Reference by the Queen's Representative [1983] CKCA 3 (29 July 1983)

IN THE COURT OF APPEAL
OF COOK ISLANDS

REFERENCE BY THE QUEEN'S REPRESENTATIVE

Coram:
Speight, C.J., Dillon J. and Keith, J.

Counsel:
D. L. Mathieson for the Hon. Mr. G.A. Henry, the Prime Minister
V. A. K. T. Ingram, the Leader of the Opposition
The Solicitor-General, M. C. Mitchell, for His Excellency the Queen's Representative

Hearing: 30 June 1983 (Auckland)
Judgment: 29 July 1983 (Rarotonga)

OPINION OF THE COURT
DELIVERED BY SIR GRAHAM SPEIGHT

The Litigation

His Excellency the Queen's Representative, on 14th June 1983, acting under section 3 of the Judicature Act 1980-81 and on the advice of the Prime Minister, referred to the High Court certain questions relating to the interpretation of articles 13 and 14 of the Constitution. The reference noted that doubt had arisen as to the interpretation or effect of the provisions and the Prime Minister's letter of advice mentioned as well a conflict of legal opinion. In accordance with a direction from the Queen's Representative the Solicitor-General initiated the necessary proceedings.

The Chief Justice, acting under section 53 of the Judicature Act 1980-81, removed the hearing of the proceedings into this Court.

The provisions of the Constitution which are principally under consideration are as follows:-

"13. Cabinet

(2) The Prime Minister shall be appointed as follows:

(a) If the appointment is to be made while Parliament is in session, the Queen's Representative shall appoint as Prime Minister a member of the Parliament who commands the confidence of a majority of the members of the Parliament;

(b) If the appointment is to be made while the Parliament is not in session, the Queen's Representative shall appoint as Prime Minister a member of the Parliament who in the opinion of the Queen's Representative, acting in his discretion, is likely to command the confidence of a majority of the members of the Parliament;

(c) If the appointment is to be made after a dissolution of the Parliament and before the holding of the general election of the Parliament following that dissolution, the Queen's Representative shall appoint as Prime Minister a person who was a member of the Parliament immediately before that dissolution and who in the opinion of the Queen's Representative, acting in his discretion, is likely to command the confidence of a majority of the persons who were members of the Parliament immediately before that dissolution:

Provided that where the Parliament has been dissolved pursuant to subclause (2) of Article 37 hereof, the Queen's Representative shall appoint as Prime Minister a person who was a member of the Parliament immediately before that dissolution and who in the opinion of the Queen's Representative, acting in his discretion, is capable of performing the functions of the Prime Minister.

14. Duration of office of members of Cabinet

(1) The appointment of the Prime Minister who is in office immediately before the date of the holding of a general election of the Parliament may be terminated by the Queen's Representative, acting in his discretion, after the date of the holding of that election and before the date of the commencement of the first session of the Parliament following that election.

(2) The appointment of the Prime Minister who is in office at the commencement of the first session of the Parliament following a general election thereof shall be terminated by the Queen's Representative on the seventh day of that session if the Prime Minister has not sooner resigned.

(3) The appointment of the Prime Minister shall also be terminated by the Queen's Representative:

(a) If the Prime Minister ceases to be a member of the Parliament for any reason other than the dissolution of the Parliament; or

(b) If the 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 a motion or after that defeat, the Prime Minister so requests, the Queen's Representative, acting in his discretion, may dissolve the Parliament instead of terminating the appointment of the Prime Minister; or

(c) If the Prime Minister resigns his office by writing under his hand delivered to the Queen's Representative; or

(d) If the Prime Minister is absent from the Cook Islands, otherwise than on official business, for a period of more than 3 months without written authority given by the Queen's Representative, acting in his discretion."

The questions asked of the Court are:

(1) Is the Queen's Representative required by Article 14(2) to terminate the appointment of the Prime Minister, the Hon. G.A. Henry, within 7 days as therein prescribed, if the Prime Minister has not earlier resigned?

(2) If the answer to Question (1) is "Yes", then for the purposes of the appointment contemplated by Article 13(2)(a), is a vote required to be taken in Parliament expressing confidence in the Prime Minister?

(3) If the answer to Question (2) is "Yes", is the majority to be fixed by -

(a) the majority of the members present (Article 34(2));

(b) the majority of members elected;

(c) or the majority of the total membership including vacancies?

(4) In the event of a tied vote of confidence does the "person presiding" (Article 34(3)) have a casting vote?

The facts in brief

The questions arose following the General Election held on 30th March 1983. At that election, the Cook Islands Party secured thirteen of the twenty four seats in the Parliament and the Democratic Party the remaining eleven. (The election of the successful candidate for one of those eleven has since been declared void. The by-election is scheduled for 19th August 1983.) The Hon. Sir Thomas Davis, the Prime Minister from 1978 and the Leader of the Democratic Party, tendered his resignation to the Queen's Representative on 11th April 1983 pursuant to article 14(3)(c). On the same day, the Hon. Mr. G.A. Henry, the Leader of the Cook Islands Party, was appointed Prime Minister by the Queen's Representative acting under article 13(2)(b). The other members of a new Cabinet were sworn in on the following day. The other members of the previous Cabinet had lost their Ministerial offices when the former Prime Minister lost his: article 14(4)(a).

