The Constitutional crisis in the Cook Islands
An introduction to the issues - by Charles Sweeney QC
The purpose of this article is to identify the legal issues which arise so that the citizens of the Cook Islands and other interested parties can make informed judgments for themselves. This writing expresses no conclusions. The summary of issues does not express conclusions but endeavours to identify possible issues.
WHAT THE ANNOUNCEMENT by the QR MEANS.
The Queen’s Representative (“QR”) states that he had received advice from the Prime Minister to dissolve Parliament. He also states that he has accepted that advice and has decided “with immediate effect” to dissolve Parliament.
The QR says that his reason for accepting the advice is that he is satisfied that “under article 37(3) of the Constitution, I have a discretion as to whether or not I am obliged to act upon that advice”.
WHAT ARTICLE 37 OF THE CONSTITUTION PROVIDES.
The discretion conferred upon the QR by this provision is the discretion to be satisfied that in tendering the advice to dissolve Parliament, the Prime Minister commands the confidence of a majority of members of Parliament.
This means that, if the QR’s is not satisfied that the Prime Minister meets this requirement, the QR is not “obliged” to act on the advice of the Prime Minister.
Under Article 37(3) the QR “may” at any time dissolve Parliament if he is advised to do so by the Prime Minister. If it is a fact that the Prime Minister cannot satisfy the QR that he commands the confidence of a majority of the Parliament, all this means is that the QR is not obliged to accept the advice. He may do so or he may refuse to do so.
It is an interesting question as to what the Constitution means by the expression: “that in tendering that advice the Prime Minister commands the confidence of a majority of the members of Parliament”. It might mean that, at the time that he tenders the advice, the Prime Minister would survive a confidence motion. Or it might mean that the subject of the advice would be approved by a majority of members. If it has the former meaning, it is an interesting question about whether that judgment must be made on the assumption that the members of Parliament are aware of the advice given by the Prime Minister or intended to be given by him to the QR or not.
These interesting issues do not arise in the present case, because it seems obvious that the Prime Minister did not, at the time he gave the advice to the QR, command the confidence of a majority of the members of Parliament, if you assume that the person elected on the weekend was to be counted. Perhaps the Prime Minister might argue that the person elected was not yet a member of Parliament and so he did still command the confidence of a majority of members of Parliament. A person is not a member of Parliament until the result of the election is declared and he is not entitled to sit or vote until he has taken the oath before the Speaker. This is provided for by Article 30 and it appears that the new member was not sworn in by the Speaker until after the QR had dissolved the Parliament (and so it did not validly occur at all if the dissolution was valid).
It appears that the QR had concluded that the Prime Minister did not enjoy the confidence of the Parliament, otherwise he would not have considered that he had a discretion to accept the PM’s advice under Article 37.
IS THE PRIME MINISTER’S MOTIVE RELEVANT?
The factual situation makes it reasonably clear that the Prime Minister’s motive in giving the dissolution advice to the QR was to avoid losing office as Prime Minister as a result of losing a no confidence motion in Parliament.
When Parliament passes a no confidence motion in a Prime Minister, article 14(3)(b) of the Constitution provides that:
“The appointment of the Prime Minister shall be terminated by the Queen’s Representative...if Parliament passes a motion in express words of no confidence in Cabinet or if Cabinet is defeated on any question or issue which the Prime Minister has declared to be a question or issue of confidence:
Provided that, if after the passing of such motion or after that defeat the Prime Minister so requests, the Queen’s Representative, acting in his discretion, may dissolve Parliament instead of terminating the appointment of the Prime Minister.”
WHAT DOES ARTICLE 14 MEAN?
Although the QR stated that he was acting under Article 37(3), he has a power under Article 14 to dissolve Parliament in certain circumstances. It seems to be clear that the reason that the QR did not act under Article 14 is that the power to dissolve the Parliament instead of terminating the Prime Minister only arises after the Prime Minister has been defeated on the floor of Parliament. It appears that the Prime Minister elected to tender the dossolution advice before suffering a defeat on a no confidence motion.
WHEN IS PARLIAMENT ACTUALLY DISSOLVED?
The sitation raises this important point because, after the QR announced that he was dissolving Parliament, the members of the Opposition and the Speaker gathered in the Parliamentary chamber and the Speaker purported to open a session of Parliament during which a motion of no confidence was carried by all present. No members of the Government were present. The question therefore arises whether this was a valid Parlaimentary session or not.
