In re Sub-Cabinet Appointees

High Court
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HIGH COURT OF THE SOUTH PACIFIC
CASE SUBMISSION

I respectfully submit this case for the consideration of the High Court, and in so doing state that the information contained within it is true to the best of my knowledge, and I further make myself available to answer any questions that the Court may have.

Reference Name
In re Sub-Cabinet Appointees

Request
I humbly request that this Court answer the following legal questions:

  1. Are individuals appointed by Cabinet Ministers to assist and advise the Cabinet Minister in the execution of their duties (e.g., the Domestic and Foreign Affairs Councils) considered “[m]embers of the Executive” pursuant to Charter V.(4)?
  2. If not, are any actions taken by such individuals in the course of their duties nevertheless considered “official act[s] of government” and thus subject to judicial review in this Court pursuant to Charter VII.(4)?
  3. If not, can such individuals lawfully exercise any governmental power in the discharge of their position, or are they limited to providing advice and counsel to the Minister?

Description
These questions arose during the Assembly debate on the recent omnibus citizenship reform. See [2339.AB] Amended Voter Registration Bill - #47 by Legend.

Much like the other set of questions I submitted this evening, I am sure the Court will realize without further illustration the ways in which these questions could arise in practice. I won’t provide a full hypothetical for these questions, but I want to emphasize the latent threat to the rule of law that would obtain should sub-Cabinet appointees be permitted to exercise governmental power yet not be considered government officials for purposes of judicial review. To ensure that the government is administered according to law, the Charter provides for judicial review of official action that is inconsistent with the Charter or violative of individual rights. It would subvert the purpose of that legal structure if Cabinet Ministers could avoid judicial review simply by delegating authority to subordinates who, on the grounds that their actions are not “official act[s] of government,” could implement unlawful policies free from scrutiny in this Court.

I stand ready to answer the Court’s questions and to provide a more detailed amicus brief should one be helpful to the Court.

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High Court of the South Pacific

[2303.HQ] In re Sub-Cabinet Appointments

Let this serve as notice that this petition has been received by the High Court and has been assigned the following identifying information:

Docket Number
2303.HQ

Reference Name
In re Sub-Cabinet Appointments

Request

  1. Are individuals appointed by Cabinet Ministers to assist and advise the Cabinet Minister in the execution of their duties (e.g., the Domestic and Foreign Affairs Councils) considered “[m]embers of the Executive” pursuant to Charter V.(4)?

  2. If not, are any actions taken by such individuals in the course of their duties nevertheless considered “official act[s] of government” and thus subject to judicial review in this Court pursuant to Charter VII.(4)?

  3. If not, can such individuals lawfully exercise any governmental power in the discharge of their position, or are they limited to providing advice and counsel to the Minister?

The petitioner and other interested parties are invited to explain the admissibility or lack thereof of this case no later than 2023-10-07T19:00:00Z, but the Court reserves the right to make a determination before then.

Submission: 04 Oct 2023

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High Court of the South Pacific

[2303.HQ] In re Sub-Cabinet Appointments

Whereas this Court has been asked to exercise the judicial power vested in it by Article VIII of the Charter of the South Pacific, it is resolved that this case is justiciable and will be considered for resolution by a panel of two justices.

The petitioner and interested parties may submit arguments with their views on this case no later than 2023-10-25T19:00:00Z, but the Court reserves the right to issue an opinion before then.

Submission: 04 Oct 2023 | Determination: 18 Oct 2023

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May it please the Court, I am drafting an amicus brief in this case and plan to submit it in the next few days.

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Chief Justice, and may it please the Court:

With deepest apologies for the delay, I respectfully submit this amicus brief for the Court’s consideration.

Any action taken under color of official authority is an “official act of government” subject to judicial review in this Court, regardless of the actor’s formal title or position within the regional government. Such action must be declared “void upon a determination that it violates the terms of [the] Charter or any other constitutional law.” Charter VII(4). While individuals appointed by Cabinet Ministers to assist and advise in the execution of their duties are not “[m]embers of the Executive” within the meaning of Charter V(4), that does not exempt them from the operation of law insofar as they purport to exercise official authority on behalf of the Cabinet.

On the contrary, every government official who exercises authority pursuant to the Charter and laws of the South Pacific must do so subject to and in conformity with the same. The law marks out the metes and bounds of official authority; a purportedly official act that violates regional law is ultra vires and without legal effect. That postulate instantiates the rule of law—that the government must be subject to law in the same way and to the same extent as the citizenry it governs. One way in which our Charter effectuates the rule of law is by establishing an independent judiciary with authority to invalidate official actions that violate constitutional law. It would be an erroneous and dangerous exaltation of form over substance to permit Cabinet officials to evade judicial review simply by empowering subordinates, who are not technically members of the executive, to exercise governmental power in their stead.

