Queen’s Memorial holiday in the Cook Islands is not prescribed under the Public Holidays Act with Government “hoping that employers will act in good faith”.

Government finally clarified the legalities around Friday September 30 on Thursday.

Cook Islands News has struggled to get a clear and precise answer over the legal framework surrounding September 30 being deemed a public holiday as a mark of respect to the passing of Queen Elizabeth II.

The newspaper has contacted numerous government departments including the Ministry of Internal Affairs, the Office of the Prime Minister, Crown Law, Secretary of Head of State and Parliament.

While the King’s Representative, Sir Tom Marsters, in a proclamation has declared Friday a public holiday – New Zealand has passed a Bill establishing Queen Elizabeth II Memorial Day.

On Thursday, in a written statement a Government spokeswoman said, although the Public Holidays Act 1999 creates a list of public holidays, it does not provide any mechanism for adding to the list.

“This means that the Memorial holiday is not a normal public holiday because it is not prescribed in the Public Holidays Act.    

“The government is hoping that employers will act in good faith especially as this holiday is to mark the passing of our country’s Sovereign who throughout her life, including her seventy-year reign, acted tirelessly in serving the people of the Commonwealth and Realm Countries, including the Cook Islands.”

On September 14, the office of Prime Minister announced government’s intention to declare Friday,  September 30 as a one-off public holiday.

Government “was mindful of the limits of the Public Holidays Act and the fact that Parliament was not sitting to effect changes to the law”, the spokeswoman said.  

“In light of these limitations and mindful of the extraordinary circumstances the country was facing on the occasion of the death of the sovereign, a second legal opinion was sought by the Crown Law office from a renowned constitutional lawyer.

“The advice tendered was that the King’s Representative was able to invoke executive powers vested in him under the Constitution, to declare a public holiday. 

“He did so, following the advice of the Cabinet.

“On that basis, the King’s Representative proceeded as he did.”

Cook Islands News understands public holidays have to be legislated, and did reach out to Cook Islands Solicitor General Graham Leung for confirmation.

The newspaper did not receive a response.

On Wednesday, Tangata Vainerere, Clerk of Parliament, said Crown Law is responsible for any legislation.  

Over at the Prime Minister’s office, chief of staff Ben Ponia said he had read the Wednesday edition of Cook Islands News which had helped him understand the matter after earlier suspecting the newspaper was “jumping the gun”.

On Tuesday, Ponia said he had just been advised that the Gazette of the King’s Representative proclamation was posted on the Parliament Service Facebook page that morning.     

“I agree that it is Office of the Prime Minister’s responsibility to clarify this issue for the public but perhaps had we been approached earlier, we could have prepared a more helpful response for CINews readers,” he said on Wednesday.  

“I am aware that there has been some debate of this issue and it is not unusual in matters of constitutional or statutory interpretation for lay persons or lawyers to have different perspectives.

“What has been used in this situation, but which under the circumstances was deemed necessary, is an unprecedented use of a Constitutional power that has been rarely invoked.”   

Cook Islands News has approached the Ministry of Internal Affairs for comments. The ministry enforces the Employment Relations Act