Goodwin v Attorney General - Judgment 3 [1994] CKCA 6; CA 02.1994 (10 March 1994)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT WELLINGTON
(CIVIL DIVISION)
C.A. 2/94

IN THE MATTER
of Section 3 of the Electoral Amendment Act No. 3 1993

AND

IN THE MATTER
of the Cook Islands Constitution Act 1964

AND

IN THE MATTER
of the Declaratory Judgments Act 1908
(as applied in the Cook Islands by the New Zealand Laws No. 2 Act 1979)

BETWEEN

FREDERICK GOODWIN
of Matavera, Rarotonga, Crown Servant
First Applicant

AND

THE COOK ISLANDS PUBLIC SERVICE ASSOCIATION
a society duty incorporated under Incorporated Societies Act 1908
and having its registered office at Rarotonga
Second Applicant

AND

THE ATTORNEY GENERAL OF THE COOK ISLANDS
Respondent

Coram: Quilliam J. (Presiding)
Prichard J.A.
Dillon J.A.

Counsel: Mr B.H. Giles and Mrs. S.R.A. Anderson for First and Second Applicants
Mr McFadzien, Solicitor General and Mr D.A. Williams Q.C. for Respondent

Date of Hearing: 18 February 1994
Date of Judgment: 10 March 1994

REASONS FOR JUDGMENT OF DILLON J.A.

This original application for a declaratory judgment was on the 14^th day of February 1994 (New Zealand time), by the consent of all parties, removed directly into this Court for a decision pursuant to the provisions of the Declaratory Judgments Act 1908 (as applied in the Cook Islands by the Now Zealand Laws No. 2 Act 1979).

The First Applicant, Frederick Goodwin, is presently the Secretary to the Public Service Commissioner in the Cook Islands Public Service. He wishes to nominate as a candidate in the Matavera Constituency in the forthcoming Parliamentary General Election to be held on 24 March 1994. However the Electoral Amendment Act 1993 requires that before nomination he must resign his position in the Crown Service in which he has served for some 32 years. He is prepared to resign his position if successful in the election. Such a decision would be in accordance with the provisions of the Electoral Act 1966 prior to that Act being amended in late 1993. However he is not willing to resign his position prior to the election as now required by the new Electoral Amendment Act 1993.

The Second Applicant is a society incorporated in the Cook Islands; having its registered office in Rarotonga; and having as its purpose the protection of the interests and welfare of all Crown servants in the Cook Islands.

The Solicitor General in acting for the Respondent to uphold the validity of the legislation which is now challenged by the First and Second Applicants as being invalid and contrary to the provisions or the Constitution of the Cook Islands.

THE COOK ISLANDS CONSTITUTIONAL ACT 1964

This Act initiated the independence and self-government of the Cook Islands. At the same time it provided the Cook Islands with its first written Constitution.

The nationality and residential qualifications of both electors and candidates, which is what this present application is all about, were set out in Article 28 of the original Constitution as follows:

"28. Nationality and residential qualifications of electors and candidates

(1) Without limiting the provisions of any law prescribing any additional qualifications, a person shall be qualified to be an elector for the election of members of the Legislative Assembly or to be a candidate at any such election, if, and only if,-

(a) He is a British subject; and

(b) He has been ordinarily resident in the Cook Islands throughout the period of 3 months immediately preceding his application for enrolment as an elector or, as the case may be, his nomination as a candidate, and has at some period resided continuously in the Cook Islands for not less than 12 months.

(2) For the purposes of this Article a person shall be deemed to be ordinarily resident in the Cook Islands if, and only if,-

(a) He is actually residing in the Cook Islands; or

(b) Having been actually resident in the Cook Islands with the intention of residing therein indefinitely, he is outside the Cook Islands but has, and has had ever since he left the Cook Islands, an intention to return and reside therein indefinitely:

Provided that any person who has been outside the Cook Islands continuously for any period of more than 3 years, otherwise than for the purpose of undergoing a course of education or of technical training or instruction during the whole or substantially the whole of that period, shall be deemed not to have been actually resident in the Cook Islands during that period with the intention of residing therein indefinitely."

Article 28 did not place any restriction or limitation on the issues that are required to be addressed in this present application.

THE CONSTITUTION AMENDMENT (NO. 9) ACT 1980-81

This amendment to the Constitution insofar as it affects the issues to be determined in this application are contained in Article 28B which states as follows:

"28B Qualification of candidates - (1) Notwithstanding anything in subclause (2) of this Article, a person shall not be qualified to be a candidate at an election of members of Parliament, if -

(a) He is not an elector duly enrolled pursuant to the provisions of an Act of Parliament; or

(b) He has been adjudicated bankrupt within the meaning of the bankruptcy laws in force in the Cook Islands (whether before or after the commencement of this Article), unless he has obtained an order of discharge; or

(c) He has been convicted (whether before or after the commencement of this Article) of any of the offences specified in Part I of the Second Schedule to this Constitution; or

(d) He has been convicted (whether before or after the commencement of this Article) of any of the offences specified in Part II of the Second Schedule to this Constitution, unless a period of 5 years has elapsed from the date of his conviction.

