Former Clerk of Parliament John M Scott dissects clauses of the Cook Islands Constitution that may have been considered by the Prime Minister in his decision to remove the suspension of his deputy Robert Tapaitau, who is facing corruption charges.

It was revealing indeed to read Cook Islands News headline on 19 May wherein the new Solicitor-General was compelled to correct a claim by Prime Minister Mark Brown that Crown Law had lent its support to the Prime Minister’s fiction that all was okay with it to reinstate the Deputy Prime Minister when it was nothing of the sort (and which untruth has now been admitted by the Prime Minister in Cook Islands News article ‘PM Brown retracts’ in May 20th edition).

It was particularly refreshing for another reason.

I had been hearing some good things about the new Solicitor-General Graham Leung. A principled fellow it has been said; a deep respect of the rule of law; fearless and uncompromising when confronted by an executive government pursuing a murky agenda. He can expect all these to be tested.

And it looks like it has already begun and the landscape has had its christening. Not exactly a baptism of fire but a shot across the bow with a very clear message.

Of some comfort also is the fact that our principal law officer comes to us from a place which has a written Constitution unlike many of his predecessors of whom I have written critically through the years who believed their role was to do the bidding of their political masters and bend or interpret the law a particular way which denied the public interest and favoured their own political exigencies.

This obeisance did not serve the Cook Islands well when what we needed was the assurance of an independent judiciary and law enforcement agencies, a warning, and prayer I sounded a year ago where I drew comparisons between what was happening in Samoa and our own experience.

So yes, good to have someone who is his own man and from Fiji to boot which must have been challenging because Fiji is no shining example of democracy at work. And, as we are neither, his experience will be very relevant.

Having said all those nice things I have to give notice that there is just one lingering, and unfortunately ongoing, complaint I do have where Crown Law is concerned but this had its origins before Mr Leung joined us. It is, however, one I will need to be commenting upon and will be doing so over the next few weeks.

Now to the issue at hand. Readers of this column may recall my letter of 10 March 2021 when the suspension of the DPM began hitting the news and in which I mooted a situation, paralleling one that occurred in Israel – a state much admired by Cook Islanders – where the Prime Minister himself was under investigation.

As there is every possibility, given the unconstitutional behaviour that is now endemic here and every chance that the Prime Minister could find himself in a similar territory, I questioned whether the Prime Minister would then recommend his own suspension! That was the position reached in Israel.

I postulated in that letter that desperate people do desperate things and that we should not underestimate the temptation for embattled politicians to attempt to use the powers of their office to influence the judicial process. Was this present Crown Law revelation then just a backfired harbinger of things that might have been expected and why we should be grateful to the Solicitor-General for sending his very appropriate and timely message.

I have said it before and say it again. The Queen’s Representative should start boning up on Reserve Powers and if in any doubt consult the NZ Governor-General or the Palace. You never know when he may need to use them.

And likewise, the Doctrine of Necessity about which I have also written in case we ever find ourselves in the predicament of being frustrated by circumstances which required an extra-constitutional act to restore constitutionalism. The raison d’etre being ‘that which is otherwise not lawful is made lawful by necessity’.

But right now, what the situation calls for is a closer interpretation and examination of the efficacy of Article 14 (7) and (8) because while Crown Law has reasserted its independence its action does beg one question.
What would its advice have been if the Prime Minister had sought that advice?

On the interpretation of those subclauses of Article 14 of the Constitution I do have some views but the situation requires a mind sharper than mine because a lot could swing on it so I would urge that some thought be given to that.

The two subclauses, beneath the Article’s heading-duration of office of members of Cabinet read thus:

(7) The Queen’s Representative, acting on the advice of the Prime Minister, may by instrument under the Seal of the Cook Islands-

a) Declare a Minister to be by reason of illness temporarily incapable of performing his functions as a Minister; or
(b) Suspend a Minister during the period of any investigation or inquiry into the conduct of that Minister.

(8) Any Minister in respect of whom action has been taken under the provisions of subclause (7) of this Article shall not perform any of the functions of his office or sit in or otherwise take part in the proceedings of Cabinet or of the Executive Council until the Queen’s Representative, acting on the advice of the Prime Minister, has revoked the aforesaid instrument under the Seal of the Cook Islands.

DPM Robert Tapaitau was suspended pursuant to (7)(b). He was allegedly restored to his position and entitlement to sit in Cabinet and Executive Council pursuant to (8).

To most thinking people that last act would normally appear to proceed on a presumption of innocence and exoneration, but we are a long way from that with some serious unresolved charges still hanging over his head.

One should then therefore be asking, is this the way those two provisions (7) and (8) were intended to be interpreted.

To my mind the answer to that question is no! It has been written, and the Court of Appeal I seem to recall somewhere, has reminded us, that in interpreting a Statute as so fundamentally important as a Constitution, the administrator is enjoined to adopt the purposive approach when confronted, as here, with the difficulty of discerning the true intent and purpose of an enactment.

What is meant by that is to look behind the provision and seek the purpose for which it was enacted, its fundamental objective and the intention of the framers within the context of the law’s ambit. It allows the Courts more latitude than normally available under strict statutory interpretation rules. Some argue that it conflicts with the separation of powers and permits justices to become legislators but theirs is the weaker position.

So let us adopt that approach with someone who falls into the 7(a) category.

Is it feasible do you think that the framers intended that a Minister who had a nervous breakdown for example, was irrational and disoriented and had been suspended because of it, and whose condition worsened, should have his suspension lifted because it was politically expedient that he return to the Cabinet table and appear to resume his public life? Of course not!

Subclause (8) surely was intended to be available when the Minister was restored to good health and possessed of all his faculties and could usefully and productively return to public life. To interpret it otherwise would make a mockery of it.

Turning now to category 7(b). Here we have a Minister facing some serious criminal charges. His suspension was invoked because he was under investigation and suspension was the right thing to do. If the investigation had ended and it was found that there were no charges to answer it would be right and proper thing to lift the suspension. Who would deny that?

But we have gone a stage further with this Minister and rather than being cleared of all charges quite the opposite prevails, and he faces charges for which a conviction would disqualify him from offering himself for re-election later this year. If the Court calendar had allowed, and/or general election considerations not acquired questionable pre-eminence, the Minister would have had his day in Court.

As it is, he has been offered a political reprieve, time to recover a political identity, still possessed of his qualification to stand and no doubt intending to present himself to his Penrhyn electorate under the Cook Islands Party banner which rescued him and, if re-elected, continue to provide the CIP that possibly crucial number that got him into their ranks in the first place.

Given that background and adopting a purposive approach who in their right mind would think that the framers of the Constitution would have accepted the removal of the suspension as an intended and acceptable interpretation in Tapaitau’s case?

Surely, again, the purpose of the provision is that the Minister be removed from participating in any Ministerial role while still under a cloud of unresolved criminal charges and that the public interest, integrity of the system and just plain, ordinary credibility should be demanding it.

And Prime Minister Brown’s deceptive engagement in these antics, along with other revelations in recent times, just further demonstrates his unfitness for office.

More’s the pity Tapaitau’s court case was not over and done with before it had come to this point leaving one with the question could that have been avoided?

• John M Scott was Clerk of Parliament from 1965 to 1973.