{"id":6375,"date":"2023-01-02T11:10:22","date_gmt":"2023-01-02T21:10:22","guid":{"rendered":"https:\/\/hawaiiankingdom.org\/blog\/?p=6375"},"modified":"2023-01-02T16:10:21","modified_gmt":"2023-01-03T02:10:21","slug":"exposing-the-achilles-heal-of-the-state-of-hawaii-judiciary","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/exposing-the-achilles-heal-of-the-state-of-hawaii-judiciary\/","title":{"rendered":"Exposing the Achilles Heel of the State of Hawai\u2018i Judiciary"},"content":{"rendered":"\n

Since the Permanent Court of Arbitration verified and acknowledged the Hawaiian Kingdom to still exist as a State under international law in 1999 in Larsen v. Hawaiian Kingdom<\/a><\/em><\/strong>, it\u2019s been a slow but methodical progression of exposing this legal reality. For the Hawaiian Kingdom to be a State in continuity since the nineteenth century despite the United States illegal overthrow of its government on January 17, 1893, it radically shifted the legal and political terrain concerning the United States\u2019 presence and the State of Hawai\u2018i\u2019s control over Hawaiian territory. From the 50th State of the American Union to an Occupied State under a prolonged and illegal occupation.<\/p>\n\n\n\n

While under international law, there is a rule that effective control by the government of the State over its territory is the exercise of sovereignty, this independence rule does not apply over territory of another State during military occupation. Under international humanitarian law, when a State is in effective control over occupied territory it triggers the law of occupation, not sovereignty, which obligates the occupying State to temporarily administer the laws of the occupied State until a treaty of peace is concluded. In the Hawaiian situation, the State of Hawai\u2018i and the Counties are in effective control of the territory of the Hawaiian Kingdom and are subject to the international law of occupation. Their effective control is not an exercise of sovereignty. According to Professor Krystyna Marek:<\/p>\n\n\n\n

\n

Belligerent occupation is thus the classical case in which the requirement of effectiveness as a condition of validity of a legal order is abandoned. The explanation of this unusual fact is to be found in the temporary nature of belligerent occupation. International law could not permanently relinquish the requirement of effectiveness, since this would mean reducing international law and relations to a pure fiction. But belligerent occupation is by definition not of a lasting character. Sooner or later it is bound to end, whether in favour of the occupied or the occupying State.<\/p>\n<\/blockquote>\n\n\n\n

Once believed to be a democratically elected government under United States laws, the State of Hawai\u2018i, under international law, is an American armed force and not a government. The leadership of the State of Hawai\u2018i and the Counties are citizens of the United States. This is similar to the situation in Cyprus<\/a><\/strong> after it became an independent State on August 16, 1960, from Great Britain. In 1974, Turkey invaded the Republic of Cyprus and established the Turkish Republic of Northern Cyprus<\/a><\/strong> as a Turkish armed force. The northeastern territory of Cyprus has been under Turkish occupation, through its proxy the Turkish Republic of Northern Cyprus, since 1974. The difference, however, is that the Hawaiian Kingdom is an internationally recognized sovereign and independent State, but the Turkish Republic of Northern Cyprus is not. <\/p>\n\n\n\n

In 1959, the United States Congress established the State of Hawai\u2018i<\/a><\/strong> by legislation to be the successor of the Territory of Hawai\u2018i<\/a><\/strong> that the Congress established in 1900. In the 1900 statute, the Congress specifically stated that the Territory of Hawai\u2018i is the successor of the Republic of Hawai\u2018i. And the Republic of Hawai\u2018i was the successor to the provisional government that President Grover Cleveland stated<\/a><\/strong> to the Congress that it \u201cowes its existence to an armed invasion by the United States\u201d on January 16, 1893. President Cleveland also concluded that the provisional government was \u201cneither a government de factor<\/em> nor de jure<\/em>\u201d but self-declared.<\/p>\n\n\n\n

When an occupying power imposes its legislation and administrative measures over the territory of an occupied State, it constitutes the war crime of usurpation of sovereignty during military occupation<\/em>. For this war crime not to have been committed in the Hawaiian Islands, the Hawaiian Kingdom, as an independent State, would had to have been extinguished by the United States under international law and acquired its sovereign territory. To have extinguished the Hawaiian Kingdom, the United States needs to show evidence of a treaty of cession, whether by conquest or otherwise. Examples of foreign States ceding portions of their sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico<\/em> that ended the Mexican American War, and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain<\/em> that ended the Spanish American War.<\/p>\n\n\n\n

There exists no such treaty. Instead, the United States enacted a congressional law on July 7, 1898, purporting to have annexed the Hawaiian Islands. The legislation was called a joint resolution of annexation<\/a><\/strong>. This act itself, being American legislation, is the war crime of usurpation of sovereignty during military occupation<\/em>.<\/p>\n\n\n\n