(2) Subject to subclause (1) of this Article,-

(a) Every person enrolled as an elector of any constituency shall be capable of being elected as a member for that constituency or for any other constituency;

(b) In the case of any by - election for any constituency, a person shall be capable of being elected as a member for that constituency if he was enrolled as an elector on the roll of any constituency at the preceding general election, and at the time of nomination still possesses the qualifications to be enrolled as an elector."

The Constitution of the Cook Islands therefore makes no distinction as to the qualification or disqualification of any group of electors and their rights to nominate as candidates at any Parliamentary election or by-election. In fact the Constitution specifically provides that "every person enrolled as an elector of any constituency shall be capable of being elected as a member for that constituency or for any other constituency." The only exceptions relate to a non elector; a bankrupt; or a person with certain convictions, as provided in Article 28B(1). Those exemptions have no relevance in the present case.

Standing alone therefore the Constitution permits Crown servants enrolled as electors to be nominated as a candidate for Parliament in a general election or in a by-election.

AMENDMENTS TO THE CONSTITUTION

The Cook Islands Constitution Act 1964 includes very specific and detailed provisions for any repeal of or amendment to the Constitution by Parliament. Article 41 provides as follows:

"41. Power of Legislative Assembly to repeal or amend this Constitution - (1) Subject to the provisions of subclause (2) of this Article, no Bill repealing or amending or modifying or extending this Constitution or any provision thereof or making any provision inconsistent with any provision of this Constitution shall be deemed to have been passed by the Assembly, unless -

(a) At both the final vote thereon and the vote preceding that final vote it receives the affirmative votes of not less than two-thirds of the total membership (including vacancies) of the Legislative Assembly; and

(b) There is an interval of not less than 90 days between the date on which that final vote was taken and the date on which the preceding vote was taken;

and no such Bill shall be presented to the High Commissioner for assent unless it is accompanied by a certificate under the hand of the Speaker to that effect.

(2) No Bill repealing or amending or modifying or extending any of the provisions of sections 2 to 6 of the Cook Islands Constitution Act 1964 or Article 2 of this Constitution or this Article or making any provision inconsistent with any of those provisions shall be submitted to the High Commissioner for his assent, unless-

(a) It has been passed by the Legislative Assembly in accordance with the provisions of subclause (1) of this Article; and

(b) It has been submitted to a poll conducted in a manner prescribed by law, of the persons who are entitled to vote as electors at a general election of members of the Legislative Assembly; and

(c) It has been supported by not less than two-thirds of the valid votes cast in such a poll; and

(d) It is accompanied by a certificate under the hand of the Speaker to that effect."

Parliament has exercised those powers on a number of occasions in the past for a variety of amendments that from time to time were considered necessary. In fact, since the original Cook Islands Constitution Act 1964 there have been no less than 16 Amendments to the Constitution all effected in the manner prescribed by Article 41.

ELECTORAL ACT 1966

The Electoral Act 1966 dealt specifically with the very issues which are required to be examined by this present application. I refer in particular to Section 6 which stated as follows:

"6. Qualification of members - (1) In addition to the nationality and residence provided for candidates for election by Article 28 of the Constitution, no person shall be capable of being elected as a member (a) unless he is an elector duly registered under Part IV hereof, and (b) unless he, if he is a bankrupt within the meaning of the bankruptcy laws in force in the Cook Islands, has obtained an order of discharge.

(2) Subject to the provisions of Article 28 of the Constitution and to the foregoing provisions of this section, every person registered as an elector of any constituency shall be capable of being elected as a member for that constituency or for any other constituency."

Some 15 years later the Constitution Amendment Act (No. 9) 1980-81 repealed S.6 of the Electoral Act 1966; and replaced S.6 with Article 28B(2)(a) of the Constitution. Consequently the qualification provisions previously enacted in S.6 of the Electoral Act 1966 were transposed directly into and became enshrined as Article 28B(2)(a) of the Constitution.

Accordingly the qualification provisions previously included in the Electoral Act 1966 have been transferred to and form part of the Constitution of the Cook Islands.

THE ELECTORAL AMENDMENT ACT 1993

It is this 1993 Amendment of the Electoral Act 1966 which this Court has been asked to consider, and in particular Section 3 which provides as follows:

"3. Public servants may become candidates or be elected - (1) The principal Act is amended by repealing section 6A and substituting the following section-

"6A. Crown servants not to become candidates - (1) No person who is a crown servant shall be capable of' being nominated as a candidate for election as a member of Parliament.

