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MEMORANDUM

 

March 12, 1998

 

TO: SUBJECTS OF THE KINGDOM

FROM: OFFICE OF THE REGENT

RE: SUFFRAGE OF FEMALE SUBJECTS

On March 12, 1997, at a public meeting held at the Queen Lili`uokalani Children Center at Halona, it was brought to the attention of this office by a female subject of the Kingdom, that there is no provision in the law that bars female subjects from voting in the election for Representatives of the Kingdom. She asserted that although the "voter qualification" statute specifically relates to the male gender, ß15, chapter III, title I, provides, in part, that "...every word importing the masculine gender only, may extend to and include females as well as males." Based upon the dubious nature of this statute in its relation toward both genders, I have diligently researched the election laws and have arrived at the following conclusion.

Synopsis.

ß 783, article XXXII, Civil Code of the Hawaiian Islands, Compiled Laws of 1884, p. 221, provides that every "...male subject of the Kingdom who shall have paid his taxes, who shall have attained the age of twenty years, and shall have been domiciled in the Kingdom for one year immediately preceding the election, and shall know how to read and write, if born since the year 1840, and shall have caused his name to be entered on the list of voters of his district, as hereinafter provided, shall be entitled to one vote for Representative or Representatives of that district; provided, however, that no insane or idiotic person, or any person who shall have been convicted of any infamous crime within this Kingdom unless he shall have been pardoned by the King, and by the terms of such pardon have been restored to all the rights of a subject, shall be allowed to vote; and no other person than those qualified as in this section provided shall be allowed to vote at any election for Representatives to the Legislative Assembly of this Kingdom."

"The intention of the makers of a statute is frequently to be collected from the cause or necessity for the statute; and whenever this intention can be discovered it ought to be followed with reason and discretion in the construction of the statute, although such construction may seem contrary to the letter of the statute." See Rixman v. Goodale, 1 Haw. 298, 300 [536, 540] (1856); Shillaber v. Waldo, 1 Haw. 21, 25, [31, 38] (1848).

Pursuant to ß 12, chapter III, title I, Civil Code of the Hawaiian Islands, Compiled Laws of 1884, p. 3, the statute provides that one "...of the most effectual ways of discovering the true meaning of the law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it." Therefore in order for this office to ascertain the intent of this statute as it relates to the Representative body, a careful examination of the old laws must first be done in order to determine the reason and spirit of their enactment.

In the year 1839 His Majesty King Kamehameha III declared protection for the persons and private rights of all his people from the highest to the lowest. In 1840 he granted the first Constitution by which he declared and established the equality before the law of all his subjects, Chiefs and people alike. By that Constitution, he voluntarily deprived himself of some of his powers and attributes as an absolute Sovereign, and granted certain political rights upon his subjects, admitting them to a share with himself in legislation and government. See Estate of His Majesty Kamehameha IV, 2 Haw. 720 (1864). The Constitution of 1840 specifically provides a provision respecting the Representative Body, by stating, in part, to wit, that there "...shall be annually chosen certain persons to sit in council with the Nobles and establish laws for the nation. They shall be chosen by the people..." These political rights that were conferred upon all subjects of the Kingdom were not limited to a specific gender, but rather upon his "people" who comprised the Chiefly class and the Commoner class.

On November 2, 1840, a statute providing the means of electing the Representative body in accordance with the requirements of the Constitution, was enacted by the House of Nobles and signed into law by the King. Section 3 of this election statute provides that should "...any man forge another's name as a signature to a letter written as above...he shall be fined ten dollars for every name thus criminally written." See chapter II, Of the Representative Body, Laws of 1842 (Old Laws). When this provision of a male gender is compared with the original provision of respecting the Representative body as stated in the Constitution, the latter does not disqualify the female gender, but merely states that certain persons are to be chosen to sit in council with the Nobles in order to establish laws for the nation. The Constitution does not specify that only men can vote for Representatives. On the contrary, the Constitution repels the conclusion of excluding the female gender from participating in the Legislative body, when that Constitution specifically provided for certain women to serve in the government, namely, Kekauluohi as Premier, and Hoapiliwahine, Kekau`onohi, Konia, and Keohokalole as members of the House of Nobles.

Since that first statute relating to the Representative body was enacted on November 2, 1840, in conformity with the Constitution of October 8, 1840, the following Statutes were passed by the Legislative Assembly and signed into law affecting the House of Representatives:

  • December 10, 1845, Second Act of Kamehameha III, "An Act to Organize the Executive departments of the Hawaiian Islands" Title i, part v, - Duties to the Legislative Branch of Government

  • July 30, 1850, "An Act to Increase the number of the Representatives of the People in the Legislative Council"

  • July 11, 1851, "An Act to Amend the Law relating to the Election of the Representatives of the People"

  • June 14, 1852, Constitution of 1852, "Articles 19, and 75-80"

  • May 26, 1853, "An Act to Regulate the number of the Representatives of the People"

  • June 16, 1853, "An Act Repealing Certain Laws," which includes Chapter II of the Old Laws, 1842, respecting the Representative Body

