How The Hawaii Constitution Protects Mauna Kea

Gov. David Ige and President David Lassner have failed in their duty to uphold state law.

By Kekailoa Perry, August 24, 2019

Screen Shot 2019 09 11 At 10.39.04 Pm

Recent media reports comparing Mauna Kea protectors to law breakers are inaccurate. A closer look at the issues reveal that state officials and Thirty Meter Telescope supporters may be conducting wrongful acts.

Like hustlers running a shell and pea con game, Gov. David Ige, University of Hawaii President David Lassner and the TMT are adopting the “rule of law” to influence favorable public perception and suppress the growing support for Mauna Kea Protectors.

The state of Hawaii Constitution is the law of the land. The state is duty-bound to fairly administer the laws. There are at least three important constitutional provisions affecting the protection of Mauna Kea — Article I §4, Article XI, and Article XII §7.

Article I §4 resembles the US Constitution’s First Amendment. The article states that no law shall prohibit the “free exercise of religion” or abridge the “freedom of speech” and “peaceful assembly.” The freedom to worship God(s), express oneself, and peacefully gather are fundamental rights that must be fiercely guarded.

Yet, this week, Gov. Ige’s administration installed “no parking” signs along the saddle road enabling police to target protectors with citations. These same tactics were illegally used during the Jim Crow era and were considered anti-civil rights measures. UH Law Professor Ken Lawson describes the governor’s tactics as “bogus traffic laws” that will “trample on the First Amendment rights of Protectors and others to peacefully assemble and exercise their rights to free speech.”

Similarly, President Lassner created nefarious “waivers” and “surveys” that single out student and faculty supporters of Mauna Kea. The documents create an intimidating and hostile learning environment reminiscent of McCarthy-style black lists of the 1950s and ’60s. So much for the First Amendment.

Article XI §1-11 require the state to manage “All public natural resources…in trust by the State for the benefit of the people.” This provision is known as the “Public Trust Doctrine.”

In 2000 the Hawaii Supreme court reaffirmed the state’s Public Trust Doctrine. The court ruled, “the State and its political subdivisions shall conserve and protect all natural resources.” The court further ruled that “All public natural resources are held in trust by the State for the benefit of the people.”

Mauna Kea is precisely the Public Trust Lands that the constitution protects. Yet, the procedural history of the TMT is reportedly riddled with rule violations, a lack of adequate public consultation and procedural mishaps that show the state’s serious breach of the Public Trust Doctrine.

In Article XII §7 the state must “reaffirm and protect all [Hawaiian] rights, customarily and traditionally exercised for subsistence, cultural and religious purposes… subject to the right of the State to regulate such rights.”

In 1995 and 2000, the Hawaii Supreme Court “reaffirmed the State’s obligation to protect the reasonable exercise of customary and traditionally exercised rights of Hawaiians.” The court also held that Article XII §7 “places an affirmative duty on the State and its agencies to preserve and protect traditional and customary native Hawaiian rights, and confers upon the state and its agencies the power to protect these rights and to prevent any interference with the exercise of these rights.”

The Court’s 2018 Mauna Kea decision upheld Article XII §7 even when its conclusions wrongly favored duplicitous circumstances that supported TMT special interests. The Court ruled that “in order for the rights of native Hawaiians to be meaningfully preserved and protected, they must be enforceable.”

Yet, Governor Ige and President Lassner are using police to unlawfully obstruct Hawaiian constitutional access rights on Mauna Kea. In contrast, telescope employees are given unfettered access to the mauna but have no clear constitutional authority to be there. Essentially, the state and UH are granting special access privileges to the telescopes while skirting their duty to support Hawaiian constitutional rights.

Likewise, the university’s proposed Mauna Kea Management rules target protectors by curtailing access rights and penalizing Hawaiian practices with severe fines. Instead of protecting Hawaiian constitutional rights, President Lassner and the Board of Regents seem eager to look the other way.

Screen Shot 2019 09 11 At 10.39.18 Pm

Articles I, XI and XII represent the supreme laws of the land. The “rule of law” principle obligates the State to vigorously defend these constitutional rights. Somehow, Governor Ige and President Lassner have lost sight of this important responsibility when managing Mauna Kea.

The state and TMT assert that they are champions of the law. They want us to see the protectors’ peaceful resistance as unlawful. But, the state and TMT “rule of law” rationale discounts over 200 years of non-violent civil protest including the Boston Tea Party, Anti-Slavery, Women’s Suffrage, Japanese-American internment, the Civil Rights movement, the American Indian movement, the Me Too movement, and many other important civil disobedience events that make up the foundation of the “rule of law” in the U.S.

TMT’s current path seems determined to: infringe on Hawaiian rights and the Public Trust Doctrine, contravene legal rights of assembly and free speech, and flout the threat of police violence under the law. Clearly, the state underestimated the people’s love for Mauna kea and that miscalculation caused the road block. Thus, TMT supporters who insist on being victims must acknowledge that their perceived mistreatment is of their own making.

Governor Ige and President Lassner have an obligation to safeguard the constitutional rights of all citizens.

Screen Shot 2019 09 11 At 10.39.34 Pm

Unfortunately, the TMT development may be compromising the state’s ability to fulfill its trust responsibilities on Mauna Kea. When the state fails to protect the rights of its people, “we the people” must defend those rights by any peaceful means necessary.

The rule of law should not be a shell game of deception and manipulation for the politically powerful. The rule of law is an imperfect set of principles that should be respected and vigorously challenged.

Everyone has a duty to be lawful and protect the rights of every citizen, including Hawaiians. When we are lawful, we can better appreciate the protectors and the value of kapu aloha. We will see you on the Mauna.

Screen Shot 2019 09 11 At 10.39.54 Pm