With this conclusion and background principles in mind, I turn to the specific questions presented by the petition:

  1. Are individuals appointed by Cabinet Ministers to assist and advise the Cabinet Minister in the execution of their duties (e.g., the Domestic and Foreign Affairs Councils) considered “[m]embers of the Executive” pursuant to Charter V.(4)?

No. Article V of the Charter “[e]stablish[es] an executive branch consisting of the Prime Minister and an appointed Cabinet.” That’s it. Only individuals elected as Prime Minister or appointed as a Cabinet member pursuant to the finely calibrated procedure prescribed by Article V(2) are “[m]embers of the Executive” branch. Regardless of their title, appointees to sub-Cabinet positions, such as the Foreign Affairs Council, do not meet either of these criteria.

This, it seems, is a relatively recent change to regional law. Previous versions of the Charter included a section providing that the “Prime Minister and Cabinet Ministers may elect to appoint deputies and advisors, who will be considered junior members of the Cabinet.” In re Separation of Powers, 1904.HQ (emphasis added). As junior members of the Cabinet, one of the bodies comprising the executive branch, such deputies and advisors would seem to have been “[m]embers of the Executive” branch. See Amicus Brief of Sandaoguo submitted in In re Dual Cabinet Membership Restrictions, 1405.HQ (“Deputy Ministers are just as much part of the executive as their bosses.”); id. (statement of Belschaft, J.) (adopting the “amicus brief submitted by Glen-Rhodes” as “match[ing] my own thinking in regards to this legal question”). That provision survived, albeit in slightly modified form, until May of this year, when it was repealed as part of the Omnibus Reconciliation of PM Appointed Cabinet Provisions, A2304.02. The deletion of the very provision that most clearly indicated that sub-Cabinet appointees were members of the executive lends further support to the straightforward textual interpretation advanced above, namely that such officials are no longer considered “[m]embers of the Executive” for purposes of Charter Article V(4).

To be sure, this interpretation means that the citizenship requirement imposed by Article V(4) do not apply to sub-Cabinet appointees. See Charter, Article V(4) (providing that only “[m]embers of the Executive are required to be citizens of the Coalition.”). One might question the wisdom of permitting non-citizens to serve in such potentially sensitive positions. But that is ultimately a legislative judgment beyond the ken of this Court. Where there is “a single literal, common sense meaning [of a legal provision,] then the High Court will establish such as the law.” In re Designation of Constitutional Laws, 1819.HQ. As much is true here.

  1. If not, are any actions taken by such individuals in the course of their duties nevertheless considered “official act[s] of government” and thus subject to judicial review in this Court pursuant to Charter VII.(4)?

Yes, although it is somewhat heavier interpretive lift to explain why.

At first glance, this question would seem largely resolved by this Court’s decision in In re Separation of Powers, 1904.HQ. There, Chief Justice Kringle recognized a legal distinction between two types of sub-Cabinet officers, “Deputies” and “Advisors.” Advisors cannot exercise any governmental authority; their “role [is] restricted to providing guidance and knowledge.” Id. Deputies, on the other hand, have “particular attributes and authority” that differentiate them from Advisors, namely “the potential to exercise the same functions as the principal officer who appointed them.” Id. In other words, Deputies can be vested with official authority to act on behalf of the executive branch or a particular ministry thereof, while Advisors are not. See id. (noting that Deputies “hold significantly more effective authority over a ministry than an Advisor”).

Because Deputies can exercise official authority, they are “subject to different restrictions” than Advisors. Id. Specifically, Deputy positions are “Offices of the Coalition” within the meaning of Article 7(1) of the Elections Act, and Deputies are thus subject to the restrictions placed on such officials. Id. Admittedly, In re Separation of Powers expressly held only that Deputies were bound by the limitations on dual officeholding set forth in the Elections Act. But the reasoning of that case extends to all generally applicable legal limitations on Coalition officials, which includes the amenability of their official actions to judicial review in this Court. Thus, when In re Separation of Powers was handed down, this question appeared to have a clear answer: if the sub-Cabinet official were a Deputy invested with authority to act on behalf of the government, then their actions pursuant to that official authority would be judicially reviewable; if the official were merely an Advisor limited to “providing guidance and knowledge,” then they had no official authority to act that could be reviewed by this Court.

