On January 17, 1893, Queen Lili‘uokalani made specific reference to the Constitution when she yielded her authority under threat of war to the President of the United States. Often referred to as the Lili‘uokalani assignment, the protest was carefully worded. Her protest stated:
I, Lili‘uokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom.
That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the provisional government.
Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands.
In all she makes three references to the Hawaiian Constitution:
- “under the constitution of the Hawaiian Kingdom”;
- “the constitutional Government of the Hawaiian Kingdom”; and
- “the Constitutional Sovereign of the Hawaiian Islands.”
The Queen was a limited Monarch whose powers were granted under the constitution of the Kingdom. At no point does she even imply that she was an absolute Monarch, but rather a constitutional Monarch that place her authority below and not above the Constitution. The yielding of authority was limited and confined to the circumstances of the situation the Hawaiian government was facing with the United States troops.
Since 1864, the Hawaiian Kingdom fully adopted the constitutional principle of separation of powers. This is a fundamental principle and serves as the cornerstone of constitutional governance. The separation of powers doctrine provides for a check and balance between three branches: the Legislative power, which is the power to enact laws; the Judicial power, which is the power to interpret laws; and the Executive power, which is the power to execute laws. The constitutional powers of the Hawaiian Executive are much more vast than the Judicial and Legislative powers and includes both police power, which is law enforcement, and administrative power, which is to maintain and administer governance through agencies established by law. The doctrine also provides for the separation and not the consolidation of power into one entity, which could become the source of tyranny. The separation of powers is outlined in Article 20 of the Constitution, “The Supreme Power of the Kingdom in its exercise is divided into the Executive, Legislative, and Judicial; these shall always be preserved distinct, and no Judge of a Court of Record shall ever be a member of the Legislative Assembly.”
Constitutional Powers of the Monarch
The powers and duties of the Monarch are outlined in Articles 26 through 43 of the Constitution. “To the King belongs the Executive power (Article 31).” The Constitution provides explicit powers to the Monarch but also limitations in the exercise of this power. “No act of the King shall have any effect unless it be countersigned by a Minister, who by that signature makes himself responsible (Article 42).” The Minister is accountable to the Legislative Assembly because the “Ministry hold seats ex officio, as Nobles, in the Legislative Assembly (Article 43).” Here follows the chief categories of the Monarch’s Executive powers created by the Constitution.
Chief Executive. The Constitution does not make direct provision for the vast administrative structure that the Monarch must oversee, but it does cite this capacity in Article 41 of the Constitution where the Privy Council of State shall assist the Monarch “in administering the Executive affairs of the Government.” In order to administer government, the Monarch has a Cabinet that consists “of the Minister of Foreign Affairs, the Minister of the Interior, the Minister of Finance, and the Attorney General of the Kingdom, and these shall be His Majesty’s Special Advisers in the Executive affairs of the Kingdom; and they shall be ex officio Members of His Majesty’s Privy Council of State.” Provisions for the administration of government is provided in the Civil Code.
Police Power. The Monarch’s role in law enforcement rests on the constitutional requirement that the “laws are obligatory are obligatory upon all persons, whether subjects of this kingdom, or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the laws of nations in respect to Ambassadors or others (§6, Civil Code).” The Monarch serves as chief executive of government with police power vested in the Marshall, whose duty is “to preserve the public peace of the Kingdom, to have the charge and supervision of all jails, prisons and houses of correction, and to safely keep all prisoners committed thereto; to execute all lawful precepts, and mandates directed to him by the King, or by any judge, court, minister or governor; to arrest fugitives from justice, as well as all criminals and other violators of the laws; and, generally, to perform all such other duties as may be imposed upon him by law (§260, Civil Code).” Should assistance be needed, the Monarch can invoke the authority of “commander in chief” and deploy the armed forces, including units of the Kingdom’s militia, to enforce the law.
The authority the Queen temporarily yielded to the President under threat of war on January 17, 1893, was not her full executive power, but only her police power that would be utilized to apprehend the insurgents in order “to avoid any collision of armed forces, and perhaps the loss of life.” She did not yield her administrative power that includes the following categories of Executive power.
Appointment and Removal Power. One of the most important administrative powers of the Monarch is to appoint people to fill high-level positions in the administration such as the Privy Council of State and the Cabinet Council. Articles 41 and 42 gives the Monarch the power to select top officials, who hold office during the pleasure of the Monarch. There is no limit to the appointment power, but government officials are responsible to the Legislative Assembly. “The Nobles shall be a Court, with full and sole authority to hear and determine all impeachments made by the Representatives, as the Grand Inquest of the Kingdom, against any officers of the Kingdom, for misconduct or maladministration in their offices, and “No Minister shall sit as a Noble on the trial of any impeachment (Article 59).” The Legislative Assembly could also exercise their right of a vote of no confidence.
Clemency. The Constitution gives the Monarch the “power to grant reprieves and pardons, after conviction, for all offenses, except in cases of impeachment (Article 27).” Clemency or pardons can only be granted after the individuals have been convicted and not before.