That question depends upon whether Parliament had been dissolved or not. An announcement by the QR does not of itself dissolve Parliament. Article 37(3) provides that; “the Queen’s Representative may at any time, by notice published in the Cook Islands Gazette, dissolve Parliament”.
It follows that Parliament is dissolved when a notice in the Gazette to that effect is published.
It does not matter if the members of Parliament did not know of the publication. What is critical is the moment at which the number of the Gazette containing the notice is published.
WHAT IF PARLIAMENT WAS NOT DISSOLVED
The critical question is may not be whether Parliament was dissolved before it passed the motion of no confidence, but what is the effect if the motion was valdily passed. This raises the question of how one determines who is Prime Minister. The Constitution resolves this by providing in Articles 13 and 14 for the appointment and termination of a particular person as Prime Minister.
An appointment as Prime Minster may only be made by the QR. It cannot be made by Parliament. The effect of Article 14 is that, even if a serving Prime Minister suffers a defeat in a vote of confidence in Parliament, he may, instead of resigning, advise the QR to dissolve Parliament. If the QR accepts such advice, which he is not bound to do, the prime Minister who has been defeated on the floor of parliament goes into the election as serving Prime Minister.
One effect of this possibility is no doubt to produce the risk that, instead of a change of government resulting from a vote of no confidence, it could lead to a general election.
WHAT IS THE JURISDICTION OF THE COURTS?
Only very rarely in constitutional law, there is a debate or a dispute about the correctness of a decision of a Governor General or Queen’s Representative to dissolve Parliament or to dismiss a Prime Minister. A very dramatic example occurred in Australia in 1975 when the Governor General, Sir John Kerr, dismissed Mr Whitlam as Prime Minister and appointed Mr Fraser on condition that he immediately advised dissolution and an election. At the election, Mr Whitlam’s government suffered a very dramatic defeat.
When this happens, there is usually debate about whether the Courts can be asked to determine the legality of what the Vice Regal officer decided. In the Australian instance, the Governor General had taken advice from the Chief Justice of the High Court and, it transpired long afterwards, also from the Chief Justice of one of the Australian states.
The fact that the Governor General had taken such legal advice was itself a matter of great controversy, as it potentially placed the Chief Justice of Australia in a position of conflict if the legality of the Governor General’s actions should be challenged in Court. The Chief Justice responded to this criticism by claiming, in a defence of his actions made outside Court, that a decision of the Governor General could not be the subject of a claim in the Courts. Many constitutional lawyers do not regard this claim as self evidently correct.
The question arises whether, in the Cook Islands, a decision of a Queen’s Representative to dissolve Parliament can be challenged in the courts.
The first thing to note is that, under the common law, an action will not lie against the Crown for the exercise of a prerogative. This principle has been part of English law for hundreds of years and is still the law in England. It was affirmed as recently as the decision of the /House of Lords in Matthews v Scottish Ministers last year. But there are many, many cases which recognise this as a cardinal principle of English constitutional law.
England does not have a written constitution. The Cooks Islands does. In the written constitution, the powers of the QR are carefully set out and where the QR is intended to have a discretion not to accept advice, care has been taken to set this out.
With a written constitution of this kind, it is not certain that the Vice Regal decisions cannot be examined by a Court. What is clear is that, if a Court is satisfied that the QR had a discretion to act, it will not review his actual exercise of the discretion. What is not so clear is whether the Court wil lexamine the question of whether any occasion for the exercise of discretion arose at all.
THE POSITION OF THE CHIEF JUSTICE
The Australian constitutional crisis in 1975 involved the Chief Justice of Australia because he gave legal advice to the Governor General before the governor General dismissed the Prime Minister. In the Cook Islands, an issue of a slightly different kind arises. Under Article 7, the Chief Justice is the person who acts as QR if the office of QR is vacant or if the holder of that office is absent from the Cook Islands or if he is incapacitated or for any reason unable to act.
The Chief Justice is therefore, in a very real sense, the deputy or alternate for the QR.
Any issue which was raised for the determination of the Court would be an issue that related to the powers and discretions of an office with which the Chief Justice had a very close connection. It is arguable that a judge who is not the Chief Justice should hear any such claim.
