Let's get our voice back

by Keli’i Akina, PhD, Grassroot Institute, January 22, 2021

This week we witnessed the inauguration of a new president and the opening of the 31st Hawaii Legislature, two great symbols of our peaceful democratic process.

Unfortunately, the people of Hawaii haven’t had much democratic say in their own political affairs for almost a year now, since Gov. David Ige declared a state of emergency in an effort to mitigate the spread of COVID-19.

But could the 31st Hawaii Legislature play a role in changing all that? Will this be the moment the people of Hawaii begin to have a greater say in the way the coronavirus crisis and lockdowns are being handled?

When the Hawaii Legislature adjourned last year, it was after a shortened session that had been interrupted by the governor’s COVID-19 lockdown. Under the circumstances, the legislative priority was to address the state’s budget problems and other urgent matters.

Now, however, it has been more than six months since the last meeting of the Legislature, and we’ve had plenty of time to think about how this crisis has been handled. Since that time, we’ve seen state budget woes become more complex and the local economy sink further into depression. We’ve also been subject to a perpetual emergency status, wondering whether the next proclamation will restore or further restrict our freedoms.

Theoretically, the Legislature is supposed to balance the powers of our governor, along with the courts. It is the voice of the people of Hawaii. But during the coronavirus lockdowns, it has been missing in action, leaving the governor to exercise his extensive emergency powers unchecked.

That’s why the Grassroot Institute of Hawaii this week released a new report, “Lockdowns Versus Liberty,” calling on the Legislature to restore the checks and balances so necessary to our form of accountable self-government.

The report was written by Malia Hill,  Grassroot Institute of Hawaii policy director, who joined me on my “Hawaii Together” program this week to talk about why she wrote it.

“Over the past year,” she said, “we’ve thought about freedom in different ways, because you can’t deny that our lives changed under the lockdown. Things that we never even thought about as freedoms — like the right to go for a walk or the ability to go to work — all of a sudden became restricted.”

Hill explained that the purpose of the report is to consider how to better safeguard civil liberties during states of emergency. 

The answer, she said, lies not in the courts, but in legislative action. By amending the state’s emergency powers law, we can put an end to indefinite states of emergency, create a legislative check on the executive power and ensure that there are protections in place to guarantee that the government cannot easily infringe upon our rights.

Much can be done by following the examples of states that already have meaningful time limits on their periods of emergency. 

In Hawaii, emergencies are supposed to end after 60 days, but nothing prevents the governor from extending that period through another proclamation, as he has done repeatedly since last March. The Legislature should change this language to require legislative approval of any extension past a reasonable period — like, say, 30 days, which is a time limit used by many other states. 

The Legislature should also have the power to end an emergency period by concurrent resolution.

In addition, we should look at ways to protect liberty during health emergencies by requiring that any restrictions and regulations be narrowly tailored, with a clear connection to the public health aim. 

To better protect due process, the government should bear the burden of demonstrating the necessity and reasonableness of an order that shuts down a business or deprives someone of his or her rights.

The point is not to second-guess the governor, who has been faced with very difficult challenges during the past 11 months. I understand that it is not easy to find the balance between preserving civil liberties and protecting public health. But we simply must find ways to better deal with this problem in the future. 

I hope that Hawaii will never be faced with such a crisis again. But if we are, let’s hope that the people of Hawaii will have a voice in how it is handled.

E hana kākou! (Let's work together!)

Keli'i Akina, Ph.D.
President / CEO