In re Sub-Cabinet Appointees

High Court
6
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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