Soon, our elected leaders will be raising their right hands to swear an oath to uphold the U.S. Constitution, State Constitution and County Charter.
We should insist our elected leaders actually follow through with that commitment and pay particular attention to the words “may” and “shall.”
When writing legislation or legal documents, deciding whether to use the words “may” or “shall” is a major decision. This isn’t just a minor editing choice, but a decision with legal ramifications.
Our state Constitution Article III, Section 12 says, “Every meeting of a committee in either house or of a committee comprised of a member or members of both houses held for the purpose of making decision on matters referred to the committee shall be open to the public.”
This doesn’t say legislators may choose to meet for decision-making in private if it happens to be more convenient. And it doesn’t allow private meetings to discuss committee decisions because meeting in public would be awkward, cumbersome or too time consuming. It says clearly they shall only have these meetings in public.
Virtually everyone who is familiar with the current legislative process will agree that this provision of the Constitution is overlooked frequently and with impunity.
The various committee chair persons regularly meet behind closed doors, with other committee members, and with lobbyists representing stakeholders “for the purpose of making a decision.” The chair will then schedule a public committee meeting to announce the decision previously made in private. This process clearly violates the state Constitution.
The county charters establish the structure and organization of county governments. Unlike the federal and state constitutions, the various county charters utilize broad language requiring each to promote the general welfare of its residents.
The state Constitution, however, provides specific county mandates.
Article 11, Section 1 of the state Constitution states, “For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawai‘i’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.“
The county is a political subdivision of the state, and therefore also responsible for the conservation and protection of all of our natural resources. When confronted with environmental threats, the county may not disavow responsibility and just point to the state Department of Health or the state Department of Land and Natural Resources, etc.
Furthermore, Article IX, Section 6 of the state Constitution says, “The State and its political subdivisions… shall plan and manage the growth of the population to protect and preserve the public health and welfare…each political subdivision, as provided by general law, may plan and manage the growth of its population in a more restrictive manner than the State.”
The county shall protect and conserve all of our natural resources and shall manage population growth to protect and preserve public health and welfare. This doesn’t say county officials may protect the environment or manage the population if they so choose. It says clearly they shall do it.
Those involved in the actual work of environmental protection and growth issues will tell you the county and the state are failing badly in both of these areas. Take a look at the traffic, or at the lack of sewers and related sewage treatment facilities. Or if you need further convincing, check out the coastal water quality monitoring. If you think our population is being managed adequately and that the public welfare is being cared for properly, try to find an affordable house to rent.
We have the correct words in our constitution — we just need our elected leaders to follow the law they are swearing an oath to.
•••
Gary Hooser is the former vice chair of the Democratic Party of Hawai‘i, and served eight years in the state Senate, where he was majority leader.