In 1994, the State of Hawai\u2018i Intermediate Court of Appeals established a precedent case called State of Hawai\u2018i v. Lorenzo<\/a><\/em><\/strong>. In that case, it set the precedence for defendants who argue that the courts do not have jurisdiction because of the Hawaiian Kingdom\u2019s continued existence, they must present a factual or legal basis for concluding that the Kingdom exists as a State under the rules of international law. The Supreme Court, in State of Hawai\u2018i v. Armitage<\/a><\/strong><\/em>, clarified the evidentiary burden that Lo\u00adrenzo placed upon defendants. The court stated:<\/p>\n\n\n\n

\n

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the Kingdom of Hawai\u2018i \u201cexists as a state in accordance with recognized attributes of a state\u2019s sovereign nature[,]\u201d and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai\u2018i lack of jurisdiction over him or her.<\/p>\n<\/blockquote>\n\n\n\n

Since 1994, State of Hawai\u2018i courts denied attempts by defendants to dismiss their cases because of the Lorenzo<\/em> principle. In other words, these courts were asserting that the defendants failed to present any factual or legal basis that the Kingdom continues to exist as a State. This was the case until the Council of Regency got involved in order to expose the illegality of the American occupation in the court system.<\/p>\n\n\n\n

The Regency was working with attorney Dexter Ka\u2018iama who had been representing defendants who were arguing that the courts of the State of Hawai\u2018i have no jurisdiction. His arguments were based on State of Hawai\u2018i v. Lorenzo<\/em>, which the Appellate court and the Supreme Court stated that defendants had the burden of providing evidence of a factual or legal basis that the Hawaiian Kingdom continues to exist as a State. Ka\u2018iama provided evidence that met that burden.<\/p>\n\n\n\n

In a 2012 case that came before Circuit Judge Glenn Hara in Hilo, Wells Fargo Bank v. Kawasaiki<\/em>, Judge Hara openly stated what all the judges knew after Ka\u2018iama presented the irrefutable evidence of the Kingdom\u2019s continued existence. The transcript<\/a><\/strong> of the case preserved the record, which stated:<\/p>\n\n\n\n

\n

MR. KAIAMA: The scope of my special appearance, Your Honor, is to make argument and presentation with respect to Ms. Kawasaki\u2019s 12(b)(1) motion to dismiss challenging the subject matter jurisdiction of this court, Your Honor.<\/p>\n\n\n\n

THE COURT: Okay. So here\u2019s the court\u2019s inclination, Mr. Kaiama. And in answer to the plaintiff\u2019s comment that maybe the motion may be delayed, it looks like the motion is one that challenges the subject matter jurisdiction. At least on its face. But\u2014and any time there is a jurisdictional challenge, it can be made at any time. That\u2019s my understanding. Because if the court has no jurisdiction then whatever the court does is void. Um, so I\u2019m treating this as a motion to dismiss for the court\u2019s lack of subject matter jurisdiction for the reasons stated. And that is that the argument is that the Kingdom of Hawaii still exists, and therefore, in essence, this court has no jurisdiction, it\u2019s the courts of the Kingdom of Hawaii. That\u2019s how I\u2019m taking the motion. Mr. Kaiama?<\/p>\n\n\n\n

MR. KAIAMA: And that is essentially Ms. Kawasaki\u2019s motion and our argument.<\/p>\n\n\n\n

MR. KAIAMA: I have now been arguing, Your Honor, this motion before judges of the courts of the circuit court and district court throughout the State of Hawaii, and nearly\u2014and probably over 20 times, and in not one instance has the plaintiff in the cases challenged the merits of the executive agreements to show that either it\u2019s not an executive agreement or that the executive agreements have been terminated. Because we belief, respectfully, again Your Honor, they cannot.<\/p>\n\n\n\n

THE COURT: No, but, Mr. Kaiama, I think you failed\u2014in my mind, what you\u2019re asking the court to do is commit suicide, because once I adopt your argument, I have no jurisdiction over anything. Not only these kinds of cases where you may claim either being a citizen of the kingdom, but jurisdiction of the courts evaporate. All of the courts across the state, from the supreme court down, and we have no judiciary. I can\u2019t do that.<\/p>\n\n\n\n

THE COURT: I think what [Mr. Kaiama is] saying is the argument is that if, in fact, I buy into his arguments then this court has no jurisdiction over any matter. That\u2019s his analysis, I think.<\/p>\n\n\n\n

MS. HIROSANE [for Wells Fargo]: And that\u2019s my understanding of it too, Your Honor.<\/p>\n\n\n\n

THE COURT: Okay. So the court will deny the motion to dismiss the complaint pursuant to Hawaii Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.<\/p>\n<\/blockquote>\n\n\n\n

Hara\u2019s extra-judicial or unlawful order led to Wells Fargo Bank\u2019s pillaging of defendant\u2019s home and property by a court that possessed no jurisdiction. As acknowledged by Hara in the transcript, \u201cif the court has no jurisdiction then whatever the court does is void.\u201d The defendant was the victim of the war crime of usurpation of sovereignty during military occupation<\/em>, deprivation of fair and regular trial<\/em>, and pillaging<\/em>.<\/p>\n\n\n\n