  • May 14, 1855, "An Act to Amend the Law relating to the Election of Representatives of the People"

  • May 30, 1856, "An Act to Amend an Act to Regulate the Election of Representatives of the People"

  • May 17, 1859, enactment of the Civil Code of the Hawaiian Islands,
      Article xxxi  -Of the House of Representatives
      Article xxxii  -Of the Election of Representatives
       -Of the Time and Place of Holding Elections
       -Of the Qualifications of Electors
       -Of the Manner of Conducting Elections
       -Mode of Annulling an Election and of Filling Vacancies
       -Provisions to Preserve the Purity of Elections

  • April 18, 1856, "Articles of Amendment of the Constitution of this Kingdom proposed and agreed to, pursuant to the 105th Article of the original Constitution"
    • Article 2 amending Article 29, which provides for the convening of both houses of the legislature
    • Article 6 amending Article 61, which provides when the legislative body shall assemble

  • August 20, 1864, Constitution of 1864, "Articles 18, 19, 28, 45-56, 60-63, 75-78, and 80"

  • December 31, 1864, "An Act regarding the Qualifications of Electors"

  • June 22, 1868, "An Act to Amend Section 788 of the Civil Code," providing for the Number of Representatives

  • June 22, 1868, "An Act to Amend Section 780 of the Civil Code," providing for the Voting Polls

  • June 24, 1868, "An Act to Establish the Compensation of Representatives"

  • June 24, 1868, "An Act to Repeal an Act entitled 'an Act Regarding the Qualifications of Electors,' approved December 31st, 1864, and to Regulate the Qualifications of Electors for Representatives to the Legislative Assembly of the Kingdom"

  • July 13, 1874, "An Act Providing for the Tenure of Office of Representatives"

  • July 13, 1874, "An Act to Regulate the Time for Holding Elections for Representatives"

  • August 7, 1874, "An Act to Amend Sections 2 and 3 of an Act entitled, 'an Act to Repeal an Act entitled an Act Regarding the Qualification of Electors for Representatives to the Legislative Assembly of the Kingdom as approved on the 24th of June, 1868, and to Repeal Sections 1 and 2 of Chapter 86 of the Penal Code"

  • August 3, 1876, "An Act to Amend Sections 796, 797, 799 of the Civil Code," pertaining to the Duties of the Legislative Assembly

  • September 15, 1876, "An Act to Amend Section 18, Chapter 86, of the Penal Code, of Holding Elections"

  • September 19, 1876, "An Act to Amend Chapter 86 of the Penal Code, 'regarding the Qualification of Electors,' by adding a new Section to be Numbered 17a"

  • May 2, 1882, "An Act to Authorize the Holding of an Election for Representative for the district of Kaanapali, Maui"

  • May 13, 1882, "A proposed Amendment to Article 56 of the Constitution granted by His Majesty Kamehameha v on the 20th day of August, a.d. 1864, as amended and approved on the 13th day of May a.d. 1868, according to Article 80 of the Constitution"

  • May 22, 1882, "An Act to Amend Section 1 of an Act entitled 'an Act to Establish the Compensation of Representatives,' approved on the 24th day of June, a.d. 1868"

  • July 11, 1884, "An Act to Amend Section 782 of the Civil Code, relating to Time and Places of Holding Elections"

  • October 7, 1886, "An Act to Amend Chapter lxxxvi of the Penal Code," relating to Inspectors of Elections

  • October 15, 1886, "An Act to Provide the Residence Required by Law as necessary to the Exercise of the Elective Franchise"

Careful examination of the Organic laws and Statutes which affect the Representative body of the Kingdom fails to disclose any provision precluding the female gender from participating in the electoral process, except for insane or idiotic persons or persons convicted of an infamous crime without a pardon by the Monarch. See ß 783, article XXXII, Civil Code of the Hawaiian Islands, Compiled Laws of 1884, p. 221.

In conclusion, the intent of the election statute was to have a Representative Body chosen by the people in order to help establish laws for the nation together with the King and Chiefs, and not a Representative Body to be chosen exclusively by men. This is in line with the intention of the Declaration of Rights of 1839, and the granting of the first Constitution, 1840, that "...conferred certain political rights upon his (King Kamehameha III's) subjects, admitting them to a share with himself in legislation and government." See Estate of His Majesty Kamehameha IV, 2 Haw. 720 (1864). According to Black's Law Dictionary, 6th Ed., p. 1325, political rights are defined as the "...power to participate, directly or indirectly, in the establishment or administration of government, such as the right of citizenship, that of suffrage, the right to hold public office, and the right of petition."

The issue here is not a question of whether Hawaiian women can or cannot participate in the election of Representatives or serving as a candidate for the House of Representatives, but whether there is any provision in the election laws that preclude Hawaiian women from participating. If no such provision exists, as the case be, then Hawaiian women do have a right to participate in the electoral process under their political right, and that the male gender referred to in the "qualifications of electors" does not preclude the female gender, provided the female is a subject of the Kingdom, of the age of 20 and is neither an idiot, an insane person, or a convicted felon.

 

                David Keanu Sai

                Regent, pro tempore





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