But things have gotten more complicated since then. The In re Separation of Powers decision rested partially on the distinction between Deputies and Advisors suggested by the Charter provision authorizing the appointment of these two different types of officials. See id. (noting that “Article VI, Section 15 of the Charter is also relevant to . . . the question subject of this case, since it says the following: ‘The Prime Minister and Cabinet Ministers may elect to appoint deputies and advisors’”). As previously noted, however, this provision was repealed in May of this year and no longer appears in the Charter. Thus, the extent to which the Deputy / Advisor distinction remains a viable framework through which to analyze this question is unsettled.

Despite the deletion of the Deputy/ Advisor appointment provision, the distinction between Deputies empowered with official authority and Advisors restricted to offering guidance remains a logical and useful one, and it is solidly grounded in the Charter. The deletion of the appointment provision did not affect Cabinet ministers’ authority to appoint Advisors; indeed, it’s hard to imagine what type of legal provision could. Advisors are simply individuals who provide counsel to ministers; they exercise no governmental power. As such, officially appointing someone as an “Advisor” has essentially no legal effect, aside from perhaps granting them access to some confidential discussions. The question is a bit closer with respect to Deputies, but several provisions of the Charter, when read together, confirm that the Executive retains authority to appoint such officials. First, Article VII(1) of the Elections Act continues to recognize the existence of “appointed deputies” to the Cabinet. This is the second provision on which In re Separation of Powers relied in drawing a distinction between Deputies and Advisors. And the authority to appoint such Deputies would seem to be encompassed by the Prime Minister’s powers to “define the role of the appointed [Cabinet] minister,” “delegate their statutory powers . . . to their appointed deputy as needed,” and “issue further regulations to adequately conduct their executive business.” Charter V(2),(4). Thus, the Deputy / Advisor dichotomy remains viable, and the Court should take this opportunity to (1) reaffirm the existence of and distinctions between these two offices and (2) unequivocally hold that actions of Deputies taken pursuant to their delegated authority are “official act[s] of government” subject to judicial review.

  1. If not, can such individuals lawfully exercise any governmental power in the discharge of their position, or are they limited to providing advice and counsel to the Minister?

From the foregoing, it should be apparent that the answer to this question is no. The ability to exercise governmental power goes hand in hand with the judicial reviewability of such official acts. Our law recognizes no official, high or petty, who can exercise absolutely unreviewable authority. To the extent that a sub-cabinet official’s actions are unreviewable, they must be limited to a purely advisory capacity.

That said, this conclusion does raise a further question, namely how this Court should determine which officials are Deputies and which are Advisors. Ultimately, this decision should turn on the substance of the official’s duties and powers, rather than their formal title. Indeed, this Court has already recognized as much, indicating that given the “risk that an individual named as Advisor could be assigned, in practice, responsibilities more akin to those of a Deputy,” “[s]uch cases would need to be examined and evaluated on their merits,” rather than resolved on the basis of the individual’s title. In re Separation of Powers, 1904.HQ. Permitting a Deputy-in-substance to exercise unreviewable governmental authority by hiding behind purely nominal title of Advisor would make little sense.

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HIGH COURT OF THE SOUTH PACIFIC
[2303.HQ] In re Sub-Cabinet Appointments

Question

  1. Are individuals appointed by Cabinet Ministers to assist and advise the Cabinet Minister in the execution of their duties (e.g., the Domestic and Foreign Affairs Councils) considered “[m]embers of the Executive” pursuant to Charter V.(4)?
  2. If not, are any actions taken by such individuals in the course of their duties nevertheless considered “official act[s] of government” and thus subject to judicial review in this Court pursuant to Charter VII.(4)?
  3. If not, can such individuals lawfully exercise any governmental power in the discharge of their position, or are they limited to providing advice and counsel to the Minister?

Summary of the Opinion
The Court finds that individuals appointed by Cabinet ministers to assist and advise the minister in the execution of their duties are not “[m]embers of the Executive” in the context of Article V, Section 4 of the Charter; that actions taken by such appointees are “official act[s] of government” in the context of Article VII, Section 4 of the Charter only if in exercise of governmental authority; and that the limitations on lawful exercise of power by such appointees is determined by applicable law and the terms of their appointment.

Justice Pronoun delivered the ruling, signed also by Chief Justice Kringle.

This case submits three questions pertaining to individuals appointed by Cabinet ministers to assist and advise the Minister in the execution of their duties. In the interests of brevity and readability only, the Court will refer to such individuals in this opinion as Cabinet appointees.

Members of the Executive. Members of the Executive are referred to in Article V, Section 4 of the Charter, which provides that “[m]embers of the Executive are required to be citizens of the Coalition.”1 While the ‘members of the Executive’ terminology is not used elsewhere in the body of regional law, the surrounding and historical context makes clear that it refers to positions established by Article V.

