With no disrespect for our late Sovereign, nor the King’s Representative, Sir Tom (Marsters), I have to question the putative authority being employed to give an aura of legitimacy to the Crown’s unilateral proclamation that Friday 30 September 2022 is a Public Holiday but more particularly, from an employer’s perspective, the urgent need to be reliably informed in view of the announcement that s. 38 of the Employment Relations Act 2012 applies along with all the responsibilities and commitments that entails.
Public Holidays are governed by the Public
Holidays Act 1999. Reference to that Act will reveal that there is nothing
there to support such a proclamation. Had there been some special dispensation
provision identifying one off occasions when a public holiday were warranted
(such as the present one) and the proper enacting formula authorising the same
were invoked, its validity would not be questioned as it is now.
The point here is that we have this quaint
principle, regularly breached with impunity by the present administration,
called the rule of law, which, despite government’s best intentions, does not mean
that if the law does not suit the powers that be then it is ignored, and
government will have its way regardless.
This drift into authoritarianism, which I
have commented upon many times, acquires strength, and acceptance, and
encourages repetition, when it goes unchallenged which, regrettably, we are
seeing happening far too frequently.
To circumvent these obvious constraints
the nimble minds which orchestrated this present departure have latched onto a
quite novel, and I am guessing, unprecedented provision of the Constitution to
achieve their circumlocutory ends.
Cabinet has decided it wanted a public
holiday so it passes a decision to that effect. This it could do if its purpose
were to approve forwarding the appropriate amending legislation to Parliament.
Parliament is not sitting, nor can it until the petitions are disposed of in
first instance so the proper, lawful execution of the proposal would appear
thwarted but for the innovative minds that govern us.
Cabinet decisions can be reviewed by the
Executive Council and it would not be improper for such a decision to be
subject to such a procedure (this is where Articles 24 and 25 pop up) so what
it boils down to is, what was the Cabinet decision? Was it to declare a public
holiday (obviously yes) or to record its intention to amend the Public Holidays
Act 1999 and forward the appropriate amending Bill to Parliament (obviously no)?
At that point the KR can either concur in
the decision or require reconsideration by Cabinet but if the decision of
Cabinet were, as we have to conclude, the immediate declaration of a public
holiday neither Article 24 nor 25 could authorise that.
So, into this picture we have the KR presumably
taking legal advice (because he would not venture down this path without it)
that Article 12(2) would do the trick.
Article 12(2) reads: Subject to the
provisions of this Constitution, the executive authority of the Cook Islands
may be exercised on behalf of His Majesty by the King’s Representative either
directly or through officers subordinate to him.
In his Proclamation invoking this provision
the KR refers to “the general powers vested in me” which to this writer’s mind
is going too far. Firstly “general powers” connotes and assumes a licence and
spread beyond that which the Constitution contemplates and even if their
interpretation were deemed to extend to Reserve Powers, proclaiming a public
holiday would definitely not qualify.
“The general powers vested in me” claim is
also potentially inconsistent with the introductory words “Subject to the
provisions of this Constitution” which quite clearly mean that any such powers
are limited by the Constitution and any exercise of them inconsistent with any
of its provisions would be ultra vires.
Which I believe is the position with this
The power to make laws is vested in
Parliament (Article 39). Except to the extent Parliament has authorised the
Executive to enact subsidiary instruments neither Cabinet, nor the Executive
Council has primary law making powers. While limited authority to promulgate
Gospel Day for the various islands was provided by the Public Holidays
legislation that was the extent of its executive authority where that statute was
Public holidays legislation is the
province of the legislature and employers are entitled to the legal certainty
and protection inherent in their obedience to it. The rule of law again. Not
only that, Article 64(1)(b) guarantees it and any action which conflicts with
that tenet and stakes its dependency upon Article 12(2) has to be unconstitutional.
To conclude this opinion then, it is my
contention that the KR’s proclamation is without legal foundation, that Friday
30 September is not a public holiday and while it is right and proper that we
honour our late Sovereign in an appropriate way this is not the way to do it.