I do not go looking for these things, but
I had occasion to see the Gazette Notice from Government House dissolving
Parliament and it had me wondering who prepares, or better still checks,
material like this before publication.
There used to be an international mailing
list of recipients to whom a copy of each Gazette was sent. Whether that is
still the case or not I would not know but in view of all the mistakes in this
particular issue it would be better that we did not embarrass ourselves by
sending them this one.
Gazettes are of historical moment. Long
after we are all gone people from different walks of life, and for different
reasons, will consult them. They have to be accurate and the information they
contain reliable. Quite aside from the immediate purpose, that should be an
incentive enough to get things right.
So, what’s wrong with this one?
Firstly, the heading proudly announcing:
DISSOLUTION OF THE FORTY-NINE SESSION
OF THE PARLIAMENT OF THE COOK ISLANDS
Two mistakes. It is not a Session of
Parliament that is being dissolved. It is Parliament itself and if it were, it would
not be the forty-ninth session anyway (explained below*)
Further the Preamble claims that the dissolution
action that follows has this foundation in:
WHEREAS the Parliament of the Cook
Islands was adjourned sine die of its of its fourteenth meeting on Friday 27
May 2022, and given this is the year for a ‘General Election’, and upon the
advice tendered to me by the Prime Minister, to call for a fresh election …
Three further mistakes here. Heaven only
knows where ‘fourteenth’ came from, but it is nonsense (see explanation below*),
further, the dissolution is not premised on either the fact that this is
‘General Election’ year nor the advice of the Prime Minister but on the
constitutionally mandated flow of events at the expiration of the four-year
term as acknowledged, (and in correction of the aforementioned contradiction),
in the citation following, of Article 37(5).
But it does not end there. The next
paragraph in this embarrassing document while correctly referencing Article
37(5) as the authority for the dissolution wrongly then proceeds to usurp that
same Article as the authority for the appointment of 1 August as election day.
The authority for the appointment of
election day is where the Prime Minister’s advice comes into play however the
authority for that is Article 37(6), not 37 (5) so another mistake.
So altogether, six mistakes.
As with my suggestion (CIN letter 21 May
2022) questioning the lawfulness of the DPM’s reinstatement and proposing that
an authoritative opinion be sought as to its legality, it might be prudent to
seek one on this last point to establish whether, despite the clumsy approach
to this serious matter, the general election date has been lawfully appointed.
I expect it will be found that case law
will support the validity of the act even though the recital is wrong provided
there is authority for the act itself (as there is) however it would be better
to be safe than sorry just in case someone was of a mind to challenge the whole
*Explanation: The Cook Islands Parliament began its life in 1946 as a Legislative Council (CIs Amendment Act 1946) but this changed in 1958 with the creation of a Legislative Assembly. The numbering of Sessions began then, the first being that year, 1958. The same legislation (CIs Amendment Act 1957) required annual Sessions. The Legislative Assembly morphed into Parliament with the passing of Constitution Amendment (No.9) Act 1980-81 meanwhile the annual Session requirement continued (Constitution-Article 29(1)). There is therefore no way that in the year 2022, 65 years from 1958 that Parliament could have just adjourned its forty-ninth Session nor, when a Meeting is defined as a series of Sittings within a Session, could there have been anything like the claimed fourteen meetings. This problem has arisen by ignoring the provisions of Article 29(1), and Part VI of the old Standing Orders, and retained in the new ones, and allowing Sessions to drift on year after year, and in so doing, avoiding the discipline of an annual ceremonial opening of Parliament which required some structured thinking and planning by the Government of the day of its legislative programme for the year. These failures have, in this writer’s view, contributed, in a very tangible way to the very sloppy ad hoc standards of administration, and incompetence, that we see throughout the public sector today.
I expect to have more to say about the
consequences of this widespread official disregard for the requirements of the
law, which reaches the highest level in government, as we head into this
John M Scott
Clerk of Parliament from 1965 to 1973
Te Tuhi Kelly on 03/07/2022
It seems that those in authority are more interested in the law of letters, rather than the letter of the law.