p;
(c)
Paragraph (c) was added in 1934
two of the twenty-four charges are brought under it, the rehe remainder under
paragraph
(a). It is not clear at this stage which of the charges involved
Mr Lakatani’s activities as an Assemblyman and which as a
Minister.
On 10 Or 1995 Quilliam J
dismissed an application that the informations be struck out and thnd that the
Appellant be discharged.
He gave leave to Appeal to this Court on one of the
numerous grounds advanced before him, namely
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Whether judici otherwise,
in the service of Her Majesty, within then the scope of s 180 of the Niue Act
1966.
It has been rightly ted by
both sides that this Court has jurisdiction under Article 55A(2)(d) of the
e
Constitution
to entertain the Appeal and that leave was properly granted.
From 1910, when they were
brought within the boues of New Zealand, Niue wase was administered as part
of the Cook Islands
and in 1915 the Cook Islands Act established a system of
executive government with resident commissioners in both territories
together with a system of subordinate local government. Section 218 of that
Act created the offence of official corruption
in language identical with
the present s 180 (a) and (b) of the Niue Act 1966. While there were
similarities with ss
126 and 127 of the New Zealand Crimes Act 1908, the
Cook Islands provisions had a much wider scope. The New Zealand provisions,
appearing in a part concerned with “crimes affecting the administration of
law and justice” were limited to judicial
corruption and the corruption of
Justices, constables and public officers employed in any capacity for the
prosecution
or detention or punishment of offenders. Section 128 also made
it an offence to sell public offices or employment. From the
outset, the
Cook Islands legislation applied beyond those narrowly prescribed areas, to
cover the Cook Islands system
of government more generally. It was not until
1961 that the New Zealand Crimes Act was extended to include the corruption
and bribery of Ministers of the Crown, Members of Parliament, and officials
in general, Crimes Act 1961 ss102, 103, and
105. The original
Cook Islands
provisions had applied to some of the equivalent persons from the outset.
They were not limited to judicial and law enforcement
matters and would have
appeared to have applied, for instance, to the Resident Commissioners, their
Deputies, Resident
Agents and the officers of the Cook Islands Public
Service (defined as “the service of His Majesty…”) appointed under Part
I of
the 1915 Act. The executive government and judicial systems of the Cook
Islands (still including Niue) were restructured
by an Amendment Act of
1957, and this was followed by the Niue Act 1966 containing comprehensive
provisions for the government
of that territory independently of the Cook
Islands, as well as a code of criminal law. This was part of gradual
evolution
to Westminster-type parliamentary democracy with the Queen as Head
of State, culminating in 1974 with full self government
achieved by the
passage of the Niue Constitution Act. It provided for an elected assembly
which in turn elects a premier
who nominates three of their number for
appointment with him as Ministers forming the Cabinet.
As noted above, s180 (a) and (b)
of the Niue Act 1966 defined the offence of official corruption in terms
identical to
those in the earlier Cook Islands Act of 1915. That territory
obtained self-government in 1964, and Mr Upton asked us to note
that in 1969
it amended its bribery and corruption provisions to bring them into line
with those in the New Zealand Crimes
Act of 1961. He submitted that the
failure by Niue to enlarge s180 in the same way after it became self
governing left
a gap in its criminal law whereby Ministers and Assemblymen
can not be guilty of bribery or corruption offences.
On himissions this
extraordinary situation arises because ause of the qualification in s180 (a)
limiting its application
to “ the holder of any office, whether judicial or
otherwise, in the service of Her Majesty.” He accepted that Ministers
and Assemblymen were office holders. In his Judgement Quilliam J was
satisfied that they
were, but considered the expression "in the service of
Her Majesty" not apt to describe their status. Nevertheless,
with the aid of
ss5 (d) and (j) of the New Zealand Acts Interpretation Act 1924 ( in force
in Niue) he reached the conclusion
that those words should not prevent s180
(a) being given its plain meaning of rendering all office holders criminally
liable for bribery and corruption, in the light of Niue’s changed
constitutional situation on gaining self -government.
The relevant provisions of the
Constitution dealing with Niue’s executive government and its relationship
with the Crown
are contained in the following articles:-
1.