The first session of the new Parliament following the election was due to begin on 24th June 1983. In Mr. Ingram's submission the Queen's Representative is required by Article 14(2) to terminate the appointment of the Hon. Mr. Henry as "the Prime Minister who is in office at the commencement of the first session of the Parliament following a general election thereof... on the seventh day of that session if the Prime Minister has not sooner resigned". It would then be for the Queen's Representative, acting under Article 13(2)(a), to appoint as Prime Minister "a member of the Parliament who commands the confidence of a majority of the members of the Parliament". On Mr. Ingram's argument, that appointment could be made only on the basis of a Parliamentary vote of confidence in the member proposed as Prime Minister. That is to say, both questions (1) and (2) should be answered "Yes". On the other side, Mr. Mathieson, for Mr. Henry, argued that Mr. Henry, as the leader of the party which at the general election had won a majority of the seats in the Parliament and as the person newly appointed as Prime Minister by the Queen's Representative under Article 13(2)(b), should not be obliged to go through these two steps. He submits that the first question should therefore be answered "No". The second question would not arise, but, if it did, it should also be answered "No". (Mr. Ingram and Mr. Mathieson agreed on the answers to questions (3) and (4). We consider them later.)

It will be noted that Article 14(2) referred to above requires that not later than the seventh day of the first Parliamentary session following a general election

Either - The office of the Prime Minister is terminated by the Queen's Representative;

Or - The Prime Minister resigns.

Counsel informed us that the first Parliamentary session commenced on the 24th June 1983; was for one day only; and Parliament adjourned to recommence its sittings on the 28th July 1983.

This opinion is being delivered by the Chief Justice on the day he returns to Rarotonga, viz. 29th July. However, because the Parliamentary session resumed on the 28th July, the day before, the remaining six days of the seven day period specified in article 40(2) run from the 28th July and the seventh day will be Tuesday, the 2nd August 1983.

The main constitutional provisions

The constitution contains eight parts. Relevant here are the first, on the Government of the Cook Islands, the second, on the Executive Government, and the third, on the Legislative Government. The most significant articles fall within the second part. Article 12 vests the executive authority of the Cook Islands in Her Majesty the Queen in right of New Zealand and provides that it may be exercised by the Queen's Representative, either directly or through officers subordinate to him. In general, pursuant to article 5, the Queen's Representative acts on the advice of the Cabinet, the Prime Minister, or the appropriate Minister. Article 13(1) provides for the appointment of a Cabinet comprising the Prime Minister, who presides, and other Ministers. It has the general direction and control of the executive and is collectively responsible to the Parliament. That parliamentary character of the Cabinet is emphasised in a number of ways, one of them being that only Members of Parliament can hold Ministerial office (Articles 13(2), 13(3), 14(3)(a) and 14(4)(c)).

We have already indicated that the two provisions principally in issue here concern the power of appointment of the Prime Minister in Article 13(2)(a) and the power of termination of the appointment in Article 14(2). They also indicate a central position for members of Parliament and their opinion in the Prime Minister's appointment and tenure. That emphasis is to be seen as well in the other paragraphs of Article 13(2), and in Article 14(3)(b) (relating to lack of confidence) and Article 37(2) and (3) (concerning dissolution).

In a broader sense, the system of a Cabinet chosen from and responsible to Parliament is based on the so called Westminster model. But, as we shall see later, there are dangers in assuming that British or New Zealand or other precedents and conventions are automatically applicable. Indeed one recent writer has argued that a South Pacific model differing from the Westminster system and those exported to Asia and Africa, has developed (Greg Fry, "Succession of Government in the Post Colonial States of the South Pacific: new Support for Constitutionalism?" (1983) 18 Politics (Australian Political Studies Association) 48.

Question (2) is concerned with the appointment of the Prime Minister (Article 13) and Question (1) with the duration of that appointment once it has been made (Article 14). There is, we think, some advantage in keeping to the chronological order and that in the constitution. Accordingly we consider question (2) first.

Question (2): the appointment

Article 13(2) provides for the appointment of the Prime Minister at three different periods of time: (a) when Parliament is in session (the specific situation to which question (2) is addressed), (b) when Parliament is not in session, and (c) after Parliament has been dissolved.

In all three cases, there are some common features: the Queen's Representative makes the appointment; the person appointed must be a member of Parliament (or in case (c) a member of the Parliament which has been dissolved); and the criterion for appointment (with an exception in the proviso to paragraph (c) which is not relevant here) turns on the person appointed commanding the confidence of a majority of the members of Parliament (or in case (c) the members of the dissolved Parliament). The statement of that final criterion varies in significant ways between paragraph (a), on the one hand, and paragraphs (b) and (c), on the other, and these must be carefully noted. We return to that point after considering the precise words of paragraph (a).