It is not known yet whether the QR took any legal advice before acting and, if so, from whom he took it. It seems likely that the Prime Minister would have tendered legal advice, possibly from the Solicitor General, that the QR had the power to act as the Prime Minister was advising. But it is equally possible that the Solicitor General might have declined to advise given the party political nature of the subject matter.
It goes without saying that if the QR obtained advice from a judge, that judge would be bound not to sit on any claim brought before the court on the subject. There is not the slightest suggestion at the moment that any judge has given advice to the QR.
WHAT ARE THE CONSEQUENCES IN LAW OF THE PARLIAMENT SITTING AND PASSING A NO CONFIDENCE MOTION?
As we have seen, if the notice of dissolution was published in the Gazette before the Parliament “sat”, then there was in law no Parliament and the meeting was no more than the meeting in the Parliamentary chamber of a group of people who had previously been members of Parliament and the Speaker of Parliament.
Can a court determine this question?
The constitution contains a series of provisions which are intended to protect the business of Parliament from the scrutiny of or accountability to the Courts.
These provisions are set out in Article 36,
Privileges of Parliament and of its members.
The meaning of these provisions in the present circumstances is not clear. One view may be that anything done by people who were until recently members of Parliament and Speaker which involves their continuing to act as such cannot be challenged.
Another view is that before the immunity given by Article 36 arises, there must be a finding that there are lawful sessions of Parliament and that the immunity give is only to “any [valid] proceedings in Parliament”. Similarly, the immunity given to officers of the Parliament dpends upon their being a Parliament in existence.
These are not easy issues. A factor which supports the second view rather than the first is that most lawyers would say that if ordinary members of the pulbic who had never been members of Parliament invaded the Parliamentary chamber and pretended to hold a Parliamentary session ,they would be dealt with by the Courts as having no protection under the Constitution. If this is so, it is likely that a group of former Parliamentarians would be treated in the same manner as accountable for their conduct. It might not matter that they had been members of Parliament until a few minutes beforehand. The argument would be that, once the notice in the Gazette was published, there was no person able to claim the immunities in Article 36.
Article 29 provides that Parliament shall meet at such places and times as the QR shall appoint. It may be that the QR had not appointed the meeting following the election. However, if this were the only irregularity, it is likely that it would be covered by the immunity conferred by Article 36.
THE DILEMMA FOR THE COURTS
The facts in the Cook Islands raise a dilemma for the Courts. If the judges conclude that they cannot review the legality of the actions of the QR, they will at the least have to pronounce upon the consequences of those actions. That is because, unless the QR had validly dissolved Parliament, Article 36 would prevent the Courts from entertaining any challenge to the proceedings of the “Parliament” that took place afterwards. That in turn would lead to a chaotic position where there would be no definitive determination of whether a motion of no confidence had been passed or not or even whether the election was valid or not.
It would appear that, in this case, as distinct from the Australian crisis of 1975, it is very likely to involve the Courts.
WHERE DOES COOK ISLAND SOVEREIGNTY LIE?
Although it does not at the moment arise, it is an interesting curiosity of the Cook Islands Constitution that the description of the Sovereign is “Her Majesty the Queen in right of New Zealand”. It is possible to argue that, instead of exercising vice regal authority under delegation from the Sovereign, the Constitution creates the concept that the QR exercises the sovereignity of New Zealand over the Cooks. If this is correct, it is possible that the QR, when he exercises a personal discretion, does so on behalf of New Zealand.
This is an awkward concept, if it is a valid one. New Zealand does not have a written constitution. The manner in which New Zealand, as a sovereign body politic, exercises its sovereignity over the Cook Islands would fall to be determined by New Zealand law and not by the terms of a law, even a Constitution, passed by the Cook Islands legislature. Any New Zealand law could, in theory, be repealed or amended by the New Zealand Parliament, just as the Australian Constitution, which is a United Kingdom statute, could in theory be repealed by the UK Parliament, despite the subsequent Australia Act.This is perhaps not the occasion not to explore this too deeply but it rasies the possibility that a QR might consult the New Zealand Government before exercising a discretion. It is not known whether the QR did have any such consultations or not.

Charles A Sweeney QC
Rarotonga
27the July 2006.

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