Donald Trump's erratic behaviour has led to increasing speculation that United States legislators may invoke the 25^th Amendment to the United States’ Constitution to remove him from office.  Respected media outlets like the New York Times have been openly raising questions about the President's sanity and therefore his capability to remain in office.

The 25th Amendment to the Constitution was ratified in 1967, principally to provide a mechanism for appointing a new Vice President should the Vice President succeed a President during a term of office. (When President Kennedy had been assassinated in 1963, and Vice President Lyndon Johnson replaced him, the United States was left without a Vice President until after the 1964 election when Hubert Humphrey was elected as Johnson’s running mate.) Since 1967, the provision has been used twice – first, in 1973 when Gerald Ford was appointed Vice President following the resignation of Spiro Agnew, and second, in 1974 when Nelson Rockefeller was appointed Vice President after Ford became President in the wake of Richard Nixon’s resignation.

But it is another provision of the 25^th Amendment that is attracting interest regarding President Trump’s conduct. Under section 4 of the Amendment, the Vice President and a majority of the Cabinet can declare the President unfit for office, for health or other reasons, and, with the support of the Congress, remove the President, in favour of the Vice President.  The presumption is that the provision would relate more to physical incapacity but was deliberately crafted more broadly to cope with the unlikely event of mental incapacity as well.

While considering the current United States’ situation the wider question arises of whether a provision like the 25^th Amendment should exist in New Zealand in the event of Prime Ministerial disability. New Zealand currently has no laws in this regard. Yet there have been occasions in the past where Prime Ministerial incapacity has been an issue.

The elderly Sir Joseph Ward had returned somewhat unexpectedly as Prime Minister in 1928, sixteen years after he was last in the role. He was unwell and became increasingly infirm, spending most of his time at the mineral baths in Rotorua. Ward was severely distracted from the Great Depression which began in 1929 and was eventually forced by his Cabinet colleagues to resign at the end of May 1930, less than six weeks before he died.

During 1939, Prime Minister Michael Joseph Savage became progressively ill with cancer and was increasingly unable to carry out his duties. However, because of his immense personal popularity and the onset of World War II, his colleagues, principally Deputy Prime Minister Peter Fraser and Finance Minister Walter Nash decided to hide the severity of Savage’s illness and incapacity from the public. Savage eventually died at the end of March 1940.

Throughout 1974, Prime Minister Norman Kirk was absent from the public arena for large periods of time because of various then undisclosed illnesses. Although his thin and gaunt brief appearance at the Labour Party conference in May 1974 shocked many, most of his colleagues insisted he was getting back to normal and would soon be in full charge again. His sudden death at the end of August 1974, after a further brief period of hospitalisation, stunned the country. The government had appeared to be in a state of drift during Kirk’s absences throughout the year.

These examples all related to the physical capability of the Prime Minister to carry out the job, but there has also been an instance where the judgement of a Prime Minister raised strong questions about soundness and judgement. The conduct of Sir Robert Muldoon following the 1984 election when he refused to recognise the wishes of the incoming government regarding devaluation of the currency caused his colleagues to briefly consider replacing him as Prime Minister if his obstinacy continued.

In each of these situations, the problem was resolved either through death or backdown without the need for any legislative intervention and so beg the question of whether anything like the 25^th Amendment is needed here. In the Ward, Savage and Kirk cases, it is unlikely in today’s more open and critical media environment that the severity of the Prime Ministers’ illnesses could be kept from the public in the way they were, and for as long as they were. The Muldoon case was played out over just a couple of days. In that event, had things become more prolonged and stalemated, the Governor-General’s Reserve Powers to appoint and dismiss Ministers could have been invoked to bring about a solution.

The lack of specific rules in New Zealand regarding dealing with Prime Ministerial impairment means that the issue has been largely left to constitutional conventions and political mechanisms to resolve when it arises. There have been suggestions over the years that this is inadequate and that more formal provisions are necessary, but there has been little political interest in pursuing these. It is the same in similar Parliamentary systems like Britain, Australia and Canada where it is considered that a Prime Minister’s necessity to retain the confidence of the Cabinet and Parliament is the appropriate sanction.

Because of that, and the supremacy of Parliament under our system, as well as the absence of a written constitution, the situation here is unlikely to change, whatever the ultimate fate of Donald Trump.