Under Article 13(2)(a), the Queen's Representative shall appoint as Prime Minister a member of Parliament:

"who commands the confidence of a majority of the members of the Parliament."

On their face these words appear to refer to a situation of fact and not to require any exercise of judgment or discretion by the Queen's Representative. Nor do they appear to leave any room for advice; in any event the general rule in Article 5 would not apply since there is no Prime Minister at the moment of a new appointment to that office. It is a person who actually commands that confidence who shall be appointed and not someone who the Queen's Representative judges or is advised is likely to. That actual command would be evidenced by a vote of confidence in the candidate or some other unequivocal act of the legislature endorsing the candidate.

This plain reading is enhanced by the formulations used for the making of appointments at the other two periods of time, that is when the Parliament is not in session or is dissolved. In the nature of things there can be no contemporaneous Parliamentary approval of the Prime Minister appointed at those times. This fact is evidenced by three differences in the wording: at those times the Queen's Representative shall appoint a member who:

(1) in the opinion of the Queen's Representative;

(2) acting in his discretion;

(3) is likely to

command the confidence of a majority of the members of Parliament. These phrases and the timing clearly indicate that the Queen's Representative in these cases will have to make his own best estimate. The party situation may make his task simple. If it does not, he will have to draw on his own good sense and political sensitivity and that of the other main actors (see Adegbenro v Akintola [1963] AC 614, 628, discussed below). There can however be no guarantee that his judgment will turn out to be the correct one, and, even if correct to begin with, alignments may change before Parliament first meets. In either case, indeed in any case, should not Parliament be given the opportunity and have the responsibility to resolve any doubt? We can explain the wording of these paragraphs in no other way. The carefully drawn differences between paragraphs (b) and (c) on the one side and paragraph (a) on the other must be seen as emphasising that when Parliament is in session it, in reality, and not the Queen's Representative, appoints the Prime Minister if there is a vacancy. We shall, in considering the provisions about the duration and termination of appointment, see that they too provide further support for this Parliamentary role in respect of the tenure in office of the Prime Minister.

Mr. Mathieson pressed on us the view that the constitution belonged to the Westminster family and Article 13 should be interpreted accordingly. (In that context he mentioned Attorney General of Fiji v Director of Public Prosecutions [1983] 2 WLR 275, 277, in which the Privy Council referred to the fact that the Fijian constitution was framed on the "Westminster Model"). He argued that the Westminster system simply does not know a vote of confidence in a Prime Minister alone. The votes in that system relate to the Cabinet or Government. It is of course the case that the constitution bears many similarities to those of the Westminster system and that Prime Ministers in Britain and New Zealand, to take but two of that family, can be and are appointed during sessions of Parliament without any formal parliamentary endorsement. What significance should be given to that power and practice?

Lord Radcliffe, in delivering judgment in the Privy Council and rejecting a similar argument in a Nigerian case, provides, we think, the correct general answer to that argument. He agreed that there were similarities between the Nigerian and United Kingdom constitutional systems. He continued as follows:

"But, accepting that, it must be remembered that, as Lord Bryce once said, the British Constitution 'works by a body of understandings which no writer can formulate'; whereas the Constitution of Western Nigeria is now contained in a written instrument in which it has been sought to formulate with precision the powers and duties of the various agencies that it holds in balance. That instrument now stands in its own right; and, while it may well be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced...., it is in the end the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of this Constitution." (Adegbenro v Akintola [1963] AC 614, 631-632.)

In that case the Privy Council held that the Governor of Western Nigeria had the power to dismiss the Premier without there having to be a vote of the legislature. Mr. Mathieson sought support from that decision. He placed particular stress on the facts that the power of appointment there was in parallel terms to the power of dismissal and that the Privy Council noted that:

"No one has suggested in the course of argument that the Governor exercising a power of selection is under any legal restriction as to the persons he may consult or the material to which he may turn in aid of his decision." [1963] AC at 632.

We do not find this argument persuasive. First of all the powers in that case (of appointment and dismissal) were single powers exercisable at all times, including periods when the legislature was not in session or was dissolved. By contrast the draftsmen of the Cook Islands Constitution have carefully distinguished between the different periods, and we, of course, are concerned with a power exercisable only when the legislature is in session. Secondly, the Privy Council gave central importance to the wording: the Governor could act only when "it appears to him" that the Premier no longer commanded the support of a majority. This wording parallels the subjective and discretionary language in paragraphs (b) and (c) of Article 13(2) and is to be distinguished from the objective wording in paragraph (a) which is our concern. By those words, said Lord Radcliffe:

"the judgment as to the support enjoyed by a Premier is left to the Governor's own assessment and there is no limitation as to the material on which he is to base his judgment or to the contacts to which he may resort for the purpose. There would have been no difficulty at all in so limiting him if it had been intended to do so." [1963] AC at 629.

