Na Keokani Kipona Kaʻilikea, Loea Lula Hoʻomalu
The presumption of state continuity is like the presumption of innocence. A person is presumed innocent unless and until there is enough evidence to the contrary, beyond a reasonable doubt. Likewise, the sovereignty and independence of a state is presumed to continue unless there is contrary evidence beyond a reasonable doubt. The Hawaiian Kingdom achieved international recognition as a sovereign and independent state in 1843.
A person does not carry the burden to prove his or her innocence. Rather, the burden is on the accuser to provide enough evidence to reject that presumption. What evidence is there that the continuity of the Hawaiian Kingdom has been terminated?
Did the joint resolution of 1898 terminate the Hawaiian Kingdom? Can a congressional resolution unilaterally terminate another country? If the U.S. Congress adopted a joint resolution to unilaterally annex France tomorrow, would that terminate the continuity of France as a sovereign and independent state? Or would it set the stage for a belligerent occupation?
The Hawaiian Kingdom government was seized rather than terminated. Consequently, the governmental infrastructure of the State of Hawaiʻi is actually that of the Hawaiian Kingdom. However, the occupying power is not allowing the Hawaiian Kingdom government to reestablish itself via the laws of occupation. This has gone on now for 126 years and counting. So, is it any surprise that skeptics might perceive a lack of a Hawaiian government in waiting? Is it fair to blame the Lāhui for this?
Any perceived lack of a Hawaiian government in waiting does not absolve the occupying power of its failure to produce a bilateral treaty of cession to substantiate its alleged (illegal) annexation of the Hawaiian Kingdom territory.
What we are seeing on Mauna Kea is a nucleus of the Hawaiian national body reconstituting itself organically. It is providing a catalyst for revitalization of the Hawaiian national language and heritage. In other words, de-occupation is unfolding from the inside out—as we all know that it won't happen from the outside-in. Eventually, that will grow into de-occupation of the entire country. Of course, that doesn't happen overnight, especially when confronted with the longest belligerent occupation in modern history. In the meantime, there is going to be cognitive dissonance to be resolved through civil discourse—and civil "disobedience" when necessary.
In my opinion, the genie is out of the bottle and de-occupation of Hawaiʻi is only a matter of time. How long that will take is anyone's guess. It took 89 years for the British empire to leave India, which is on the same order of magnitude as 126 years (at the time of this writing) of occupation in Hawaiʻi. The reason I think it is only a matter of time is because the evidence that Hawaiʻi is occupied without a treaty of cession is too strong to be overcome. The question is, how much more time can the occupying power continue to buy for itself, especially now that the Lāhui has been awoken by the TMT initiative?
The Hawaiian Kingdom is a neutral nation-state that was unlawfully invaded by a military force of the United States on January 16, 1893. This established an unlawful protectorate for a handful of insurgents to implement a regime change one day later, on January 17, 1893. This unlawful seizure of the Hawaiian Kingdom government by the installed puppet regime did not terminate the Hawaiian Kingdom as a nation-state and a subject of international law.
To this day, there is no bilateral treaty of cession that gives the United States and its agent, the armed-force, self-declared "State of Hawaiʻi," jurisdiction over the territory of the Hawaiian Kingdom. The joint resolution of 1898 is a domestic statute and unilateral declaration, which, under customary international law, has no force and effect outside of the continental borders of the U.S., across 2,467 miles of ocean, and in the foreign country called the Hawaiian Kingdom. The joint resolution is an agreement between both chambers of the legislature in one country, not an agreement between the legislative and executive branches of the two countries involved: Hawaiian Kingdom and United States. Consequently, the Hawaiian Kingdom remains under a belligerent occupation prolonged illegally since January 17, 1893.
Therefore, until this military occupation is brought to an end, there should be a moratorium on all construction projects on Hawaiian Kingdom lands. The proposal to build a multinational Thirty Meter Telescope (TMT) on Mauna Kea is no exception. A permit for such construction could only be approved by the Hawaiian Kingdom government following U.S. de-occupation of the Hawaiian Kingdom.
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By Keokani Kipona Marciel, Professional Registered Parliamentarian (PRP)
Democratic Organizational Procedure in the 19th Century Hawaiian Kingdom
From the unification of the Hawaiian Islands at the turn of the 19th century until the illegal overthrow near the end of the 19th century, governance of the Hawaiian Kingdom was modeled largely after Great Britain. In 1840, the Hawaiian Kingdom became a constitutional monarchy with separation of powers into three branches of government, establishing itself as a conventional nation-state. In 1854, each of the two houses of the Hawaiian Kingdom legislature formally adopted procedural manuals to govern their proceedings. As in other democracies, legislative procedure formed the basis for the common parliamentary law of the Country. In other words, the generally accepted rules of order for meetings of voluntary organizations. These general principles of meeting procedures provide for democratic governance in ordinary societies.
The historical record clearly shows that democratic organizational procedure was widely embraced by Hawaiian patriotic societies and political parties of the 19th century. For example, the men’s and women’s Hawaiian Patriotic League each adopted provisions in their founding constitutions prescribing parliamentary procedure for both volunteer associations.