(2) A person who is a crown servant and who desires to be a candidate for election as a member of Parliament shall, before consenting to be nominated resign as a. crown servant and shall as from the date or resignation cease to be a crown servant.""

In summary therefore, Crown servants prior to the Electoral Amendment Act 1993 were permitted both by the Constitution and by S.6A of the Electoral Act 1966 to be candidates in a Parliamentary election. If a crown servant was elected as a member of Parliament then in accordance with S.613 of the Electoral Act 1966 he was "... deemed to have vacated his office as a public servant".

Now with the passing or the Electoral Amendment Act 1993 "a person who is a crown servant and who desires to be a candidate for election as a member of Parliament shall before consenting to be nominated resign as a crown servant and shall as from the date of resignation cease to be a crown servant".

The Applicants now challenge the validity of the Electoral Amendment Act 1993 which it is alleged is legislation inconsistent with the Constitution of the Cook Islands. It is further alleged that the procedural requirements for an amendment to the Constitution as provided for in Article 41 have been completely ignored. In other words it is claimed that Parliament by an amendment of the Electoral Act has in fact amended the Constitution - but in so doing has failed to comply with the strict procedures laid down for any such amendment by Article 41 or the Constitution.

THE CONSTITUTION AND THE LEGISLATION

Before considering the Electoral Amendment Act 1993 it is appropriate to establish the constitutional and legislative position of prospective Parliamentary candidates prior to the 1993 legislation.

Constitutionally, every elector in the Cook Islands who was not declared bankrupt or who didn't have certain specified criminal convictions could be nominated for election to Parliament - reference Article 28 and subsequently replaced by Article 28B of the Constitution.

Legislation specifically spelt out the procedure for public servants who are now called crown servants to be nominated for election to Parliament - reference S.6 and subsequently S.6A of the Electoral Act 1966.

The position of crown Servants therefore prior to 1993 was clearly defined by both the Constitution and the legislation - that is they were entitled to be nominated as candidates in a Parliamentary election. Now while the Constitutional guarantees have not changed or been amended in any way, the legislation has been very materially altered by the Electoral Amendment Act 1993.

This amending legislation immediately poses the question-

Since Article 28B of the Constitution which applies to all electors in the Cook Islands including Crown servants and has not been amended, can S.3 of the Electoral Amendment Act 1993 effectively change the law limited to a selected group of Cook Island electors only viz. crown servants?

This question throws into relief the importance of priority, i.e. of the constitution or of the legislation. It is fundamental that an Act of Parliament that is repugnant to the Constitution is not law. Consequently where there is conflict between the Constitution and the legislation, the Constitution is the supreme law.

It is submitted by the Applicants that the enactment of S.3 of the Electoral Amendment Act 1993 is in direct conflict with Articles 28B and more importantly Article 41 of the Constitution. The applicants further submit that issues of fundamental rights as set out in Article 64(1) (b - c - d - e and f) of the Constitution have been completely ignored and disregarded.

On the other hand the Respondent submits that S.3 of the Electoral Amendment Act 1993 is not a restriction on the qualification of candidates and consequently does not contravene in any way Article 28B of the Constitution. Further it is submitted by the Respondent, that as S.3 is an amendment to the Electoral Act only, Article 41 of the Constitution does not apply, and as a consequence fundamental rights have not been affected.

SUBMISSION BY RESPONDENT

Counsel for the Respondent conceded that Section 6A(1) was invalid because it contravened Article 28B(2)(a) of the Constitution; he maintained however that Section 6A(2) remained valid legislation.

It was submitted that S.6A(2) was not an amendment to the qualification requirements of Crown Servants wishing to nominate for election to Parliament; rather it was identified as a "resign to run" provision which Parliament was entitled to implement as a constitutionally legitimate and socially important objective especially if it resulted in increased efficiency and political neutrality of crown servants. Allied with that "resign to run" provision was the "equal protection" rationale which it was claimed, legitimated the amendment to the Electoral Act 1966; and at the same time provided justification for the implementation of such radical electoral changes by avoiding an amendment to the Constitution through the procedure laid down by Article 41.

There is ample constitutional authority to support the principles of "resign to rule" when applied to crown servants or their equivalent in comparable overseas jurisdictions. There is no need therefore to consider the appropriateness or otherwise of the intention behind S.6A(2). This was conceded by Counsel for the Applicants. The question is-

Can the "resign to run" principle upon which S.6A(2) is based be constitutionally legislated for by an amendment to the Electoral Act 1966; or must such a change be implemented by amending the constitution in the manner provided by Article 41?

