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:
- 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.
- 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.
- 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.