To stop the State of Hawai\u2018i\u2019s judiciary from unravelling, the Supreme Court, in 2013, in State of Hawai\u2018i v. Kaulia<\/a><\/em><\/strong>, responded to a defendant\u2019s arguments that was like the case that came before Judge Hara except that Ka\u2018iama was not his attorney. The Supreme Court stated that the defendant \u201ccontends that the courts of the State of Hawai\u2018i lacked subject matter jurisdiction over his criminal prosecution because the defense proved the existence of the Hawaiian Kingdom and the illegitimacy of the State of Hawai\u2018i government.\u201d With only American case law and municipal laws to rely on, the Supreme Court responded with, \u201cWhatever may be said regarding the lawfulness of its origins, the State of Hawai\u2018i is now, a lawful government. Individuals claiming to be citizens of the Kingdom and not the State are not exempt from application of the State\u2019s laws.” <\/p>\n\n\n\n

The Supreme Court was silent in providing evidence of the lawfulness of the State of Hawai\u2018i, which, according to the rules of evidence, silence is an acknowledgement of its unlawfulness. According to Professor Nuno Antunes, under international law, acquiescence<\/em> \u201cconcerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstances such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.\u201d On acquiescence, the International Court of Justice in Case concerning the Temple of Preah Vihear (Cambodia v. Thailand)<\/a><\/strong><\/em>, the Court stated:<\/p>\n\n\n\n

\n

It has been contended on behalf of Thailand that this communication of the maps by the French authorities was, so to speak, ex parte, and that no formal acknowledgment of it was either requested of, or given by, Thailand. In fact, as will be seen presently, an acknowledgment by conduct was undoubtedly made in a very definite way; but even if it were otherwise, it is clear that the circumstances were such as called for some reaction, within a reasonable time, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset<\/em>. <\/p>\n<\/blockquote>\n\n\n\n

On June 1, 2013, Ka\u2018iama was licensed<\/a><\/strong> to practice law in the Hawaiian Kingdom. His license was issued by Hawaiian Kingdom Supreme Court First Associate Justice Allen K. Hoe. On August 11, 2013, Ka\u2018iama petitioned the Council of Regency for a commission as Attorney General after Gary V. Dubin resigned. Ka\u2018iama stated:<\/p>\n\n\n\n

\n

As an Attorney, Counselor, Solicitor and Proctor who has been admitted to practice in al the courts of the Hawaiian Kingdom on June 1, 2013, by the Honorable Allen K. Hoe, First Associate Justice, I respectfully and humbly petition the Council to consider me for the office of acting Attorney General of the Hawaiian Kingdom in light of the recent resignation of Gary V. Dubin, Esq., from the office of the same.<\/p>\n<\/blockquote>\n\n\n\n

After consideration, the Council of Regency commissioned<\/a><\/strong> Dexter Ke\u2018eaumoku Ka\u2018iama as Attorney General.<\/p>\n\n\n\n

Attorney General Ka\u2018iama continued to represent defendants in both civil and criminal cases making the argument that the court does not have jurisdiction or authority over the cases because they were unlawful. But in every case that came before these courts across the islands, the judges were not following the Lorenzo<\/em> precedent, which is their own rule. Without any proof of evidence that countered Attorney General Ka\u2018iama\u2019s or, in other words, provided any evidence that the Hawaiian Kingdom no longer exists as a State under the rules of international law, they just steam rolled forward as if there was no problem with their authority. As Professor Marek explained:<\/p>\n\n\n\n

\n

Thus, the relation between effectiveness and title seems to be one of inverse proportion: while a strong title can survive a period of non-effectiveness, a weak title must rely heavily, if not exclusively, on full and complete effectiveness. It is the latter which makes up for the weakness in title. Belligerent occupation presents an illuminating example of this relation of inverse proportion.<\/p>\n<\/blockquote>\n\n\n\n

The utter disregard by the State of Hawai\u2018i courts, to include the Supreme Court, to the rules of fair play and evidence based arguments only proves its “weakness in title” against the Hawaiian Kingdom’s “strong title.” Under international criminal law, these actions taken by the courts, which are preserved in the court filings, comprise the Achilles heel<\/a><\/em><\/strong>, which is the weakness despite the strength of the State of Hawai\u2018i judiciary. The actions taken in violation of the law of occupation gives rise to war crimes and individual criminal culpability. There are no statute of limitations for war crimes. These actions do come under the investigative authority of the Royal Commission of Inquiry<\/a><\/strong>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Since the Permanent Court of Arbitration verified and acknowledged the Hawaiian Kingdom to still exist as a State under international law in 1999 in Larsen v. Hawaiian Kingdom, it\u2019s been a slow but methodical progression of exposing this legal reality. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,4],"tags":[],"class_list":["post-6375","post","type-post","status-publish","format-standard","hentry","category-international-law","category-war-crimes"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p31YBQ-1EP","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6375","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/comments?post=6375"}],"version-history":[{"count":22,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6375\/revisions"}],"predecessor-version":[{"id":6398,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6375\/revisions\/6398"}],"wp:attachment":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/media?parent=6375"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/categories?post=6375"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/tags?post=6375"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}