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Hopes pinned on Constitution to sway committee

Saturday November 16, 2019 Written by Published in Local
Lady Tuaine Marsters, patron of Te Tiare Association, makes her submission to the Crimes Bill select committee at the Aotearoa Centre. 19111120 Lady Tuaine Marsters, patron of Te Tiare Association, makes her submission to the Crimes Bill select committee at the Aotearoa Centre. 19111120

There is an increasing weight of expert opinion warning that reinstating a criminal ban on same-sex relations would breach the human rights protections of the Cook Islands Constitution.

The Law Society and the Cook Islands Civil Society have both added their voices to representatives of Te Tiare Association led by Lady Tuaine Marsters – they are all highlighting the Constitution’s ban on discrimination on grounds of sex.

They argue imposing convictions and five-year prison sentences on gay men is a violation of human rights.

There are new and growing hopes the Parliamentary select committee will reverse this month’s decision to reinstate a criminal ban, after the committee agreed to hear further submissions this week.

Democratic Party and Opposition leader Tina Browne says the proposed legislation is “fraught with legal problems” and “hugely regressive for human rights here”.

She says it is a regression that has thrown the country under a negative international spotlight.  “Contradicting our very laws and violating the UN Human Rights declaration, we are party to by criminalising male and female homosexuality.”

Her words put pressure on the three Democrats members of the select committee that made the original decision: Selina Napa, William ‘Smiley’ Heather and Tetangi Matapo.

Cook Islands Tourism, too, issued a statement last week warning of a “detrimental” impact on the country’s reputations and tourism industry. Chief executive Halatoa Fua said he was proud that the Cook Islands were widely regarded as a friendly and safe Pacific tourism destination where all visitors are welcome.

Cook Islands Civil Society president Keu Matatora said government had a duty to uphold and defend human rights.

And the Cook Islands Law Society said the Constitution guaranteed fundamental human rights and freedoms; the right to equality without discrimination by reason of race, national origin, colour, religion, opinion, belief, or sex.

Criminalisation of same-sex relationships was inconsistent with these constitutionally enshrined human rights principles, the Council said.

Same-sex relationships were decriminalised in the United Kingdom in 1967, in Canada in 1969, in New Zealand in 1986, and in Australia in 1994. Many small Pacific Island countries had also decriminalised same-sex relationships including the Marshall Islands in 2005, Niue, Tokelau, and Vanuatu in 2007, Fiji in 2010, and Nauru in 2016.

The Law Society expressed concern at select committee rationalisations that the inclusion of the same-sex ban was justified because nobody was ever charged or prosecuted with such offences under the existing Crimes Act 1969.

“It is bad policy and poor law making to create a criminal offence with the intention that nobody will ever be charged with it,” the Law Society said.

The Law Society’s members encouraged Parliament to join the international community in removing discriminatory laws.