Executivcutive authority vested in the Crown – The executive authority of
Niue is vested in Her Majesty the Queen in right of New Zealand, and the
Governor General
of New Zealand is accordingly the representative of Her
Majesty the Queen in relation to Niue.
2. Cabinet Ministers of
>
– (1) There shall be a Cabinet of Ministers of Niue ( hereinafter referred
to as the Cabinet) which shall consist
of the Premier of Niue (who shall be
a member of the Niue Assembly) and three other members of the Niue Assembly.
(2) Subject is
Constitution, the executive authority of Niue may may be exercised on behalf of
Her Majesty by the Cabinet,
which shall have the general direction and
control of the executive government of
Niue and shall have
such other functions and powers as are conferred on it by law.
3. Minister to be
collectively reible
– (1) The members of the Cabinet ( hereinafter referred to as Ministers)
shall be collectively responsible to the Niue
Assembly.
The sole in this Appeal
al
ether Ministers and Assemblymen are “in the service of Her Her Majesty”
within the meaning
of those words used in s180 (a). Thvolves a
consideration of the extent to which the expe expressions “the Crown” or “Her
Majesty” (they are interchangeable) are to be taken as symbolic of the
executive authority of the state. We were referred
to Philip A Joseph’s
“Constitutional and Administrative Law in New Zealand (1993) and to his
article in (1993) NZLJ 126 “The Crown as a legal concept”, in which he
discussed relevant material and cases, those in more recent times focussing
on the question of Crown immunity and its ability to enter into legal
relationships.
It is now well recognised that
Ministers in Westminsype constitutions where the Queen is Head of State
ar are in her
service. In constitutional terms, “service” has wider
connotations than simply the legal relationship between master and servant,
as the following extract from Lord Diplock’s dissenting Judgment illustrates
in Ranaweera v Ramachandran [1970] AC 962, 972-973 ( his comments
were not affected by the majority decision):
The Constitution of Ceylon takes
he form of a constitutionalional monarchy modelled upon that of the United
Kingdom. Under
such a constitution all functions of central government of
the state, legislative, executive and judicial, are carried out
in the name
of the reigning monarch. In such expressions as “servant of the Crown” or
member of Her Majesty’s or “member
of Her Majesty’s service”, “the Crown”
and “Her Majesty” are used not in the personal but in the metaphorical sense
to
connote the central government of the state. No one would suggest that,
except as respects her personal staff, there exists
between Her Majesty as a
natural person and a “servant of the Crown” a legal relationship which
possesses the characteristics
of the relationship of master and servant at
common law, namely that Her Majesty can give instructions as to the manner
in which the servant of the Crown performs his work. On the contrary, Her
Ministers, by their advice, control the manner
in which Her Majesty herself
performs her duties under public law. Yet so far as I am aware it has never
been suggested
that Ministers of the Crown are not included in the
expression “servants of the Crown.” So clear was this thought to be by
the
United Kingdom Parliament in 1947 that in the interpretation section (s38
(2)) of the Crown Proceedings Act 1947
it is provided: “Officer” in relation
to the Crown, includes any servant of His Majesty and accordingly
(but without prejudice to the generality of the foregoing provision)
includes a “Minister of the Crown.”
It should be noted that s2 of
the Crown Proceedings Act 1950 (NZ) in force ince in
Niue contains a
corresponding definition of “servant of the Crown.” Although Mr Upton
submitted this definition could not
affect criminal law, it certainly
reinforces the conclusion that in constitutional terms Ministers are in the
service
of the Crown. Other observations to the same effect appear in the
judgement of Lord Reid in Bank voor Handel en Scheepvaart NV v
Administrator of Hungarian Property [1954] AC 584, 616 ((“Ministers are
pre-eminently Her Majesty’s servants”) and in that of Lord Simon of
Glaisdale in Town Investments Ltd v Department of the Environment
[1977] UKHL 2; [1978] AC 359, 398 (“the very term Minister…denoting an origin as the King’s
servant, and continued status as servant or agent of the Crown”).
