Definitions of the Constitution
Article 1 of the Constitution contains a number of key definitions which include the following:-
'Cabinet' means the Cabinet of Ministers of the Cook Islands'
'Executive Council' means the Executive Council of the Cook Islands established under this Constitution
'High Court' means the High Court of the Cook Islands established under this Constitution
'Legislative Assembly' or 'Assembly' where it appears in this Constitution or any other enactment means the [Parliament] of the Cook Islands established under this Constitution
'Minister' means a Minister of the Government of the Cook Islands and includes the Prime Minister
'New Zealand' means New Zealand exclusive of the Cook Islands
'Parliament' means the Parliament of the Cook Islands established under this Constitution, and the term 'Legislative Assembly' or ' Assembly' where it appears in this Constitution or in any other enactment shall have the same meaning
'Prime Minister' means the Prime Minister of the Cook Islands
'Queen's Representative' means the representative of Her Majesty the Queen in the Cook Islands appointed under Article 3 hereof.
Article 1 also defines the Cook Islands by using the same degrees of latitude and longitude as those specified in the Order in Council of May 13 1901 except for that part of the Ocean relating to Niue; that is, the Cook Islands means:
"all islands in the South Pacific Ocean lying between the 8th and 23rd degrees of south latitude and the 156th and 167th degrees of longitude west of Greenwich; and each island of the Cook Islands shall be deemed to include all smaller islands lying within 10 miles of the coasts thereof".
The Head of State/The Realm of New Zealand
Article 2 of the Constitution states that "Her Majesty the Queen in right of New Zealand shall be the Head of State of the Cook Islands".
The above expression, "in right of New Zealand" refers directly to the constitutional concept of 'realm of New Zealand' as described in the 1983 Letters Patent Constituting the Office of Governor-General of New Zealand approved by the Cook Islands after consultation with New Zealand. In those Letters Patent, Her Majesty Queen Elizabeth II declared, inter alia,
"Our will and pleasure as follows:
1. We do hereby constitute, order and declare that there shall be, in and over Our Realm of New Zealand, which comprises -
(a) New Zealand; and
(b) the self-governing state of the Cook Islands; and
(c) the self-governing state of Niue; and
(d) Tokelau; and
(e) The Ross Dependency, -
a Governor-General and Commander-in-Chief who shall be Our representative in Our Realm of New Zealand, and shall have and may exercise the powers and authorities conferred on him by these Our Letters Patent, but without prejudice to the office, powers or authorities of any other person who has been or may be appointed to represent Us in any Part of Our Realm of New Zealand and to exercise powers and authorities on Our behalf."
Thus, Her Majesty Queen Elizabeth II, by virtue of being Head of State of Her entire Realm of New Zealand as described in the Letters Patent, is also Head of State of that part of Her Realm of New Zealand referred to in the Letters Patent as "the self-governing state of the Cook Islands". Oaths of office taken by the Queen's Representative, Members of Parliament and Judges of the High Court and prescribed in the Constitution require allegiance to be sworn to the reigning Sovereign (eg Her Majesty Queen Elizabeth II) "as the Head of State of the Cook Islands".
The Queen's Representative in the Cook Islands
The qualification noted in Clause 1 of the Letters Patent is of central importance for when the Constitution entered into force on "Constitution Day", that is, August 4 1965, Her Majesty the Queen was represented in the Cook Islands' part of the Realm of New Zealand by the "High Commissioner of the Cook Islands" (Article 3). The High Commissioner was both representative of the Head of State as well as representative of the New Zealand Government in the Cook Islands.
The Constitution Amendment (No 10) Act 1981-82 provided that there "shall be a representative of Her Majesty the Queen in the Cook Islands, to be known as the Queen's Representative," the latter to be appointed "by Her Majesty the Queen and shall hold office for a period of three years, and may from time to time be reappointed" (Article 3).
By previous agreement between the Governments of the Cook Islands and New Zealand, when there was a High Commissioner of the Cook Islands, the appointment was made by the New Zealand Governor-General after consultation with the Government of the Cook Islands in keeping with the then quasi-diplomatic role of the High Commissioner. By convention, the appointment of the Queen's Representative is made by Her Majesty upon the recommendation of the Prime Minister of the Cook Islands.
Article 5(1) of the Constitution states clearly that the Queen's Representative is to act on the advice of Her Cook Islands Ministers:-
"except as otherwise provided in this Constitution, the [Queen's Representative] in the performance of his functions as the representative of Her Majesty the Queen shall act on the advice of Cabinet, the [Prime Minister], or the appropriate Minister as the case may be."
House of Ariki
The Constitution provides for a House of Ariki comprising up to 14 ariki appointed by the Queen's Representative, the functions of the House being to "consider such matters relative to the welfare of the people of the Cook Islands as may be submitted to it by [Parliament] for its consideration, and it shall express its opinion and make recommendations thereon to [Parliament]"
Parliament of the Cook Islands
Article 27 of the Constitution establishes "a sovereign Parliament for the Cook Islands, to be called the Parliament of the Cook Islands", consisting of 25 members (up from 22 in 1965) elected by secret ballot under a system of universal suffrage. Subject to the Constitution, Parliament "may make laws (to be known as Acts) for the peace, order and good government of the Cook Islands" (Article 39(1), including "laws having extra-territorial operation" (Article 39 (2)). Bills passed by Parliament only become law when they have been assented to by the Queen's Representative
Subject to the provisions of the Constitution, Parliament's law-making power includes "the repeal or revocation or amendment or modification or extension, in relation to the Cook Islands, of any law in force in the Cook Islands" (Article 39(3)). Amendments to the Constitution require, inter alia,
(a) at both the final vote thereon and the vote preceding that final vote, the affirmative votes of not less than two-thirds of the total membership, including vacancies, of the Parliament; and an interval of not less than 90 days between the date on which that final vote was taken and the date on which the preceding vote was taken
Sections 2 (relating to definitions) to 6 of the Cook Islands Constitution Act 1964 and Articles 2 and 41 of the Constitution are "entrenched" in that they can only be amended if the conditions in the preceding paragraph are met and the proposed amendments(s) have been supported by not less than two-thirds of the valid votes cast in a poll of the persons entitled to vote as electors at a general election of the members of Parliament (Article 41(2)). With the Cook Islands Parliament thus having the power to amend or even to repeal the above Sections and Article 2, the Cook Islands is free at any time to terminate its relationship of free association with New Zealand.
As originally enacted, Article 46 of the Constitution enabled the New Zealand Parliament to pass laws for, and with the advice and consent of, the Cook Islands. This allowed the Cook Islands, with insufficient legal resources in the early post-1965 period, to benefit from New Zealand legislation in often complicated areas (see, for example, the Extradition Act 1965 (NZ), which was applied, mutatis mutandis, to the Cook Islands under Section 18 of the Act by virtue of Article 46 of the Constitution). By 1980, however, it was considered by the Cook Islands Parliament that local resources and conditions had developed to such an extent that the above arrangement was no longer required. In accordance with Constitution Amendment (No 9) Act 1980-81, Article 46 now reads:-
"except as provided by Act of Parliament of the Cook Islands, no Act, and no provision of any Act, of the Parliament of New Zealand passed after the commencement of this Article [5 June 1981] shall extend or be deemed to extend to the Cook Islands as part of the law of the Cook Islands".