Democratic Organizational Procedure in 21st Century Ko Hawaiʻi Pae ʻĀina
In contrast to the Hawaiian Kingdom era, an aversion to parliamentary procedure has developed within the Hawaiian national body of the 21st century. Yet, the historical record speaks for itself: annexation was prevented by a mass petition organized by a joint effort of the three largest Hawaiian patriotic societies at the time. These three societies followed the common practices of formal procedure every step of the way. The magnitude of this historical feat remains unsurpassed.
A 21st Century Case Study
In 2015, an effort began to restore one of the major Hawaiian patriotic societies of the Hawaiian Kingdom era. Under the supervision of a credentialed parliamentarian, organizational meetings were held, bylaws were adopted, members were admitted, dues were collected, officers were elected, committees were appointed, regular meetings were established, branch charters were issued, and two annual delegate conventions were held. Also adopted were a code of ethics, strategic plan, standing rules (procedural and administrative), and numerous resolutions for diplomatic action. In effect, it was an experiment to see how well the Lāhui of today can tolerate the organizational procedure of its 19th century ancestors. Ultimately, the socialized aversion to formal procedure prevailed, clearing the way for authoritarianism and the railroading of decisions.
In 2019, the board of directors of this society, in violation of parliamentary law, revolted against the rules and orders adopted by the association. The current bylaws of the association provide for their amendment only by the delegate assembly of the annual convention, following written notice to the entire association at least 60 days in advance. This was willfully disregarded by some of the board members, who covertly conspired to illegally amend the bylaws.
Violation of the Rights of Absent Members
A special meeting was abruptly called without giving notice of the proposed bylaw amendment. This violated the rights of absent members who have a right to know the purpose of a special meeting in advance. Previous notice allows all members to determine if the subject of the special meeting is important enough to make arrangements in their individual schedules to attend.
Not only did the illegal bylaw amendment violate the bylaws, as well as the rights of absent board members, it also violated the rights of the delegates of the annual conventions who adopted the bylaws. Between conventions, delegates are members absent during board meetings, so their rights as absent members were violated.
The Action is Null and Void Under Common Law
When a motion was made to adopt the proposed bylaw amendment during the board meeting, the correct response by the chair would have been to rule the motion out of order because of the aforementioned conflict with the bylaws. Instead, the presiding officer stated the motion, which was to revise the purpose in the bylaws, replacing it with one privately drafted by the conspirators. After discussion, the presiding officer took a roll call vote and the bylaw amendment was adopted by those present. However, since the action is in conflict with the bylaws, it is null and void under parliamentary law, even if adopted unanimously by the assembly of board members. Parliamentary law (democratic meeting procedures established over time by organizations in general) is a branch of common law.
Violation of the Right of the Majority to Rule
Additionally, the bylaws are a codification of the most important rules of the association, adopted by a majority—and amended by a super-majority (two-thirds)—of the registered delegates present and voting at successive annual conventions. Therefore, to violate the bylaws is to violate the rights of the majority of delegates that adopted the bylaws, including the super-majority that amended the bylaws, at the annual conventions. In particular, the board illegally revised the purpose in the bylaws, which had already been amended by the delegate assembly at the 2017 and 2019 conventions. This violated the right of those majorities to rule, to have their decision stand as an official act of the association, which is binding upon the membership. The right of the majority to rule is a fundamental principle of parliamentary law, i.e., democratic organizational procedure.
Violation of the Rights of Individual Members
Furthermore, the illegal revision of the purpose in the bylaws, by the board of directors between annual conventions, violated the rights of the individual members who had given written notice, of proposed amendments to the purpose, to be considered at the upcoming annual convention. It violated their right to make motions. Specifically, to have their proposed bylaw amendments considered before those subsequently introduced by the board. In other words, the board cut to the front of the line, and those who had already been waiting in line were thrown under the bus.
Board Decisions Cannot Conflict with Delegate Decisions
Moreover, it is a fundamental principle of parliamentary law that the board cannot adopt decisions in conflict with decisions adopted by the regular convention of delegates. In this case, the board cannot adopt a revision of the purpose, in the bylaws, that was previously adopted and amended by convention delegates, because the bylaws do not delegate this power to the board. The ultimate authority of a volunteer organization resides in the membership, not in the board of directors elected by the membership. For an association of organizations, the voting membership consists of the registered delegates at successive conventions, who are elected by the entire membership consisting of the members of the chartered organizations collectively.
Can the Illegal Board Action be Ratified?
ʻAʻole. The only actions that the board can legally take are those delegated to it by the membership through the bylaws. In this case, the bylaws do not delegate any power to the board to amend the association bylaws between annual conventions. Consequently, any amendment of the bylaws by the board between annual conventions is null and void under parliamentary law because it conflicts with the previous adoption and amendment of the bylaws by the superior body, which is the delegate assembly.
Furthermore, bylaws cannot be suspended under parliamentary law unless a clause provides for its own suspension, which is not the case here. Nor does the clause in question constitute a rule or order (which could be suspended if permitted by the adopted parliamentary authority, or by an adopted rule superseding it).
Moreover, an action taken by the board cannot be ratified by the membership if its governing documents do not authorize the delegation of such action to the board.
