This is the third in a series of opinion pieces covering the Cook Islands development journey. Written by Dr Alex Frame LL.D (VUW)
Dr Alex Frame grew up in 1950s Tahiti where his father was a flying boat pilot in the days before landplanes, attending the old Arue School and Collège Paul Gauguin in Papeete. Later, he studied law at the University of Auckland and Victoria University in Wellington. He began teaching law at Victoria University in 1969 and then at the University of the West Indies in Barbados. On return to New Zealand in 1974 his teaching and research began to specialise in Constitutional Law and Legal Philosophy.
He first began advising the Cook Islands Government on constitutional matters in the early 1980s when Sir Tom Davis and later Sir Geoff Henry were Prime Ministers, and M.C. Mitchell was Solicitor-General.
Dr Frame diverted from academic work in 1988 to serve as the founding Director of the Treaty of Waitangi Policy Unit in the New Zealand Ministry of Justice and was appointed by Cabinet to lead negotiations for the Crown in several Treaty Claims. For this work he was awarded the New Zealand 1990 Commemoration Medal, ‘in recognition of services to New Zealand’. His book on the life and times of Sir John Salmond (1862-1924), the draftsman of the Cook Islands Act 1915, won the EH McCormick Prize at the 1995 Montana Book Awards.
In his retirement letter in 2022 to the Prime Minister and Attorney-General of the Cook Islands, the Hon. Mark Brown, Dr Frame wrote:
It remains only for me to thank you, Mr Attorney, and all your precursors since 1981, for the confidence you have shown in my professional judgment for a period of more than 40 years. It has been one of the most satisfying parts of my life in the law, and has kept my connection with the Pacific islands formed during my childhood in Tahiti.
From the 40 years up to 2022 during which I have had the honour of advising successive Cook Islands governments on constitutional matters when requested, four major changes and trends seem to be worth sketching for your readers at this time of reflection on the sixtieth birthday of the Constitution. The views expressed are those of the writer alone and may in no way be attributed to the Governments of the Cook Islands or of New Zealand.
- Acceptance of the true significance of Article 39 of the Constitution of the Cook Islands conferring full and exclusive jurisdiction on the Parliament of the Cook Islands to make laws for the ‘peace, order, and good government’ of the Cook Islands. In particular, it paved the way to the development of ‘Conventions’ under which the Cook Islands steadily expanded its international capacity with the agreement and encouragement of successive New Zealand governments, in a manner similar to that followed for the evolution of the ‘Dominions’ after World War I in the Commonwealth, including New Zealand. Conventions are the rules of the Constitution which, by definition, and in contrast to the written rules of the constitutional documents, the Courts of law do not directly enforce, although they may, where possible, take notice of them in interpreting the law. Needless to say, the existence of the Conventions presupposes agreement as to their nature between the ‘parent’ and the ‘associated’ state. With good will and mutual understanding, the working of these Conventions can be kept consistent with the expectations and concerns of both sides.
- The insertion by constitutional amendment in 1981 of the ‘fundamental freedoms’ found in Articles 64 and 65 of the Constitution, these freedoms being based on international human rights instruments such as the Universal Declaration of Human Rights of 1948 and the subsequent United Nations Treaties under which the Cook Islands periodically reports. While affirming the determination of the Courts to give full meaning to these fundamental freedoms, the Privy Council has recently recognised that the Courts need to accord a ‘margin of appreciation’ to Parliament’s freedom to balance competing social and economic claims affecting the fundamental freedoms.
- A growing recognition of the importance of Cook Islands customary law as a source of law. If I may use a Tahitian phrase, custom is parau tumu fenua – ‘words whose foundation is the land’. There are two aspects of this. First, there is an increasing understanding throughout the common law world that customary law is part of the common law, so that the common law of Aotearoa/New Zealand is partly made up of Maori customary law. Similarly, the common law of the Cook Islands is partly made up of Cook Islands customary law. Secondly, Parliament itself has amended the Constitution to give greater significance to customary law. Of course, both these mechanisms recognise that the Courts retain the duty of ensuring that the common law is consistent with the Constitution.
- A steadily increasing availability and accessibility of the law to the people of the Cook Islands. When I started advising in the Cook Islands, there was no clear list of the laws which applied after the commencement of self-government under the Constitution. Indeed, my first assignment on the initiative of then Solicitor-General Mike Mitchell was to compile such a list, resulting in the publication of the 10-volume green Reprint of Laws of 1994. We have seen, in 2024, the birth of a Reprint, available on-line, with the potential to greatly increase availability, in up-to-date form, of the laws throughout the Cook Islands.
With those few and brief comments, I offer my congratulations to His Excellency the King’s Representative, the Prime Minister and Government, and Parliament of the Cook Islands, to the Judges and Courts, and indeed to all the people of the Cook Islands, on 60 years of progress under the Constitution and the Rule of Law.