The 25th Amendment to the United States Constitution, adopted in 1967, regarding sudden vacancies in the office of President and Vice President also includes a complex procedure whereby the President can be removed from office in the event of incapacity, infirmity or other impairment rendering them incapable of carrying out their duties.

 

It has been used six times since, twice to fill a vacancy in the office of Vice President, and four times at the behest of Presidents undergoing a short-term medical incapacitation and standing aside temporarily in favour of the Vice President, or, in the case of President Reagan, recovering from an assassination attempt. There are unconfirmed reports that senior figures in the Democratic Party were considering last week whether the 25th Amendment could be invoked to remove President Biden from office, on the grounds of incapacity, if he did not decide to stand down as a candidate for re-election.

 

No similar provisions exist in New Zealand. Both the law and the Cabinet Manual are silent on how to deal with the situation of a Prime Minister who, for whatever reason, becomes incapable of performing their duties, and who will not stand aside. The underlying assumption is that in such situations, which are extremely rare, common sense and good judgement will prevail and that the person will come to the “right” decision and stand down.

 

However, there have been situations that have tested that touching assessment to its limits.

 

When Sir Joseph Ward returned for his second stint as Prime Minister in 1928, he was already a frail and sick man.  (During that year’s election campaign, he had famously promised to borrow £70,000,000 – about $4.3 billion in today’s values – over one year to boost the economy, instead of £7,000,000 over ten years as his notes had suggested.) By the end of 1929 he was too unwell to attend Parliament on a regular basis, and from early 1930 to even attend Cabinet meetings. He retreated to the Blue Baths health spa in Rotorua, determined to continue as Prime Minister, even though he had long lost the capability to do so. Eventually, he was persuaded by his colleagues to stand down, which he did so reluctantly at the end of May 1930, dying just a few weeks later.

During 1939, Prime Minister Savage became significantly unwell with cancer. By the end of the year, as Savage deteriorated, the effective running of the government was in the hands of Deputy Prime Minister Peter Fraser and the Minister of Finance, Walter Nash. At the same time, the government chose to actively conceal the Prime Minister’s deteriorating health from the public.

 

This led Labour rebel John A Lee to publish in late 1939 his extraordinary pamphlet “Psycho-Pathology in Politics” about how a country’s fate could be “affected by physical illness in a statesman causing mental unbalance and ill health”.  In a none-too veiled reference to the Prime Minister, he wrote “Like a child who will only play if he gets his own way, he stays in the sick room as a way of escape from problems” while “sick sycophants pour flattery upon him.”

 

In early 1940 Ministers were continuing to insist Savage was in full control of the government and making a speedy recovery from a recent operation, even though he was clearly dying. A harrowing message from him to the Labour Party conference in late March that “for about two years my life has been a lying hell” because Lee had been trying to destroy him “with all the venom and lying innuendo of the political sewer” secured Lee’s expulsion from the Party. Savage’s death just two days later, and the public outpourings of grief that followed, cemented his political canonisation.

 

During 1974, Prime Minister Kirk suffered substantial periods of illness, often necessitating his prolonged absence from the public scene, and culminating in his death in August that year. There was no suggestion that he was suffering the level of impairment of Ward or Savage during their decline, but the way in which the seriousness of the Prime Minister’s condition was downplayed to the public, especially in an era of far more open and frequent media attention, bore similarities to those earlier situations.

 

In both the Ward and Savage cases the operation of government was significantly detrimentally affected by their respective determination to carry on in the face of terminal illness. To make matters worse, Ward’s decline occurred against the backdrop of the mounting effect of the Great Depression, and Savage’s infirmity coincided with the early months of World War II. Had there been incapacity provisions in place at the time, they would have surely been applied to ensure both leaders stood aside.

 

Kirk’s case is a little different. There were periods during his absences when his deputy Hugh Watt was formally designated Acting Prime Minister in recognition of Kirk’s incapacity. However, it was always on the assumption that the Prime Minister’s absences were temporary and that he would be returning to full duties at a future point.

 

While these situations are rare, they can occur. When they do, as the Ward and Savage examples show, it is often too late and too difficult for those around the impaired leader to act, especially if that leader resists. There were signs of the potential impasse that can create in the lead-up to President Biden’s decision to stand aside, but ultimately common sense and good judgement prevailed.

 

We may not always be that lucky in New Zealand. The Cabinet Manual merely notes that “A change of Prime Minister may occur because the incumbent Prime Minister resigns, or as a result of the retirement, incapacity, or death of the incumbent Prime Minister”. However, it contains no provisions, akin to those in the United States’s 25^th Amendment, for the removal of a Prime Minister who becomes incapacitated. It may be time to remedy this omission.