The only way for the illegal bylaw amendment to be made legal is to start over and follow the procedure prescribed in the bylaws. First, to provide previous written notice of the proposed bylaws amendments to the entire association at least 30 days before the next annual convention. Second, for the amendment to be adopted by two-thirds of the registered delegates assembled at the business meeting of the convention (with a quorum present).
If it is desired for the board to have the delegated power to amend the bylaws between annual conventions of the branch delegates, then this would require an amendment to the bylaws at an annual convention. There have so far been two annual conventions of the association, at which this could have been proposed but never was. Alternatively, the bylaws could be amended to allow special conventions to be called for emergency purposes between the regular conventions.
As an ongoing conflict with the bylaws, it is never too late for a point of order to be raised against the illegal bylaw amendment during a subsequent board meeting or annual convention. A ruling on the point of order by the presiding officer can be appealed to the assembly for a decision, which, in turn, could not be appealed. However, if unsuccessful, the point of order could be renewed at subsequent meetings due to the illegal bylaw amendment being an ongoing conflict with the bylaws.
Dual Purpose of Meeting Procedures
Parliamentary practice is an application of democratic principles, hence, they are synonymous. Accordingly, the case study described in this article suggests that noncompliance with parliamentary law and procedure can result in less democratic meetings and decisions by an organization, including violation of the rights of members. Rules of order for meetings of an organization exist to expedite business (group decisions made in the name of the organization) while simultaneously protecting the rights of every part of the membership: majority, minority, individual members, absent members, and all of them as a whole. If people are unable to see these dual roles of meeting procedures, then they may not see the value of meeting procedures.
Blinded by a Socialized Aversion to Democratic Organizational Procedure
If people are already prejudiced against meeting procedures to begin with, then they are more likely to have a closed mind to meeting procedures, which, in turn, prevents them from seeing their dual function. Consequently, they may see meeting procedures as obstructive rather than conducive to effective meetings. Then, it can become a vicious cycle, with confirmation bias reinforcing the socialized perception at a group level. This inhibits their motivation to learn meeting procedures in the first place. The result is that democratic organizational procedure (parliamentary law) is never truly given a chance to demonstrate its effectiveness in expediting meetings and protecting member rights simultaneously.
Parliamentary law and procedure took centuries to develop. It stands to reason that this process would not have been necessary if democratic meetings were naturally occurring in human social systems.
In general, the contemporary Lāhui embraces the historical legacy of 19th century Hawaiian patriotic societies, while simultaneously avoiding the common law of meeting procedures that they followed (i.e., general parliamentary law). Therefore, the desire to restore one of these historic societies today is misaligned with the prejudice against parliamentary procedure that is part of the social scripting of the current generation of poʻe aloha ʻāina (Hawaiian patriots). This misalignment decreases the likelihood that an historic Hawaiian patriotic society can be restored to its former level of acceptance without adhering to a similar standard of procedure which got it there. In turn, this lack of formal procedure may contribute to the longevity of the prolonged belligerent occupation of Ko Hawaiʻi Pae ʻĀina. The alternative is to accept that the procedure followed by the 19th century Hawaiian patriotic societies is "part of the package" if the desire is to fully restore one of them today.
Transplanted Operating System
Parliamentary law and procedure was the operating system used by the 19th century Hawaiian patriotic societies and political parties. Today, social media is the prevailing operating system used by the Lāhui. Therefore, it remains to be seen whether an historic Hawaiian patriotic society of the 19th century can be restored to its former presence by relying primarily on social media in lieu of meeting procedures, i.e., democratic organizational procedure. Social media has existed for two decades. Parliamentary procedure began developing more than seven centuries ago and is rooted in antiquity.
Since written exchanges through electronic mail and social media do not allow for simultaneous communication between everyone participating in a discussion, such asynchronous communication does not qualify as a deliberative assembly. Therefore, without a deliberative character, such group exchange cannot arrive at decisions democratically, nor as efficiently.
While modern communication technology facilitates the exchange of information, it can only host a meeting of the minds when it provides for face-to-face communication. In other words, a deliberative character can be achieved through live video-conferencing, but not by asynchronous dialogue conducted through e-mail, text messaging, and social media.
Is there a Plan B?
Naturally, the goal of restoring an historic Hawaiian patriotic society is to formalize a significant portion of the Lāhui into an organized group (i.e., a grassroots decision-making body) through democratic procedure. However, as the case study in this article demonstrates, it only takes a few misaligned or unethical perpetrators to undermine the effort. This leads to the question of whether there is an alternative, or Plan B, if the formal organizational approach hits a wall?
In my opinion, I now believe that the Hawaiʻi de-occupation movement can and should succeed with or without the formation of deliberative assemblies in the Lāhui that follow best practices for democratic organizational procedure. I see two alternatives for achieving this objective:
Returning to the topic of reviving Hawaiian patriotic societies, various logical fallacies are employed to discourage or oppose the use of parliamentary procedure in deliberative assemblies within the Lāhui today.
Manuals of Meeting Procedures Recommended for Lāhui Hawaiʻi
KA PAIO HANOHANO