Such a limitation was indeed seen in a Malaysian case decided three years later. The relevant constitutional provision there provided that:

"If the Chief Minister ceases to command the confidence of a majority of the Members of the Council Negri (Parliament), then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the Members of the Supreme Council (Cabinet)."

The Malaysian Court held that the Governor had no power to dismiss the Chief Minister without an adverse vote in the Parliament. The Adegbenro case was distinguished, inter alia, on the ground that in that case the Governor had express power to assess the situation "as it appears to him" (Stephen Kalong Ningkan v Tun Abang Haji Openg (1966) 2 MLJ 187, 193, as noted in (1966) 8 Malaya LR 283).

To recapitulate, the Nigerian case (with the support of the Malaysian one) stresses that we must give primary attention to the provisions of the constitution. More specifically it supports the view that we draw from the absence in paragraph (a) of Article 13(2) of any reference to the opinion, discretion, or estimate of the Queen's Representative, that under the Constitution it is in reality Parliament that selects the Prime Minister.

Question (2) is framed in terms of "a vote of confidence" in the candidate. The parliamentary decision might, however, not take exactly that form. Rather it might, following Article 13(2)(a), state that the named person commands the confidence of the majority of the members of the Parliament. Article 36(1) also suggests some caution in the formulation of the answer. While our answer to the question is generally affirmative it accordingly does not take the exact form presented.

Questions (3) and (4): the vote

These questions relate to the method for the adoption of the vote on candidates for the office of Prime Minister. It is accordingly convenient to consider them now. Mr. Mathieson and Mr. Ingram agreed that the answers to the questions were provided by Article 34(2) and (3) of the Constitution and agreed on those answers.

Article 34(2) provides that every question before Parliament be decided by a majority of the votes of the members present. Subject to the next answer, that applies to the vote under Article 13(2)(a).

Article 34(3) provides that the person presiding, although not having a deliberative vote, does have a casting vote in the case of an equality of votes. Again that provision is applicable to a vote under Article 13(2)(a).

We were advised by counsel at the hearing that Mrs. Storey, who is not a member of Parliament, has been appointed Speaker in accordance with Article 31; and that Mr. Strickland, who is an elected member of Parliament, has been appointed the Deputy Speaker in accordance with Article 33.

Now Article 13(2)(a) requires the Queen's Representative to appoint as Prime Minister a member "who commands the confidence of a majority of the members of the Parliament". It is clear that if the person presiding is a "member of the Parliament", then upon an equality of votes the person would have a casting vote (Article 34(3)) but would not have had a deliberative vote.

It is, however, just as clear that if the person presiding is not a "member of Parliament" he or she has no deliberative or casting vote.

Question (1): the duration of office

Sub-clauses (1), (2) and (3) of Article 14 contain the principal provisions relating to the duration of office of the Prime Minister. The first relates only to the period between a general election and the first session of a new Parliament. The Queen's Representative has a discretion to terminate the appointment of the Prime Minister who was in office at the time of the election ("the holdover Prime Minister"). The draftsmen have not stated grounds for the exercise of this power. The second provision applies on the seventh day of that first session of the new Parliament. It is mandatory and requires the Queen's Representative to terminate the appointment if the Prime Minister to which it applies (that application being the principal matter of dispute in this case) has not earlier resigned. The third sub clause, with one exception, applies at all times and also provides for mandatory termination in the cases provided. The exception relates to the case of a Parliamentary vote of no confidence in the Cabinet which can, of course, happen only when Parliament is in session; furthermore, the Queen's Representative has a discretion in that case to dissolve the Parliament instead of terminating the appointment.

It is convenient to set out Article 14(2) again:

"The appointment of the Prime Minister who is in office at the commencement of the first session of the Parliament following a general election thereof shall be terminated by the Queen's Representative on the seventh day of that session if the Prime Minister has not sooner resigned."

The difference between Mr. Ingram and Mr. Mathieson in brief is that Mr. Ingram says that the provision is clear beyond any doubt - it applies to each and every Prime Minister at the beginning of each new Parliament, while Mr. Mathieson limits the provision to the hold-over Prime Minister. We will consider his arguments for so limiting the provision later. For the moment we consider the consequences of his agreement with Mr. Ingram that the hold-over Prime Minister is subject to the provision. Take three broad situations:-

A. The government in office is clearly successful at the polls.

(i) The hold-over Prime Minister is subject to Article 14(2). (We assume, of course, that the Queen's Representative decides not to exercise his power under Article 14(1)).

(ii) But if after the election and before the Parliament meets, he is replaced as leader of the government party and the Queen's Representative appoints the new leader as Prime Minister under Article 13(2)(b) that Prime Minister, in Mr. Mathieson's view, would not be subject to Article 14(2).

B. The opposition party is clearly successful at the polls.

The leader of that party is appointed Prime Minister under Article 13(2)(b) and is not, according to Mr. Mathieson, subject to Article 14(2).

C. The parliamentary position is uncertain because, for instance, no party has a majority or the parties are not clearly established.

