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Cook Islands PM: Same-sex ban must comply with constitution
6:08 pm GMT+12, 12/11/2019, Cook Islands

Criminalising same-sex relationships may clash with the constitution, Cook Islands Prime Minister acknowledges.
Henry Puna has called for the public to remain calm about the Crimes Bill changes, reiterating that the final decision will be made by Parliament. A Parliamentary select committee has reinstated “indecent acts between two men” and sodomy as crimes – but the Prime Minister emphasised it would have to go through proper process.
“It then becomes subject to due process which can be quite stringent if it impacts on any provision of the Constitution, as it might. There is no guarantee that it will survive this process.”
The Constitution requires the law to protect all people from “discrimination by reason of race, national origin, colour, religion, opinion, belief, or sex.”
But it also goes on to say that individual rights may be constrained “in the interests of public safety, order or morals”.
The Constitution does not define “morals”.
Lawyer Heinz Matysik said if a client wished to challenge the criminal clause as breaching their constitutional rights, they would have a case. “The word ‘morals’ is very subjective.”
PM Puna said if people wished to have more time to discuss this important issue, then Parliament would no doubt take that into consideration.
“This is an issue that should not and must not be politicised for at the end of the day, a clear and definite mandate on this issue from the people of the Cook Islands is absolutely necessary,” the Prime Minister said.
“Government will be led and guided by the voice of the people, and no decision will be made on this important issue without that.”
Cook Islander Janette Olliver says the community sometimes creates fear for people who identify as LGBT+, as it can be very hard to come out about one’s sexuality.
She was just 13 years old when she came out. She told her friends first before approaching her siblings and cousins.
Eventually she managed to muster the courage to tell her parents who were a “bit shocked” at first, but eventually accepted her sexuality.
Olliver thought she would be kicked out of her home because it happened to other people who she knew.
Her father was a “papa’a” and her mother a Cook Islander, brought up with strong Christian values.
“My mother was taught it was wrong. It was difficult for my mum to understand like  many parents, but I never got kicked out.”
In the end, her mother’s love prevailed: “My mum who passed away was my biggest advocate,” she said.
“Those internal fears are created by the community and the society we grow up in. Most of our parents might be cool with it,” she said.
Meanwhile, a respected leader has made an impassioned plea: speaking as a mother, she asked MPs to have the heart to protect Cook Islanders’ equal rights.
Lady Tuaine Marsters spoke as patron of Te Tiara Association – and as the mother of a gay son.
In a submission on same-sex law reform, she emphasised the message of love and acceptance preached in the local churches.
Marsters’ husband is Queen’s Representative Sir Tom Marsters. She said the lesbian, gay, bi-sexual, transgender, queer, intersex (LGBTQI+) community should not be discriminated against, based on their sexuality and choices.
The patron of Te Tiare Association, who made her submission in Maori, asked the committee to have the heart to understand the rights of the LGBT+ community as citizens of the country.
The committee chaired by Tingika Elikana had earlier said it would reinstate provisions that criminalised same-sex relationships in the Crimes Act amendment bill. If accepted by Parliament, this would reinstate a penalty of up to five years’ imprisonment for “indecent acts” between two men, and a sentence of seven years’ prison for consensual sodomy.
But after a local and international outcry, the committee sat again to listen to more submissions.
The committee will now consider the new arguments from Te Tiare Association and its supporters, before deciding whether to reverse its original decision.
Te Tiare Association president Valentino Wichman asked the committee to make a rational decision based on the facts and evidence – not be swayed by biases and subjective thinking.
Wichman said criminalising same sex was unconstitutional and discriminatory against the LGBT+ community.
“Human rights are universal,” Wichman said. “Everyone is entitled to the same rights. There are no new rights for LGBT+ people being created: We are simply stating that we should enjoy the same rights as everyone else. We are asking for decriminalising and equality, not marriage.”
University of the South Pacific’s Cook Islands director Dr Debi Futter-Puati also made a submission, as an advisor to Te Tiare Association.
Her argument was based on her doctoral study. In her survey of 674 Cook Islands college students, she said 9.1 per cent identified as LGBT+ and 22.7 per cent “refused or were unsure about” which categories to put themselves into.
Dr Futter-Puati said their unwillingness to identify was likely to have been linked with concern about potential victimisation or discrimination that happens to some members of the LGBT+ community in the country.
Committee chairman Elikana said the majority of the submissions received by them were in support of retaining provisions that criminalises same sex.
He also said the submission time was over and they were in the deliberating stage, hoping to make their recommendation to Parliament by February next year.


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