Dear Editor, Joe T Public’s (JoeTP) (bully-boy tactics letter 20 June) was the clever work of a sophist (a person who peddles a fallacious argument to support a false conclusion) and reads very much like it is Government’s position and coming from MFAI.

I understand then, if that is the case, why the writer had to hide behind a nom de plume, the use of which in our vindictive political environment I have advocated, although it denies readers the opportunity to assess the degree of credibility and/or motive of the source. It is a pity also that someone who is quite knowledgeable on the subject does not want to be identified.

I suggest all those readers out there who are interested in the actual true position do their own research. They will quicky discover that while the Joint Centenary Declaration (JCD) is regarded in some quarters as valid so long as it remains uncontested, there is no escaping the fact that it is an attempt to vary, that is, modify (and you will find that description is used in several references) the entrenched S. 5 of the Cook Islands Constitution Act 1964 and, as I explained in my last letter (19 June), any attempt to modify S.5, amongst others, requires both the requisite support, firstly in Parliament and then by referendum, none of which has happened despite the Chief Justice indicating the first was required, in the Friends of Fiji case, and by association, also the second.

One such reference, which I had underscored, is a statement that the JCD is not a constitutional amendment and does not have the legal force to modify S.5 and another, that while it emphasises consultation and cooperation between our two countries on foreign affairs and defence it does not diminish NZ’s responsibilities for the Cook Islands’ external affairs and defence and it appears to me that unless there is a lawyer out there who recognises the obligations inherent in that profession, which I have written about before, and files the appropriate proceedings, then the people of the Cook Islands are entitled to expect that Crown Law, on behalf of the Attorney-General, to fill that unconscionable vacuum and commence a realtor action to the same end because, as things currently stand, the chances of the Prime Minister initiating a referral to the High Court pursuant to S. 3 of the Judicature Act 1980-81 are highly unlikely. In doing so the Crown would, albeit belatedly, conform with the Chief Justice’s declaration in the Friends of Fiji case.

Which brings us right back to my argument, that if it is the wish of Cook Islands voters, who on behalf of the Cook Islands people, present and future, demonstrate, in a democratically conducted referendum, that they want to continue these delusions of grandeur of being treated as equals on the world stage, enjoying all the trappings of a  sovereign independent country, and accepting the responsibilities, then sure, go ahead and pursue independence, revive the CIs passport issue and UN membership because that is where this Administration of Mark Brown wants to take us, and, inadvertently, it would seem, or by design, one must wonder, NZ’s MFAT.

It is in their interests, the Cook Islands people, that S.5 has been entrenched. And if the people say yes to it being weakened we must accept it but be aware that we cannot expect NZ to sit by quietly while we, as the saying goes “have our cake and eat it too”, in other words go out into the world and possibly take positions, or be subject to influences, which are inimical to NZ’s interests and still expect to retain all the benefits and support that come with free association in which NZ citizenship is central. Which makes these developments all the more remarkable when MFAT, being the architect of the JCD, is virtually inviting a situation where it will be hoisted on its own petard, while the Cook Islands, in co-signing MFAT’s 2001 creation, is pre-empting independence.

Foreign Affairs Minister Elikana’s further interview on Matariki FM last week, in my view, added nothing to the debate other than confirm his government’s dependency on the fact that NZ supported our government’s international activities which the Prime Minister’s full page opinion piece in CIs News 28 June (Our voyage to Statehood, 60 years on) reasserted by painting this glorious picture of how active we have been on the world stage and, by implication, defacto becoming de jure.  

In my view, however, the most telling component of his discourse was his quotation of Dame Alison Quentin-Baxter. Therein she boldly declared that the ‘shadowy expectation’ as to the scope of the free association relationship empowered the NZ government to ‘deduce’ how the Cook Islands Constitution Act 1964, and accompanying Constitution, were to be interpreted!

This is an astonishing statement. Upon whose authority one has to ask? The provisions of the 1964 Constitution Act were well understood by the representatives of the people of the Cook Islands in 1963 in the Legislative Assembly (as it then was [and I was there!]) and by the Constitutional advisors (Aikman, Davidson, Wright) and it was that understanding that was written into S. 5 of the 1964 Act and it was on the basis of that understanding that the 1965 general election was conducted and internal self-government, supported.

Nowhere was there any provision that even remotely permitted either the NZ Government or the Cook Islands Government to unilaterally, or bilaterally, reinvent what the people had decided. Section 5 of the 1964 Act is clear. Any change is a decision reserved for the people as Article 41(2) tells us. However, to the extent there were any ‘shadowy’ areas which required attention and could be resolved without offending against the constraints of S.5 then the mechanism for doing so was contained in the consultation provisions of S.5 and each legislature would give legislative expression to what was agreed.

Joe TP refers to conventions but these are not justiciable, as he acknowledges, and no Court would uphold them if they conflicted with a written Constitution. But where he is wrong is comparing our present differences with NZ’s dependency on conventions in its earlier years until it gained full legal autonomy. The difference is, and it is huge difference, NZ was never constrained by a Constitution which was declared to be supreme. We are, and the sooner this is realised all the way back to NZ’s MFAT, which has a huge responsibility for getting us into this mess, the sooner some sort of sanity can hopefully be restored in our polity, and relationship with NZ.

Finally, conventions are observed when they can be without conflict. I have written before in support of the caretaker convention for example where the Executive is required to exercise self-constraint after the dissolution of Parliament and during that interregnum before a general election and not to embark upon new policies, new appointments and the like and, in respect of anything controversial, to obtain the support of the Opposition. It works well because the potential for conflict is contained. Conflicted, and there are consequences. Any suggestion, such as Joe TP implies, that conventions, which are so utterly contrary to the requirements of a written, supreme constitutional instrument, such as is being promoted with the JCD, can co-exist and survive the same test, is just wishful, regrettable, and proven divisive, thinking and, because of the intransigence and timidity confronting this issue, has all the hallmarks of going to the Privy Council if it cannot be resolved domestically.

John M Scott.