(i) The Queen's Representative might decide not to make any change. In that case the hold-over Prime Minister will be subject to Article 14(2).

(ii) But if he does decide to make a change (in a situation where the judgment could be made either way), then the new Prime Minister is not, in Mr. Matheson's view, subject to Article 14(2).

On the face of it, no compelling reason suggests that the hold-over Prime Minister (cases A(i) and C(i)) should be dealt with differently from (and adversely to) the new Prime Minister (A(ii), B and C(ii)). In cases A and B the electorate has spoken clearly, the leader's position within the party would not in general be significantly different in the hold-over and new situations, and the Queen's Representative has made the same decision by reference to the same criterion in each case (including the decision not to act in A(i)). (Indeed it might be thought that if a distinction is to be made it should favour the successful hold-over Prime Minister: he has proved himself not only at the most recent election but in the preceding Parliament and possibly at earlier elections). So far as case C is concerned, the applicability of Article 14(2) would depend on whether the Queen's Representative had been willing in a difficult and confused situation to make a change or not: that appears to be all too adventitious an element. That would also be inconsistent with an overall purpose to confine the power of the Queen's Representative and emphasise that of the Parliament. We have already partly noted that purpose in answering question (2) and will consider it further.

Article 14(2): the plain meaning in context

Before we do that we should return to the language of Article 14(2). On its face it is not confined. It is general in its wording and effect. It applies, apparently without restriction, to each and every Prime Minister who is in office at the commencement of a first session of the new Parliament. Can it be denied on the plain meaning of the words that Mr. Henry is "the Prime Minister who is in office" at the beginning of the new session?

Mr. Mathieson did deny that by reference to (1) the context, (2) the absurdity and inconvenience of the result, and the purpose of Article 14(2), and (3) the broader character of the Constitution. We consider those arguments in turn.

The context on which he drew was that provided by Article 14(1). That provision he said, quite rightly, was concerned only with the hold-over Prime Minister, and, he continued, it was that Prime Minister and only that Prime Minister who was referred to in Article 14(2). These two provisions were to be seen as constituting a sub group and the second in effect as a proviso to the first. We were referred to the important speech of Viscount Simonds in Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436, 461, 463:

"words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense,...as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.

... no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that any part of it is clear and unambiguous."

(We note that the result in that case does not support Mr. Mathieson: the House of Lords refused to read down the general language of the principal provision by reference to the context, in that case mainly the preamble.)

As we shall indicate later on we think that a broad contextual approach is even more appropriate in the case of constitutions. But where does it lead us to here?

In the first place the very wording of the three principal provisions of Article 14 does not appear to allow the interpretation proposed:

(1) The appointment of the Prime Minister who is (was) in office immediately before the date of the holding of a general election....

(2) The appointment of the Prime Minister who is in office at the commencement of the first session....

(3) The appointment of the Prime Minister...

As noted at the beginning of this part of this judgment sub clauses (1) and (2) appear to relate to two precise consecutive periods of time following a general election while sub clause (3) has a more comprehensive temporal scope. In sub clauses (2) and (3) the reference appears to be to the Prime Minister in office at the time whatever the circumstances of his original appointment. (He will of course have been appointed under one of the paragraphs of Article 13(2).) Mr. Mathieson argued that the placing of sub-clause (2) after sub-clause (1) was not fortuitous and indicated that the second was to be read as subject to first. We agree that it was not fortuitous but think on the contrary that the placing is chronological.

Secondly, the limitation of sub-clause (1) to the hold-over Prime Minister arises from the nature of the power conferred in that provision. The Parliament will usually meet within a short period of the election, generally as little as 90 days (Article 29), and the draftsmen obviously did not contemplate the Queen's Representative having any occasion to terminate within that period the appointment of a Prime Minister whom he has appointed in that time under the criterion set out in Article 13(2)(b). No such consideration of apparent contradiction applies to sub-clause (2) which involves no exercise of judgment by the Queen's Representative. Moreover, the answer we have given to question (2) means that he does not have to exercise any judgment when, following the action taken under Article 14(2), the Parliament and he act under Article 13(2). Accordingly there is no contradiction at that stage either.

A more general reason for rejecting this particular argument is that we consider that Mr. Mathieson's context of Article 14(1) alone is too limiting. We will return towards the end of this opinion to that wider context and the purposes we see arising from it. They confirm the plain, general interpretation of Article 14(2). It is that wider context along with the temporal points made in the "first" and "second" paragraphs above that leads us to reject the argument that was based on Director of Public Prosecutions v Schildkamp [1971] AC 1. In that case several indications in the context and history of the statute and its consolidating character required, in the view of the majority, that the apparently general language should be read narrowly.

