Legal opinion says QR cannot call Parliament without advice of PM or Cabinet

The legal opinion by constitutional adviser, Dr Alex Frame QC is firmly of the view that the Queen’s Representative does not have the powers to call Parliament under the Cook Islands Constitution of his own initiative and without the advice of the Prime Minister.
Crown Law had requested the opinion in response to the joint petition signed by 19 Members of Parliament to the Queen’s Representative, Sir Frederick Goodwin demanding that he recall Parliament.
The advice was particularly to address the issue of “where doubts might have arisen whether the incumbent Prime Minister continued to enjoy the support of a majority of Members of Parliament”.
Dr Frame replied that he previously address same issue in 1986 and 1999 and referred to ‘the clear terms of Article 5 of the Constitution’ where ‘the representative of Her Majesty the Queen shall act on the advice of Cabinet, the Prime Minister, or the appropriate Minister, as the case may be.’
The signatories were the Demo Party, Cook Islands Party and Independent MP, who wanted to have Parliament recalled so that they could determine whether the Prime Minister still continued to have the support of the majority of the House of Parliament.
The support for the PM and his Cabinet was to be put to the test by a no confidence vote which he would be likely to fail as there are only five of them, as opposed to 10 Demo MPs led by Sir Terepai Maoate, and 8 Opposition MPs led by Hon Tom Marsters and the sole Independent MP, Hon Piho Rua.
Given the Opposition Party involvement, the Dr Frame opinion also noted the 2006 advice tendered by the late John McFadzien, who had been asked to advise the QR on whether he could summon Parliament on advice of the Leader of the Opposition. The reply was that the Constitution provides that the QR can only summon Parliament on advice of the PM, Cabinet or an appropriate Minister.
However, it is not all plain sailing for the PM and Cabinet, because the legal opinion from 1999 had ‘noted one cloud in other apparently clear constitutional sky’ which is the Solomon Islands Court of Appeal decision in Hilly v Governor-General [1994].
In that case, the Governor General had directed the Speaker to convene Parliament in order to allow a vote of ‘no confidence’ in their Prime Minister. In the opinion of Dr Frame, the circumstances were ‘extreme’ because Parliament for 9 months because Hilly was concerned that he would lose a ‘no confidence’ vote in Parliament.
The legal opinion also referred to the case of Ulufa’alu v Governor General [2001] also in Solomon Islands, where on 1 September 1998, the Governor General unilaterally called for a special meeting of Parliament for 8 September 1998 ‘to consider and determine the confidence in the Prime Minister’.
However, the Court of Appeal reversed the Ulufa’alu case in September 1999 with president of the Court, Sir Anthony Mason saying: ‘the Court should not interpret the Constitution in such a way as to authorize the Governor Genral to intervene in the parliamentary political process, either by making a judgment that the PM has lost, or appears to have lost, the confidence of Parliament, or by convening a meeting of Parliament on the initiative of the Opposition.’
Prime Minister and Cabinet not out of the woods
Prime Minister, Jim Marurai and Cabinet are not out of the woods with the legal opinion offered by Dr Alex Frame as there are some important qualifications to his advice.
Dr Frame wrote that ‘there is no authority under the Cook Islands Constitution for the Queens Representative to exercise the power to call Parliament under Article 59 of the Constitution without the advice of the PM or Cabinet’ and the ‘position is clear as a matter of strict law’.
However, he ahs also added the sage words of 19th Century British Prime Minister Gladstone who said that the Westminster constitutions required ‘good sense and good faith of those who work it and this tradition would ultimately ask a Prime Minister who is unable to maintain, or within a reasonable time restore, his majority in Parliament to take one of three courses: tender his resignation as PM, to advise the calling of Parliament to put the matter to the test; or advise the dissolution of Parliament so fresh elections can take place.’

Headlines : Times 290 02 March 2009
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