Between November 13 and December 18, 1893, the Queen was in negotiations with the United States Ambassador to Hawai‘i, Albert Willis. The negotiations centered on the findings of the investigation by President Cleveland that concluded the United States diplomat and troops were responsible for the illegal overthrow of the Hawaiian government and committed to restore it. As a condition of the restoration, the Queen agreed to grant full pardons to the insurgents and their supporters. This was an executive agreement that came to be know as the Agreement of restoration.
Bills and Resolutions Passed by the Legislature. Under Article 31 of the Constitution, “All laws that have passed the Legislative Assembly, shall require His Majesty’s signature in order to their validity.” The Monarch’s signature must be “countersigned by a Minister, who by that signature makes himself responsible (Article 42).” But if the Monarch objects to the bills or resolutions, he “will return it to the Legislative Assembly, who shall enter the fact of such return on its journal, and such Bill or Resolution shall not be brought forward thereafter during the same session (Article 49).”
Legislative Proposals. The Constitution does not provide any provision for the Monarch to recommend legislation, but the Monarch does appoint Nobles to serve in the Legislative Assembly and his Cabinet Ministers are ex officio members of the Nobles as well. The power to recommend is inherent in the role the Monarch has when the Legislative Assembly is convened and the assembly is opened by a speech.
Budgeting. Article 44 of the Constitution gives the Monarch the power to recommend fiscal policies. “The Minister of Finance shall present to the Legislative Assembly in the name of the Government, on the first day of the meeting of the Legislature, the Financial Budget, in the Hawaiian and English languages.” The Legislature must past an appropriation bill based upon the report by the Minister of Finance. The power to control the budget process is one of the most important administrative prerogatives of the Monarch. It is the Monarch who decides where and how money should be spent.
In 1855, the Legislature was unable to pass an appropriation bill because of a disagreement of the House of Nobles and the House of Representatives, which at the time was a bicameral Legislature. The Minister of Finance estimated that the House of Representatives appropriation bill exceeded the revenues of the government by $200,000.00. This caused the Monarch to exercise the constitutional prerogative of dissolving the Legislature on June 16, 1855, and called for a new election of Representatives to meet with the House of Nobles in extraordinary session on July 30, 1855. The special session of the Legislature met for thirteen days and an appropriation bill was approved.
Power to Amend the Constitution. The power to amend or change the Constitution rests with the Legislative Assembly and the Monarch. Article 80 provides “Any amendment or amendments to this Constitution may be proposed in the Legislative Assembly, and if the same shall be agreed to by a majority of the members thereof, such proposed amendment or amendments shall be entered on its journal, with the yeas and nays taken thereon, and referred to the next Legislature; which proposed amendment or amendments shall be published for three months previous to the next election of Representatives; and if in the next Legislature such proposed amendment or amendments shall be agreed to by two-thirds of all the members of the Legislative Assembly, and be approved by the King, such amendment or amendments shall become part of the Constitution of this country.”
In 1887, under threat of assassination, King Kalakaua signed a new constitution for the country, which has come to be known as the “bayonet” constitution. This so-called constitution was in direct violation of Article 80, which made the 1864 Constitution along with the amendments still binding.
Emergency Powers. In times of crisis the Monarch can lay claim to extraordinary powers to preserve the Kingdom. Such emergency powers are granted expressly under Article 37 of the Constitution, “The King, in case of invasion or rebellion, can place the whole Kingdom or any part of it under martial law.”
Treaty Powers. Article 29 of the Constitution gives the Monarch “the power to make Treaties,” but “Treaties involving changes in the Tariff or in any law of the Kingdom shall be referred for approval to the Legislative Assembly.” So long as the treaty provides no change to any existing tariff or law of the Kingdom, the Monarch has full power to ratify with his signature and countersigned by a Minister.
Recognition and Appointment Powers. The Constitution explicitly grants the Monarch the power to appoint Public Ministers to serve diplomatic in a diplomatic capacity and to recognize foreign governments. Article 29 provides “The King appoints Public Ministers, who shall be commissioned, accredited, and instructed agreeably to the usage and law of Nations;” Article 30 provides “It is the King’s Prerogative to receive and acknowledge Public Ministers.” Because the acts of sending an ambassador to a country and receiving its representative imply recognition of the legitimacy of the foreign government involved, the Monarch has exclusive authority to decide which foreign governments will be recognized by the Hawaiian Kingdom.
Commander in Chief. Article 26 of the Constitution provides “The King is the Commander-in-Chief of the Army and Navy, and of all other Military Forces of the Kingdom, by sea and land; and has full power by Himself, or by any officer or officers He may appoint, to train and govern such forces, and He may judge best for the defense and safety of the Kingdom. The Constitution does not give the Monarch complete domination over the war-making function. The power to declare war is only with “the consent of the Legislative Assembly.”
Head of State and Head of Government. The Monarch is both Head of State and Head of Government. The Head of State serves as a symbol of the permanence of the national state, while the Head of Government administers governance. The Monarch’s role as Head of State includes the obligation to take the oath of office, deliver a message at the opening of the Legislative Assembly, and to receive ambassadors from other countries.