The avoidance of absurdity and manifest inconvenience: a purposive interpretation

Mr. Mathieson argued that even if the plain meaning were against him, the Court should, if possible, by reference to the ambiguity of the language, adopt an interpretation which avoids a clear and gross balance of anomaly which the draftsmen would not have been prepared to accept. He submitted that if Article 14(2) were not limited to the hold-over Prime Minister there would be such an anomaly in that the Prime Minister would be appointed for only a limited period and could not lead as effectively as he might; he would be something of a lame duck unable to plan properly a concerted approach to a legislative programme; and the proper functioning of the government would be impeded. But, the argument continued, the constitution demonstrates that he is the key figure in the executive government, the chairman of the Cabinet (Article 13(1)) whose members lose their office automatically on his losing office (Article 14(4)). It would, moreover, be absurd for the Queen's Representative to go through the exercise of judgment provided for in Article 13(2)(b) if the Prime Minister could survive at latest only until the seventh day of the first session. The Solicitor-General also made the point that it was contrary to commonsense that the opposition should have any say in who should be the leader of the government party. That is a matter for that party.

We can see no ambiguity in the language, but, even if we could, we do not see a gross balance of anomaly. This is so first because of the position of the hold-over Prime Minister: he, all agree, is subject to such disadvantages as there are which result from his temporary status in the period after the election and the beginning of the new Parliament. It is of some significance, we think, that the hold-over Prime Minister did resign and was reappointed early in the first session following the 1968 and 1972 elections. (We obtained this information from the Crown Law Office following the hearing: counsel were given the opportunity to make submissions on it and Mr. Mathieson did so.) The second is that the temporary appointee who leads the majority party or who on other grounds (on which the Queen's Representative has acted under Article 12(2)(b)) believes that he controls the Parliament will in general be able to plan with confidence: he will expect to be confirmed in office under Article 13(2)(a) when Parliament does meet. Our third reason goes to what we see as an overall purpose of Article 14(2) which we consider under the next heading along with the Solicitor-General's point about the effect of the introduction of the party system.

As we move to that, we would like to stress, even if it is not necessary to do so, that the interpretation powers of the courts in the face of arguments about absurdity, anomaly and purpose are not unlimited. Lord Simon of Glaisdale, having referred to the "golden rule" and the purposive approach (the rule in Heydon's case [1584] EngR 9; (1584) 3 Co Rep 7a; (see also section 5(j) of the Acts Interpretation Act 1924 which is part of the law of the Cook Islands), provides the clearest statement of those limits:

"But it is essential to bear in mind what the court is doing. It is not declaring 'Parliament has said X: but it obviously meant Y; so we will take Y as the effect of the statute'. Nor is it declaring 'Parliament has said X, having situation A in mind: but if Parliament had had our own forensic situation, B, in mind, the legislative objective indicates that it would have said Y; so we will take Y as the effect of the statute as regards B.' What the court is declaring is 'Parliament has used words which are capable of meaning either X or Y: although X may be the primary, natural and ordinary meaning of the words, the purpose of the provision shows that the secondary sense, Y, should be given to the words.' So too when X produces injustice, absurdity, anomaly or contradiction. The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said, rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct these should coincide. So if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory, objective, anomaly, etc.) which throw light on what the draftsman meant to say." (Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231, 236, HL)

Can it be said that the words of Article 14(2) are capable of more than one meaning? There can be only one Prime Minister, the person appointed under Article 13(2). Sir Thomas Davis had been that person. Consequent upon the general election he resigned. There was no Prime Minister until later on the same day when Mr. Henry was appointed by the Queen's Representative under Article 13(2)(b). If on the day the session of Parliament commenced one had asked "Do we have a Prime Minister in office?" the answer must have been "Yes". "Who is he?" The answer must have been "Mr. Geoffrey Henry". Ambiguity involves uncertainty or doubt. At any given moment, there can be no uncertainty or doubt as to who is the Prime Minister.

Constitutional Interpretation

Mr. Mathieson argued that while proper attention should be given to the language of Article 14(2) the Court should give full weight to the scheme of the constitution so as to avoid a blind, literal and legalistic interpretation. On that premise the provision should be interpreted so as to lay down a sensible and workable rule for the conditions of 1983 and not for those of 1964 or 1965. He quoted the Privy Council in a Canadian appeal:

"To such an organic statute (the British North America Act 1867, the Canadian Constitution) the flexible interpretation must be given which changing circumstances require...." Attorney General for Ontario v Attorney General for Canada [1947] AC 127, 154, PC.

He put this more specific argument in the context of recent general discussions of approaches to the interpretation of constitutions. The leading such discussion is that of Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319, PC. He speaks of a constitutional instrument as sui generis; he calls (in a human rights context) for a generous interpretation avoiding what has been called "the austerity of tabulated legalism"; and for an approach with an open mind. Primary attention should, we think, still be given to the words used but any tendency to interpret them in a mechanical or pedantic way should be curbed.

It was common ground that when the early steps towards the Constitution were being taken in 1963 there was no party system in the Cook Islands. We will refer later to a document which indicates that the relevant provisions of the Constitution were indeed drafted with reference to that fact. Now there is a party system. Should that changing circumstance affect the interpretation of the Constitution? The Privy Council in 1936 said the following in an Australian appeal:

"The words used (in a Constitution) are necessarily general and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning." James v Commonwealth [1936] HCA 32; (1936) 55 CLR 1, 43, PC.

