You are on page 1of 4

His Majesty Edmund K. Silva, Jr.

Nou Ke Akua Ke Aupuni O Hawaii

November 13, 2015

To:

Governor David Y. Ige


State of Hawaii
Executive Chambers,
State Capitol
Honolulu, Hawai`i 96813

Subject: Oral Argument.


Aloha mai kua e Governor Ige:
The customary participation in oral argument by presiding judges is to ask tough questions to both the
plaintiff and the defendant, giving no clear indication of which way the judge intends to rule. That
general rule makes one of the recent oral arguments in Hawaiian court extraordinary.
Anyone who listened to the oral argument before the Hawaii Supreme Court regarding the challenge to
the permit for the Thirty Meter Telescope knows that at least four of the judges telegraphed quite
openly that they intend to find the process by which TMT secured its permit to be unconstitutional.
One of the issues central to the Courts consideration was that the Board of Land and Natural Resources
voted to grant the permit and then convened the contested case hearing that would normally have as its
purpose examination of evidence to determine whether a permit should be granted or not.
Statements from the justices during the oral argument included the following:
I was trial judge for a long time. I dont recall ever making a decision where I decided the case
before the trial.

Ka Puuhonua O Na Wahi Pana O Hawaii Nei


kingdomofhawaii.info
hmkingdomofhawaii@gmail.com
http://en.wikipedia.org/wiki/List_of_bilateral_treaties_signed_by_the_Kingdom_of_Hawaii
The United Nations Charter provides the rest of the authority to do it. (An autonomous independent sovereign nation-state contemplated
under Article 1 of the 1933 Montevideo Convention on Rights and Duties of States requiring the state as a person of international law
possessing the four qualifications of (a) a permanent population, (b) a defined territory, c) government;
and (d) capacity to enter into relations with the other states.)

Page 2

Justice must not only be done. But manifestly be seen to be done.


Do you think that due process allows a court in a trial, in a case where a plaintiff files a lawsuit,
for the judge to say here is my judgment in favor of the plaintiff? We will now have a trial?
I could not find any reported cases in which this process had been followed where the board
actually issued a permit and then had a contested case hearing.
Do you think that the process that the BLNR followed here furthers public confidence in the
system?
Your administration had numerous representatives present at that oral argument, including the
Attorney Generals Office and the Board of Land and Natural Resources. Those representatives can
confirm for you what everyone present says the permit is going to be invalidated. You can listen
directly to the oral argument on the Internet.
I have heard only two challenges to the conclusion that the permit is going to be invalidated.
There are those who argue that the Hawaiian judicial system is so corrupted and subject to outside
influences that the Supreme Court justices will simply ignore the obvious unconstitutional nature of the
process which led to issuing the permit and uphold the legitimacy of the permit.
There are those who argue that the TMT will pursue enough construction to convince the Court that it is
too late to stop the project.
I do not embrace either of those suggestions. I am firmly among those who believe the invalidation of
the permit is going to happen within the next two or three months. If the justices had any intention of
upholding the permit, they would not have been so unambiguous is their denunciation of the permitting
process.
In the short time remaining before the permit is invalidated, little construction progress can be made by
the TMT, certainly not enough to create even a colorable argument against permit invalidation.

Ka Puuhonua O Na Wahi Pana O Hawaii Nei


Nou Ke Akua Ke Aupuni O Hawaii
kingdomofhawaii.info
http://en.wikipedia.org/wiki/List_of_bilateral_treaties_signed_by_the_Kingdom_of_Hawaii
The United Nations Charter provides the rest of the authority to do it. An autonomous independent sovereign nation-state contemplated under
Article 1 of the 1933 Montevideo Convention on Rights and Duties of States requiring the state as a person of international law possessing the
four qualifications of (a) a permanent population, (b) a defined territory, c) government; and (d) capacity to enter into relations with the other
states.

