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 duly incorporated under the 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 the First and Second Applicants
Mr McFadzien, Solicitor General and Mr D.A. Williams Q.C. for Respondent.

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

REASONS FOR JUDGMENT OF QUILLIAM J.A

On 4 October 1993 the Cook Islands Parliament enacted the Electoral Amendment Act 1993 which had the effect of prohibiting Crown servants ( as defined in the Act) from being nominated for election to Parliament and of serving as members of Parliament. The First Applicant, himself a Crown servant who was desirous of standing for Parliament in the general elections to be held on the 24th March 1994, applied to the High Court for a declaration that section 3 of the Electoral Amendment Act 1993 was invalid as being the provision of an Act which was inconsistent with certain Articles of the Constitution of the Cook Islands. Because of the very important constitutional question raised by the amendment, and of the limited time for determination of the application before nomination day for the elections, namely 25 February, the application was by consent removed into this Court.

The application was heard at Wellington on 15 February when judgment was reserved. The urgency of the matter meant that judgment had to be delivered before the detailed reasons could be prepared. Judgment was accordingly delivered on 22 February (Cook Islands time) and in that judgment a declaration was made that S.3 of the Electoral Amendment Act 1993 was invalid. I now set out my reasons for having reached that conclusion.

Section 3 of the Amendment Act repeals S.6A of the Electoral Act 1966 and substitutes for it the provision to which exception has now been taken. The repealed S. 6A provided that public servants could become members of Parliament but were required to take leave without pay from, or possibly prior to, nomination day until the seventh day after polling day. Apart form the loss of salary, such person did not lose other rights held as a public servant. This was a familiar provision common to many countries.

The Amendment Act defined "Crown servant" as meaning "a person who is an officer or member of, or is employed by or within a government corporation or government department…" with certain exceptions which do not apply here. This definition is wider than the previous definition of "public servant", but for present purposes nothing turns on this.

Section 3 of the Amendment Act provides:

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

'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 of resignation cease to be a Crown servant.'"

The effect of this provision, so far as the First Applicant is concerned, is that, if he wished to seek nomination for election, he had first to resign his office as a Crown servant, with the consequent loss of salary and of certain superannuation and other rights.

The Second Applicant is the Cook Islands Public Servants Association which seeks to protect the rights of any Crown servants who may wish to stand for Parliament.

The present application is brought on the grounds first, that the Amendment Act is invalid as being inconsistent with Articles 28B and 41 of the Constitution, and second, as being inconsistent with Article 40 and several of the subclauses of Article 64. I propose to consider first the question of validity in respect of Articles 28B and 41.

Articles 28B provides:

"28. 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 intention of that Article is clear. It is that, with the exceptions set out in subclause (1), every person enrolled as an elector is capable of being elected. The contention for the Applicants is that the new S.6A has purported to add to Article 28B(1) a further category of persons, namely Crown servants, who may not be elected to Parliament, but that such a provision is invalid as not having complied with the procedure necessary for achieving an amendment to the Constitution.

On behalf of the Respondent it was argued that, while S.6A(1) was conceded to be unconstitutional and invalid, the same situation did not apply to S.6A(2). This was because S.6A(2) was designed to do no more than to regulate the public service.

I am unable to agree with this argument and now set out my process of reasoning.

Section 4 of the Cook Islands Act 1964 provides:

"The Constitution set out in the Schedule to this Act shall be the Constitution of the Cook Islands, and shall be the supreme law of the Cook Islands."

It is accordingly to be noted that the Constitution, although itself an Act of Parliament, is the supreme law.

The Constitution may, however, be amended by Parliament. This is provided for by Article 41(1), namely:

"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 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 ninety 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."

Subclause (2) has no application for present purposes.

The position, therefore, is that Parliament may enact amendments to the Constitution, but only by a two-thirds majority, and after a period of at least 90 days between the final and penultimate votes. It is common ground that the Electoral Amendment Act 1993 did not comply with these requirements.