Our case is not, however, one involving general language which can be interpreted to accommodate the new situation. Rather Article 14(2) would have to be adapted to exclude from its scope the leader of a party which has a majority of members in Parliament. That is not interpretation but amendment. A similar adaptation might equally have to be made to Article 13(2)(a) by restricting the members entitled to vote. It would also be illegitimate.

It does not follow that adaptations cannot be made to meet changing situations. The constitution is not cast in stone. As this Court said earlier this year "A Constitution as a living reality governing the members of the society and the institutions of the society to which it relates must be capable of adaptation to meet changing circumstances. Article 41 provides the machinery for that purpose". Henry v Attorney General. That machinery has in fact been used eleven times since 1965 when the constitution came into effect with the Cook Islands Party already established with a majority in the Parliament, and about to provide as the first Premier its leader, and the Articles in issue in this case have themselves been amended four times, in 1965, 1970, 1981 and 1982. We noted earlier that the hold-over Prime Minister, the leader of the majority party, complied with the requirement of Article 14(2) on at least two occasions (in 1968 and 1972) and yet no change to the provisions to take account of the party system was promoted.

There are three broad features of the Constitutional provisions which we are considering which we should bring together at this point. The first relates back to an aspect of the Nigerian case, Adegbenro v Akintola, discussed in the answer to question (2). It is that the constitutional draftsmen have attempted to spell out in some detail the powers, principles and procedures which in other systems, such as those of New Zealand and the United Kingdom, are left to practice. The process of explication itself introduces changes from the "Westminster" system this litigation being an instance.

The process is also likely to involve some deliberate change in the substantive rules. It should not be assumed that the traditional models have been carried over without change. As the Privy Council warned we should guard against forcing the new constitutional language into a traditional pattern if it does not fit. This relates to the second broad feature: the powers of the Queen's Representative are narrower in several respects than those of the Queen or her Governors-General in at least some now codified systems. Thus, however it is interpreted, Article 14(2) incorporates a rule which is not found in New Zealand or the United Kingdom. So does Article 14(4) with the automatic termination of Ministers' appointments on the Prime Minister losing office. The interpretation which we have given to Article 13(2)(a) also makes this point. As the powers of the Queen's Representative are narrower, so the powers of the Parliament are wide.

This is the third broad feature of the Constitution: according to the Constitution it is the Parliament that in reality chooses the Prime Minister. The power of the Queen's Representative is a temporary and limited one. If he makes an appointment after the election and before the Parliament meets or if he leaves the hold-over Prime Minister in office, Parliament must confirm that decision or in effect choose a new Prime Minister. (If it cannot, the matter goes back to the electorate). If Parliament is sitting when an appointment is to be made it in effect makes it. And if the Queen's Representative makes an appointment after the Parliament is dissolved then the electorate will soon have the opportunity to rule, and the cycle begins again.

There is a relevant aspect of the history of the preparation of the constitution to which it is convenient to refer at this stage. We refer to this feature only to confirm the view of the meaning of the text that we have already reached independently of it. We note that the Western Samoan Court of Appeal recently made similar use of the drafting history of the constitution of that country in Attorney General v Saipa'ia Olomalu, unreported, 26th August, 1982, Western Samoa Court of Appeal. In A Report to the Members of the Legislative Assembly of the Cook Islands on Constitutional Development presented in September 1963, Professor C.C. Aikman, Professor J.W. Davidson and Mr. J.B. Wright, dealt with the Selection of the Premier and Other Ministers in the following way:

"The absence of a party system at present in the Cook Islands raises a problem in regard to the selection of the Premier ... and of other Ministers. We believe that the solution adopted in Western Samoa, in similar circumstances, is the most suitable one. After each general election, and on any other occasion in which the position of Premier might have become vacant (for example, through resignation or death), the Assembly would consider which of its members should be nominated for the position. If more than one member were nominated a ballot (or succession of ballots) would be held to ascertain the wishes of the majority of members (para. 14)."

The summary of recommendations, if anything is even clearer:

"The Premier should be elected by the Assembly..." (p. 31, para. 3).

We take Mr. Mathieson's point that there are many steps between the making of such proposals and the final adoption of the constitution. In this case however the Cook Islands Legislative Assembly adopted this proposal, using the wording in the summary and in our view the texts of Articles 13 and 14 are completely consistent with it. This material as a whole provides a clear answer to this question whether the general election effectively decides who shall be the Prime Minister or whether it is only the first of two steps, the second to be taken in Parliament. The answer, in law, is that it is only the first step of two. If the party situation is clear it will of course be the decisive one in fact.

The extract just quoted and counsel in argument referred to related provisions in other constitutions. They help confirm that Parliament has the central role in selecting the Prime Minister. Most significant of them is that which offered the model for the Cook Islands Constitution - Articles 32(2)(a) and 33(1) of the Western Samoan Constitution are in very close terms to Articles 13(2)(a) and 14(2):

"The Head of State shall appoint as Prime Minister ... a Member of Parliament who commands the confidence of a majority of the Members of Parliament.