Page 3

Given this reality, I am appalled that you would support a resumption of construction by TMT, rather
than calling upon them to wait until the Supreme Court rules. The resumption of construction serves
only one purpose provocation. Knowing that their project is in jeopardy, the TMT leadership has
decided to recreate the confrontation that led to suspension of construction.
First they have conducted a public relations campaign designed to convince the public that the
astronomer community are wonderful stewards of the sacred mountain and that public opinion strongly
supports the construction of TMT. In the full-page advertisement in the Hawaii Tribune-Herald on
November 4, placed by the Maunakea Observatories, the astronomers state:
[Mauna a Wkea] is home to an incredible diversity of ecosystems and represents a cultural
anchor for much of Polynesia.
The astronomers continue their attempt to relegate the traditional faith of the Hawaiian people to the
status of a culture. Do you believe that Buddhism is a faith or a culture? Do you believe that Christianity
is a faith or a culture? If Buddhism and Christianity are faiths, why is the traditional faith of the Hawaiian
people a culture?
I think the answer to that question is obvious. To acknowledge the living traditional faith would require
acknowledging the spiritual protocols of that faith. Under those protocols, the TMT would never be
built on the sacred Mountain.
For the State to grant a permit to violate those protocols would require a compelling governmental
purpose. A private organization wishing to build an instrument for astronomical tourism would not
meet that compelling purpose test.
The public relations campaign is trying to hide the truth and manipulate public opinion. You have
acknowledged that stewardship of the mountain has been seriously deficient and results of a poll
designed to elicit specific answers mean nothing.
Second, the Board of Land and Natural Resources Chairperson rattled the sword wielded by the DLNR
law enforcement in an attempt to provoke the Protectors of the Mountain, who withstood repeated
arrests in the prior confrontation.

Ka Puuhonua O Na Wahi Pana O Hawaii Nei


Nou Ke Akua Ke Aupuni O Hawaii
kingdomofhawaii.info
http://en.wikipedia.org/wiki/List_of_bilateral_treaties_signed_by_the_Kingdom_of_Hawaii
The United Nations Charter provides the rest of the authority to do it. An autonomous independent sovereign nation-state contemplated under
Article 1 of the 1933 Montevideo Convention on Rights and Duties of States requiring the state as a person of international law possessing the
four qualifications of (a) a permanent population, (b) a defined territory, c) government; and (d) capacity to enter into relations with the other
states.

Page 4

Why would you and TMT want to recreate the confrontation when the permit is about to be
invalidated? I can perceive only one goal of such a decision misdirection. The TMT wants the public to
get all upset that protestors are blocking these innocent and culturally sensitive astronomers from
simply pursuing scientific knowledge. You want to direct public attention away from the fact that State
of Hawaii agency violated the constitutional rights of the public to be heard prior to a State decision,
like issuance of the permit, being made.
As a side benefit, your administration and TMT might hope that the provocation and subsequent
confrontation would influence the Supreme Courts decision.
I call upon you to show leadership regarding the TMT by urging TMT to delay any resumption of
construction until the Supreme Court rules. If that ruling is what we expect, there will be no basis for
resumption of construction and no need for the Protectors of the Mountain to respond to such a
provocation.

Ua Mau ke Ea o ka ina i ka Pono,

Edmund K. Silva, Jr.


Alii Nui Mi
cc:

Na Kupuna Council O Hawaii Nei ame Moku


Alii Manao Nui Lanny Sinkin
Minister of Foreign Affairs

Ka Puuhonua O Na Wahi Pana O Hawaii Nei


Nou Ke Akua Ke Aupuni O Hawaii
kingdomofhawaii.info
http://en.wikipedia.org/wiki/List_of_bilateral_treaties_signed_by_the_Kingdom_of_Hawaii
The United Nations Charter provides the rest of the authority to do it. An autonomous independent sovereign nation-state contemplated under
Article 1 of the 1933 Montevideo Convention on Rights and Duties of States requiring the state as a person of international law possessing the
four qualifications of (a) a permanent population, (b) a defined territory, c) government; and (d) capacity to enter into relations with the other
states.

You might also like