Mr Upton sought to distinguish
the constitutional situation in Niue by emphasmphasising that under article 2 (2)
executive
authority is vested in article 1. Accordingly he submitted that
the Cabinet is the legal equivalent of the Governor-General
in New Zealand;
its acts and decisions are the primary and direct exercise of Her Majesty’s
authority in and over Niue;
and that Cabinet Ministers stand in her shoes in
exercising that authority. The Crown, he said, was with any other
corporation,
must act through duly appointed officers – in this case duly
appointed Ministers, who are principals to the exercise of Her
Majesty’s
authority and are accordingly not in Her service. Mr Upton’s use of the word
“principal” suggests a concept
of “service”, implying subordination to the
will of another, but, as the cases cited above indicate, this is not the
present constitutional position with Ministers of the crown or other “great
officers” of State.
The Niue Constitution is clearly
based on inster-style principles ands and conventions, with the Monarch as
Head of State
vested with executive authority. We are satisfied that the
references to Her Majesty in articles 1 and 2 are to be taken as
references
to the central executive government of Niue. The passage cited above from
Lord Diplock’s judgement in Ranaweera’s case makes this point very
clearly in regard to the then Ceylon Constitution.
>Town Investments Ltd v
Department of Environmentt he comes back to the same theme at pages
380-381 in a lengthy passage tracing the development of monarchical
government
in England, recommending that the word “Crown” should now be
understood simply as “government”, embracing the Ministers of
the Crown,
their subordinates and civil servants through whom the executive powers of
Her Majesty’s government are exercised.
He concluded with the comment
“Executive acts of government that are done by any of them are acts done by
“The Crown”
in the fictional sense in which that expression is now used in
English public law.”
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In the same case Lord Simon said
at page after referring to the symb symbolic way in which the words “Her
Majesty” are
used:
My Lords, it will I hope, be
apparent rent from the foregoing that “the Crown” and “Her Majesty” are terms of
art in constitutional
law. They correspond, though not exactly, with terms
of political science like “the Executive” or “the Administration” or “the
Government”, barely known to the law, which has retained the historical
terminology. So it comes about that Wade and Phillips, Constitutional Law,
discussing proceedings by and against the Crown before the passing of the
Crown Proceedings Act 1947, stated “”Crown”
includes all the departments of
the central government (3rd ed (1946 264) The minister at the
head of a department of central government is, of course, part of that
department.
These observations lead us to
conclusion that the refereeferences to “Her Majesty” as the holder of
executive authority
in articles 1 and 2(2) of the Constitution are to be
understood as references to the central executive government of Niue;
and
that those who form part of that government by serving it as Cabinet
Ministers are to be understood as serving Her
Majesty as its embodiment.
Accordingly it follows they must also be regarded as holding office in the
service of Her
Majesty within the meaning of s180(a).
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Assemblymen are in a different
position. The Constitution recognises and preserves the classic distinction
between the
Executive, Legislative and Judicial branches of government,
dealing with each topic in separate parts. The Assembly is elected
by
universal suffrage and in no sense could its members be regarded as being in
the service of Her Majesty, either in
Her personal capacity or embodiment of
the executive government of Niue. Accordingly, they fall outside the
provisions
of s180 (a) and as the law of
Niue presently
stands, they cannot be guilty of the offences of bribery or corruption. This
may well be unsatisfactory, but
we regret we cannot see our way clear to
adopting the robust approach taken by Quilliam J by simply ignoring the
words
“in the service of Her Majesty” in that sub section. No doubt because
we had the benefit of a fuller argument, we can give
that expression a
meaning which brings Ministers within s180 (a) as well as members of the
public service and the judiciary
and anyone else employed by the executive
government. Accordingly, a substantial area of the mischief intended to be
remedied by the bribery and corruption provisions is effectively covered by
this section and the Court would not now be justified
in invoking s5 (j) of
the Acts Interpretation Act to discard the words “in the service of Her
Majesty”, especially in
a penal section of this nature, in order to catch
wayward Assemblymen. To do so would be to cross the boundary between
legitimate interpretation and legislation. This gap in the criminal law is
one for the Assembly to remedy.
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For these reasons the Appeal is
allowedart and the question posed osed by Quilliam J is answered:
“A Minister, but not an
Assemblyman, ian, is the holder of an office in the service of Her Majesty within
the scope of
s180 of the Niue Act 1966.”
Casey JA Presiding
Solicitors Hesketh He
Auckland New Zealand ( for the appellant)
Government Solicitor, Alofi, Niue Niue ( for the respondent).
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