been put to the QR by the media and through the media by myself and continues to go unanswered. Such a denial of a competing choice must be unheard of in the democratic world but the troubling conclusion that the QR's silence is an admission of serious vice regal impropriety is something that should not go unreported.
(i) that while the Queen's Representative may have been recommended for the position by his previous political colleagues that should be where the affiliation ended. The QR now serves Her Majesty and there could well be times when his duty to Her transcends any residual sense of fealty he harbours to his political alma mater and this is something that should concern all citizens because while most of the QR's official acts are on advice of a Minister there are times, many times in fact, that the Constitution refers to a discretion which is not an invitation to bend to the political will but to adhere to established constitutional principles. There can be others when it will be necessary to invoke reserve powers (see (j) below) and where political partisanship certainly has no place.
(j) that whether this apparent abrogation of vice-regal duty qualifies for the intercession of the reserve powers of Governor -General of NZ and the restoration from that high station of some integrity in the Office of the Cook Islands Queen's Representative by reference to the Palace
(k) investigations pending, or underway, into the activities of Ministers of the Crown and how they sit with the operation of Article 14(7)(b) of the Constitution which provides for the QR to suspend a Minister under investigation but only on the advice of the Prime Minister but how does that work when a Minister under investigation might happen to be the Prime Minister himself?
(l) the currently subdued but undoubtedly still simmering Government flagrant pursuit of United Nations membership with no regard for the wishes of the Cook Islands people and the dire consequences of same.
(m) the ganging up by the Government and Speaker to deny citizens the right to petition Parliament as evidence most recently in the undemocratic refusal to allow the Petition opposing the chemical treatment of Rarotonga's water supply to proceed to a Select Committee and the earlier blatantly perfunctory dismissal of the concerns of petitioners who supported the Te Mato Vai Petition .
(n) how the failure of the present administration's obedience to the requirements of the Constitution in the area of financial reporting and treatment of citizens' rights to petition breaches the Bill of Rights 1688 is so far as no or late dispensing power and right to petition are concerned and whether these constitute grounds for judicial review and subsequent punitive proceedings.
Your readers may well ask what has a 300+ year old piece of ancient English history got to do with us. The answer is-everything.
The Cook Islands is poised on the slippery slope of creeping authoritarianism where the Government is emboldened by the silence of people who should know better, and the consequential absence of challenges, to engage in activities similar in many respects to what was happening in 17th century England.
King James II abused his regal powers and took it upon himself to rule without recourse to Parliament, or adherence to the law, which is what we see happening increasingly here.
Parliament finally rebelled and invited William of Orange and his wife, Mary, daughter of Charles I, to accept the throne after the ousting of James but only after agreeing to certain conditions which were framed around preventing a recurrence of those abuses. Those protections were enshrined in that Bill of Rights of 1688 and they are part of Cook Islands law.
The Bill of Rights 1688 prohibits the dispensing and suspending of laws which this Administration is doing with arrogant regularity. It also protects the rights of the Monarch's subjects to petition Parliament the abuse of which we have also seen just recently.
So what! some may dismissively say. The 'so what' in this picture is where does it stop? So what if Government decided that we did not need general elections and it just continued in office unchallenged? So what if Parliament never met? So what if it made its occasional practice of denying proper scrutiny of legislation a regular feature of the law making process. So what if it further corrupted Parliament's control of the public revenues and spent them contrary to the requirements of the Constitution? So what if Ministers could engage in corrupt practices answerable to no-one but themselves?
This folks is the slippery slope I speak of. If these practices are not arrested before they get completely out of hand there is little hope of retaining any semblance of a democracy here.
The Cook Islands desperately needs to clean up its act yet year after year as the misdeeds and abuse compound and mount, and despite the repeated challenges from this writer for NZ to give some meaningful expression to the 'shared values' principles of the Kirk/Henry exchange of letters nothing ever happens.
We therefore need to look internally.
I take my hat off to those NZ Barristers who wrote, and acted, in defence of the rule of law and express the lone hope that here in the Cook Islands, where we are far more vulnerable, that maybe, just maybe, some might discover the moral courage to do the same.
Unfortunately there is nothing much in the way of functioning civil society organisations so the focus really rests on the Cook Islands Law Society as being the obvious and best equipped body to take up the challenge.
Its track record and involvement to date however have been so abysmal that one wonders whether upon examining its collective capability it could muster the resolve to finally look beyond its own selfish interest and actually engage in some of the public interest duties I have quoted above.
Failing that perhaps it could explore instructing any one of the Auckland Barristers who wrote so tellingly of their concerns that NZ was drifting away from the rule of law and, at the cost of contributing financially to that cause, continue to fence sit and escape the opprobrium and consequences of contesting the establishment which has been my experience.
John M Scott was the Clerk of Parliament from 1962 to 1974.