Reference must be made also to Article 27(3) of the Constitution (as inserted by S5 of the Constitution Amendment (No 9) Act 1980-81):

"Subject to the provisions of this Article and to Articles 28, 28A, 28B, 28C and 28D hereof, the qualifications and disqualification of electors and candidates, the mode of electing members of the Legislative Assembly, and the terms and conditions of their membership shall be as prescribed by Act."

This provisions (sic) is, however, expressly made subject to Article 28B, and it follows that the Constitution intends that the qualification and disqualification of electors and candidates is to be governed by that Article. Parliament is, of course, bound by its own Constitution.

On behalf of the Respondent, Mr Williams argued that the "resign to run" provisions of S.6A(2) implement constitutionally legitimate and important social objectives, including increased efficiency and political neutrality of Crown servants.

In the affidavit of Temu Okotai, the Chief Executive Officer of the Office of the Prime Minister, he has explained the considerable practical difficulties caused to the public service and the efficient running of the country by senior public servants defecting from their offices for the purpose of standing for Parliament . The country is a small one, with a total resident population of about 18,000 and we readily accept that if several senior public servants should leave their posts vacant in order to stand for election then those vacancies could be very difficult to fill. We must say at once, however, that such difficulties could not in themselves be any justification for departing from the provisions of the Constitution.

I should also observe that the Cook Islands Parliament may not be precluded from imposing restrictions on the right of Crown servants to stand for election so long as it complies with the Constitution, and in particular with Article 41(1) as to amendment, modification and extension of the Constitution.

There could, of course, still arise the question of whether such an amendment to the Constitution was consistent with other provisions in the Constitution and, in particular, Article 64, but that is not a matter requiring determination now.

Mr Williams sought to rely on the situation in other countries, and particularly the United States and Australia, in each of which the Courts have upheld legislation prohibiting government employees from taking part in political management or political campaigns. Particular stress was laid on cases such as Joyner v Mofford (1983) 706 F 2d 1523 in which it was held that there was a distinction between state provisions which bar a candidate from running for federal office, and those which merely regulate the conduct of state office holders. It was argued that the former was what the new S.6A(1) attempted to provide, and the latter was what S.6A(2) provided.

I think it necessary to observe that the United States cases cited to us go considerably further in drawing the distinction referred to than seems consistent with my view of the scheme of the Cook Islands legislation.

I need not, however, pursue this theme because I am unable to see that any such distinction can be found in the present case.

There can be no doubt that S.6A(1) was unconstitutional, as was conceded, because it sought to add to the categories of persons set out in Article 28B(1) who were disqualified from being candidates for elections. What S.6A(1) provided was that no Crown servant was capable of being nominated. Only a duly passed amendment to the Constitution could properly have imposed such a disqualification.

The question, then, is whether S.6A(2) can be distinguished from that purported disqualification. I am unable to see that it can. I can see no distinction between a prohibition on a Crown servant being nominated and a Crown servant being required to resign before consenting to nomination. Grammatically and in substance the two situations are in my view identical.

I think the matter can be tested by considering the position of a Crown servant if there had been no subsection (2). In that event, a Crown servant who wished to be nominated must necessarily have first had to resign. All that subsection (2) has done is to spell that out. It has simply emphasised that a Crown servant who wished to remain a Crown servant was prohibited from being nominated. This situation could, of course, have been achieved by Parliament under Article 41(1) by amendment to the Constitution but that has not occurred. Only in that way could the entrenched provisions of Article 28B be overcome.

It follows that both subsections (1) and (2) of S. 6A as enacted by S3. of the Amendment Act are unconstitutional and therefore invalid.

The Applicants had, in their second ground, relied also on the contention that S. 3 of the Amendment Act was inconsistent with Article 40 and a number of the provisions of Article 64 of the Constitution, and further that they were discriminatory as applying only to one class of electors. Because of the conclusion the Court has reached on the first and principal ground I do not need to discuss these further contentions. They are better left for determination in another case to which they may have direct application.

I accordingly confirm the judgment already delivered.
QUILLIAM J.A.