Counsel for the Respondent referred to the "resign to run" approach being employed by legislatures in Australia, United Kingdom and the United States. He referred in particular to the case of Joyner v Mofford (1983) 706 F. 2nd 1523 - a case decided by the United States Court of Appeal for the Ninth Circuit. As stated in the headnote-

"This case involves a challenge by Joyner to a provision of the Arizona Constitution which forbids certain state officials from remaining in office if they run for an elected federal position before the final year of their state term. The case was brought by Joyner to enjoin its enforcement against him. The district court granted the relief Joyner sought and held that the Arizona provision is unconstitutional because it conflicts with the Qualification Clause of Article I, Section 2 of the United States Constitution 539 F Supp. 1120. The State appeals. We reverse."

That challenge by Joyner was against a. provision of the Arizona Constitution which he claimed was a breach of his constitutional rights for "equal protection". The Appeal Court declared that provision of the Arizona Constitution valid and although imposing limitations oil specified office bearers and potential candidates was nevertheless constitutional.

That however is not the position n this case. In the Joyner appeal the argument was directed to the restrictions that were included in the Constitution and which prevented Joyner from running for office. Those restrictions and limitations were held to advance substantial and important interests for the State of Arizona. As such they were considered to be valid limitations.

While the Joyner case affirms that Parliament's objectives in passing S.6A(2) could be justified that case in no way supports the method by which Parliament sought to achieve those objectives. However neither the Joyner appeal nor any other authority referred to us provides justification for this legislation amending the qualification provisions that are enshrined in Article 28B(2)(a) of the Constitution. Those provisions were transferred from the Electoral Act 1966 and included in the Constitution in 1981. Any amendment to those Constitutional qualifications can only be implemented by recourse to the provisions of Article 41.

CONCLUSION

Article 28B(2)(a) of the Constitution Amendment (No. 9) Act 1980 - 81 specifies the qualifications necessary for every person in the Cook Islands who wishes to be a candidate for election as a member of Parliament, viz.:

"(a) Every person enrolled as an elector of any constituency shall be capable of being elected as a member for that constituency or for any other constituency."

Section 3 of the Electoral Amendment Act 1993 purports to alter that provision of the Constitution that applies to every person in the Cook Islands by an enactment affecting a particular group of persons, namely Crown servants.

But Article 41 of the Constitution provides that:

"... no Bill ... amending or modifying ... this Constitution ... shall be deemed to have been passed by (the Assembly ..."

unless passed in accordance with the special procedure provided for in Article 41.

There can be no doubt that S.3 or the Electoral Amendment Act 1993 amends the qualification provisions of Crown servants who as electors are included in the term "every person" in Article 28B(2)(a) of the Constitution.

This amendment to the qualification provisions applying to Crown servants was effected by in amendment to the Electoral Act 1966 and not in accordance with the provisions of Article 41 which requires:

"(a) At both the final vote thereon and the vote preceding that final vote it receives the affirmative votes of not less than two - thirds of the total membership (including vacancies) of the Legislative Assembly; and

(b) There is an interval of not less than 90 days between the date on which that final vote was taken and the date on which the preceding vote was taken."

Instead of the 90 day period stipulated by Article 41 only 15 days in fact elapsed between 14 September 1993 when the Amendment Bill was introduced to Parliament and 29 September 1993 when the final enactment vote was taken.

Article 39 of the Cook Islands Constitution confers power on Parliament to "... make laws (to be known as Acts) for the peace order and good government of the Cook Islands ... (4) except to the extent to which it is inconsistent with this Constitution...". The Appellants contend that S.3 or the Electoral Amendment Act 1993 is inconsistent with the Constitution. The Appellants further allege that this amending legislation contravenes Article 64 of the Constitution providing for the preservation of fundamental human rights; and as well Article 40 of the Constitution dealing with the potential loss of superannuation entitlements that would be sustained by Crown servants who were forced to resign as a consequence of this legislation.

It is not necessary for me to consider Articles 40 and 64.

I am satisfied that S.3 of the Electoral Amendment Act 1993 purports to amend the "qualification of candidate" provisions in Article 28B(2)(a). That Article applies to "every person enrolled as an elector" - and so is inclusive of Crown Servants.

There has been no objection by the Appellants to the "resign to run" principle itself; the objection has been to Parliament's failure to comply with the requirements of Article 41 in the implementation of that principle as part or the Constitution of the Cook Islands.

Section 3 of the Electoral Amendment Act 1993 is therefore invalid in its entirety as being inconsistent with Article 28A and 41 of the Constitution of the Cook Islands.

The Applicants are entitled to costs to be fixed by the Registrar.

MR JUSTICE DILLON