Although the historical context is not necessarily dispositive, it nevertheless informs a reasonable interpretation of the clause in this case. The ‘members of the Executive’ terminology originates in August 2017, when it was proposed in the Assembly by Farengeto with the intent to close “some glaring loopholes” by ensuring, among other changes, that “[f]or [the] Executive, Legislator [status] is required to run for office.”2 In light of this statement, and in the absence of alternative interpretations by other legislators in the Assembly debate, the historical record offers a clear indication that ‘members of the Executive’ was originally intended to refer only to elected executive positions which involved candidates running for office — at the time, a Prime Minister and a Cabinet consisting of Ministers of Foreign Affairs, Regional Affairs, and Military Affairs. By extension, the historical record offers no indication that ‘members of the executive’ was intended to refer to Cabinet appointees appointed by elected members of the Cabinet.

It is also clear from the immediate context of Article V, Section 4 of the Charter that ‘members of the Executive’ refers to those individuals established in Article V itself as belonging to the executive branch. A plain reading suggests that Article V, Section 4 refers to the immediately preceding section, which establishes the offices of the Prime Minister and the Cabinet. Indeed, the subheading of Article V states its purpose to be “[e]stablishing an executive branch consisting of the Prime Minister and an appointed Cabinet.”3 In contrast to this explicit mention of and creation of the Prime Minister and the Cabinet, Article V makes no mention of Cabinet appointees.

The reasonable interpretation that thus emerges is that the term ‘members of the Executive’ cannot be interpreted in isolation, and its context in both the historical record and the Charter make clear that it naturally refers to the Prime Minister and members of the Cabinet.

Official Acts of Government. The second question of this case pertains to whether the actions of members of the Executive are considered “official act[s] of government” for the purposes of Article VII, Section 4 of the Charter. However, an official act of government, in that context, can be understood without dependence upon Article V, Section 4.

Article VII, Section 4 establishes the authority of the High Court to review the constitutionality of any “official act of government,” including but not limited to general laws, regulations, directives, and determinations4 Notably, it refers to acts of government, not to acts of government officials; and thus, an official act of government is characterized not by the particular individual taking the action but by the exercise of governmental authority. For instance, among the examples listed in Article VII, Section 4, the Assembly holds supreme legislative authority in the Coalition,5 and a general law is thus an official act in exercise of that governmental authority; similarly, the Prime Minister holds the executive authority to issue regulations in order to adequately conduct their executive business,6 and such a regulation is thus an official act in exercise of that governmental authority. These official acts of government are characterized as such by their association with governmental authority.

It follows that, insofar as the second question of this case pertains only to actions taken by Cabinet appointees in the course of their duties, such actions should be judged to constitute, or not constitute, official acts of government on the basis of whether or not such actions exercised governmental authority. The fact that such an action was taken by a Cabinet appointee does not weigh upon that question. Indeed, the law does not give any indication that an action could be rendered an official act of government, or vice versa, based on whether the individual taking the action happened to be a Cabinet appointee.

Thus, an action by a Cabinet appointee constitutes an official act of government under Article VII, Section 4 if that action is in exercise of governmental authority.

Limits of Authority. The third question of this case asks whether Cabinet appointees can lawfully exercise any governmental power if their actions are not subject to judicial review under Article VII, Section 4 of the Charter.

The Court finds, in light of its opinion with regard to the preceding two questions, that this question is rendered largely moot. The power of Cabinet appointees to exercise governmental authority is limited by applicable law, and such exercises of governmental authority may be subject to judicial review; the limits of judicial review are not uniquely determinative of the limits of the powers of Cabinet appointees.

Footnotes and References

  1. Charter of the Coalition of the South Pacific; Article V, Section 4 (2023). THE MATT-DUCK Law Archive.
  2. Farengeto (2017). Fix to Legislator loopholes. Retrieved from Fix to Legislator loopholes.
  3. Charter of the Coalition of the South Pacific; Article V (2023). THE MATT-DUCK Law Archive.
  4. Charter of the Coalition of the South Pacific; Article VII, Section 4 (2023). THE MATT-DUCK Law Archive.
  5. Charter of the Coalition of the South Pacific; Article IV, Section 1 (2023). THE MATT-DUCK Law Archive.
  6. Charter of the Coalition of the South Pacific; Article V, Section 3 (2023). THE MATT-DUCK Law Archive.

Submission: 04 October 2023 | Determination: 18 October 2023 | Verdict: 28 December 2023

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I thank the Court for its thorough consideration of and thoughtful ruling on this important matter.

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