......

The appointment of the Prime Minister who is in office at the commencement of the first session of the Legislative Assembly following a dissolution thereof shall be terminated by the Head of State on the seventh day of that session if the Prime Minister has not sooner resigned."

The Constitutional Adviser to the Samoan Legislative Assembly has recorded that the provisions in the draft 1959 bill which is the direct predecessor to the first of the above clauses provided for the appointment as Prime Minister of a Member "who is likely to command the confidence ...". The (Samoan) Working Committee on Self Government requested that this be changed to read "who commands the confidence ...". He notes "this amendment, which was accepted by New Zealand, was intended to ensure that no appointment would be made until the Legislative Assembly had considered the matter and submitted a nomination" (J.W. Davidson, Samoa Mo Samoa (1967) 363 note; Professor Aikman was at this time the New Zealand Government's adviser on Samoan Constitutional development, and he and Professor Davidson with Mr. Wright of course prepared the Cook Islands report quoted above. The 1959 provision was enacted as the Samoa Amendment Act 1959, section 13). The Assembly twice nominated a Prime Minister under the 1959 Act, following its enactment and in 1961 after the general election. "Samoa Comes of Age: The Development of Independence" (September 1961) Round Table 347, 357.

More recent Pacific Island constitutions similarly and more strongly emphasise the role of Parliament in the election of the Prime Minister or the President: Nauru, Constitution 1968, Articles 16 and 24, Papua New Guinea, Constitution 1975, sections 142 and 145, Tuvalu, Constitution, (U.K.) S.I. 1975, No. 3781, sections 32 and 33 and Annex 1, Solomon Islands, Constitution, (U.K.) S.I. 1978, No. 783, sections 33 and 34 and Schedule 1, Kiribati, Constitution, (U.K.) S.I. 1979, No. 719, sections 30 and 38, and Vanuatu, Constitution 1980, Article 39 and schedule 2; compare section 73(2) and the provisos to section 70(1) of the Constitution of Fiji, 1970, (U.K.) S.I. No. 6630, but note the constraints on the power of the Governor-General; section 74(1) and (2). These constitutions are all later in date than that of the Cook Islands. Their relevance is the less on that account. But we do not think that they should be totally ignored. They suggest that there is a broad acceptance amongst Pacific Constitution makers, running back to the first modern constitution (that of Western Samoa) and forward through the Cook Islands one, that Parliament is to have the central role in selecting the Prime Minister.

We were also referred to a passage in Professor Stanley de Smith's book, The New Commonwealth and its Constitutions (1965), p. 95, in which he mentions as one departure from British practices that:

"under several of the most recent constitutions a Prime Minister must always vacate his office after the results of a General Election are known; even although he has won a majority at the polls he still has to be reappointed by the Governor-General."

This remark is, of course, a generalisation and cannot be taken as of specific import, for each constitution demands its own interpretation.

To summarise, we conclude that the meaning of Article 14(2) is plain, that that meaning is enhanced rather than restrained by the context and purpose of the provisions, that while the provision may not always be apt now that a party system is established that fact cannot be the basis for a different interpretation, and that the broader constitutional context and history also supports the plain meaning. Article 14(2) applies to all Prime Ministers including a newly appointed Prime Minister. It applies to the Hon. Mr. G.A. Henry.

The Court's opinion

Accordingly the court's opinion on the questions asked is as follows:

QUESTION (1): Is the Queen's Representative required by Article 14(2) to terminate the appointment of the Prime Minister, the Hon. G.A. Henry, within 7 days as therein prescribed if the Prime Minister has not earlier resigned?

ANSWER: Yes.

QUESTION (2): If the answer to Question (1) is "Yes", then for the purposes of the appointment contemplated by Article 13(2) (a), is a vote required to be taken in Parliament expressing confidence in the Prime Minister?

ANSWER: Yes, the vote must express majority support for a member given by members only.

QUESTION (3): If the answer to Question (2) is "Yes", is the majority to be fixed by -

(a) the majority of the members present, (article 34(2));

(b) the majority of members elected;

(c) or the majority of the total membership including vacancies?

ANSWER: (a) The majority of the members present.

QUESTION (4): In the event of a tied vote of confidence does the "person presiding" (article 34(3)), have a casting vote?

ANSWER: Yes, if the person presiding is a member.

No, if the person presiding is not a member.

In either case such person does not have a deliberative vote.

The question of costs was mentioned by Mr. Ingram. He said that his travelling and accommodation expenses were being met by the Government. In view of his status as Leader of the Opposition this appearance was in pursuance of his duty in that regard and we do not award counsel's costs.

Solicitors:
Hogg, Gillespie, Carter & Oakley, Wellington, for Mr. Henry;
Clarke, Ingram & Co., Rarotonga, for Mr. Ingram;
Crown Law Office, Avarua, for the Queen's Representative.