By Rashneel Kumar, Cook Islands News
The proposed amendment sought to have the Cook Islands recognised as a Christian nation and to prohibit the introduction of non-Christian religions. Photo: RNZ Pacific / Eleisha Foon
The proposed constitutional amendment to declare the Cook Islands a Christian nation has been rejected by a parliamentary committee, which deemed it discriminatory and a violation of fundamental human rights, and further recommended the repeal of the Religious Organisations Restrictions Act.
Foreign Minister Tingika Elikana, chair of the Special Select Committee on Religious Organisations - established last year to address the ongoing debate on religious organisations - presented its report to Parliament yesterday.
The proposed amendment sought to have the Cook Islands recognised as a Christian nation and to prohibit the introduction of non-Christian religions.
According to the report, the Committee, after considering the arguments on both sides and the current legal framework, believes that the proposed amendment to recognise the Cook Islands as a Christian nation infringes upon fundamental human rights, including freedom of religion and speech, set out in Article 64 of the Constitution. Furthermore, it could lead to discrimination against non-Christian faiths, the report stated.
Foreign Minister Tingika Elikana and chair of the Special Select Committee on Religious Organisations. (file image) Photo: Johnny Blades / VNP
The Committee believes that the Preamble of the Constitution sufficiently captures, among other important matters, the significance of Christian principles in the Cook Islands.
The Preamble to the Constitution reads: "In the Holy Name of God, The Almighty, The Everloving, And The Everlasting. We, the people of the Cook Islands, recognising the heritage of Christian principles, Cook Islands Custom, and the rule of law, remember to keep holy the Sabbath Day, being the that day of the week which, according to a person's belief and conscience, is the Sabbath of the Lord."
In its report, the Committee agreed with the Cook Islands Law Society that the rule of law requires that laws are applied fairly, equally and without discrimination to all individuals within a jurisdiction.
"The Committee is compelled to adopt measures that uphold inclusivity, equality, and fundamental freedoms, ensuring alignment with both domestic and international standards," the report said.
"The Committee therefore rejects the proposed amendments to the Constitution: i. It infringes Article 64 of the Constitution; ii. The Preamble of the Constitution sufficiently captures the importance of Christian principles in the Cook Islands."
The Committee also concluded that the Religious Organisations Restrictions Act (RORA), which restricts the establishment of religious organisations in the Cook Islands, is "unconstitutional and should be repealed".
The Committee agreed with the submissions of the Law Society, which is summarised below.
The RORA:
- i. Restricts the establishment of religious organisations or associations
- ii. Restricts the establishment of any church, hall, house, tent or other building for any public meeting or place of worship; and
- iii. Restricts the conduct of any meeting for religious purpose in any place to which the public has access or in public view.
The above restrictions do not apply to the Cook Islands Christian Church, the Roman Catholic Church, the Seventh-Day Adventist Church, the Church of Jesus Christ of Latter-Day Saints and any organisation or association approved by the Minister of Justice.
According to the Committee, the four Churches listed in the RORA are all of Christian denomination, adding "RORA effectively prohibits the practice of any non-Christian religion or faith in the Cook Islands".
The Committee stated prima facie, the RORA offends against fundamental human rights by:
- i. Restricting the establishment and activities of non-recognised religious organisations;
- ii. Conflicting with the Constitution's guarantee of religious freedom;
- iii. Limiting these rights by privileging one faith over others; and
- iv. Discriminating against minority religious groups or non-believers.
The Committee said the RORA contradicts Article 64 of the Constitution by effectively creating a legislative prohibition on all non-Christian faiths, and even Christian faiths other than the four named in the Act, and treats unequally persons of different faiths, discriminating against and marginalising people of non-Christian faith. It also offends against the freedom of thought, conscience and religion, freedom of speech and expression and the freedom of peaceful assembly and association.
"For the above reasons, the restrictions imposed by the RORA are overtly unconstitutional. The RORA's provisions explicitly discriminate against unapproved religions, violating principles of non-discrimination.
"Restricting religious practices must be proportional to legitimate public interests. The RORA's blanket restrictions exceed what is necessary to protect public safety or order."
The Committee also said Article 64(2) of the Constitution permits limitations to Constitutional rights in the interest of protecting the rights and freedoms of others or in the interests of public safety, order, or morals, the general welfare, or the security of the Cook Islands. Any such limitation must meet the proportionality test under Article 65(2).
"The Committee agrees that the RORA fails the proportionality test. As such, there are no grounds on which the RORA could be deemed consistent with the Constitution on the basis of morality. As such, the RORA is unconstitutional and should be repealed."
According to the Committee, the Religious Advisory Council (RAC), which not only made written submissions to the Committee but also appeared before the Committee, has been "mistakenly" accepted as having an advisory role in several matters, such as church, immigration, seabed mining, etc.
"However, the problem is that RAC is not a legally incorporated body and therefore, has no formal or legal status."
The Committee recommends that the Minister responsible for the RORA take the necessary steps to:
- (i) repeal RORA;
- (ii) replace it with a new Act;
- (iii) establish the RAC as a statutory body with advisory function to the Minister responsible.
Members of the Special Select Committee also included MP Rakahanga and Opposition Leader Tina Pupuke-Browne, MP Matavera Vaitoti Tupa, MP Ruaau Timi Tunui Varu, Deputy Prime Minister and Ruatonga-Avatiu-Palmerston-Panama-Atupa MP Albert Nicholas, MP Amuri-Ureia Toanui Isamaela, and MP Arutanga-Reureu-Nikaupara Tereapii Maki-Kavana.
-This article was first published by Cook Islands News.
