Constitution of Tuvalu

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Constitution of Tuvalu

THE CONSTITUTION OF TUVALU

ARRANGEMENT OF SECTIONS

The Preamble

PART I
THE STATE AND THE CONSTITUTION

Division I - The State

1. The State
2. The area of Tuvalu

Division 2 - The Constitution

3. The Constitution as supreme law
4. Interpretation of the Constitution
5. Jurisdiction of the High Court in constitutional matters

Division 3 - Alteration of the Constitution

6. Interpretation of Division 3
7. Alteration of the Constitution generally
8. Alteration of the Constitution to give effect to UK constitutional change

PART II

BILL OF RIGHTS

Division I - Preliminary

9. Interpretation of Part II -

"court"

Division 2 - The Principles of the Bill of Rights

10. Freedom under law
11. The fundamental human rights and freedoms
12. Application of Part II
13. The Principles of the Preamble
14. Parliamentary declarations of purpose
15. "Reasonably justifiable in a democratic society"

Division 3 - Protection of the Fundamental Rights and Freedoms
Subdivision A - Protection Generally

16. Life
17. Personal liberty
18. Slavery and forced labour
19. Inhuman treatment
20. Property rights
21. Privacy of home and property
22. Protection of law
23. Freedom of belief
24. Freedom of expression
25. Freedom of assembly and association
26. Freedom of movement
27. Freedom from discrimination
28. Other rights and freedoms

Subdivision B - Special Exceptions

29. Protection of Tuvaluan values etc.
30. Provisions relating to certain officials
31. Disciplined forces of Tuvalu
32. Foreign disciplined forces
33. Hostile disciplined forces

Division 4 - Public Emergencies

34. Interpretation of Division -

"period of public emergency"

35. Declaration of public emergency
36. Restrictions on certain rights and freedoms during public emergencies
37. Detention during public emergencies

Division 5 - Enforcement of the Bill of Rights

38. Application for enforcement of the Bill of Rights
39. Questions as to the Bill of Rights arising in subordinate courts
40. Jurisdiction of the High Court as to the Bill of Rights
41. Appeals as to the Bill of Rights
42. Additional powers of the High Court as to the Bill of Rights

PART III

CITIZENSHIP

43. Interpretation of Part III
44. Initial citizenship under the Constitution
45. Citizenship by birth under the Constitution
46. Citizenship by marriage under the Constitution
47. Laws as to citizenship

PART IV
THE SOVEREIGN AND THE GOVERNOR-GENERAL

Division I - The Sovereign

48. The Sovereign of Tuvalu
49. Succession to the Crown

Division 2 - Functions of the Head of State

50. The office of Head of State
51. Functions, etc, of the Head of State generally
52. Performance of functions by the Head of State
53. Failure by the Head of State to act

Division 3 - The Governor-General

54. Establishment of office of Governor-General
55. Appointment, etc., of the Governor-General
56. Acting Governor-General
57. Oaths and affirmations by the Governor-General, etc.
58. Performance of functions by the Governor-General
59. Provision to the Governor-General of information as to the conduct of government
60. Performance of certain ceremonial, etc., functions

PART V

THE EXECUTIVE

Division 1 - The Executive Authority of Tuvalu

61. Vesting of the executive authority

Division 2 - The Ministers

62. Offices of Ministers
63. The Prime Minister
64. Removal from office of an incapacitated Prime Minister
65. Suspension of Prime Minister
66. Effect of removal or suspension of Prime Minister
67. The other Ministers
68. Acting Prime Minister
69 Acting Ministers
70. Conditions of acting appointments to Ministerial offices
71. Caretaker governments
72. Oaths and affirmations by Ministers

Division 3 - The Cabinet

73. Establishment of the Cabinet
74. Functions of the Cabinet
75. Assignment of responsibilities to Ministers
76. Proceedings in Cabinet
77. Validity of executive acts

Division 4 - Officers Associated with the Cabinet

78. The Secretary to Government
79. The Attorney-General

Division 5 - The Power of Mercy

80. Commutation, etc., of sentences

PART VI
PARLIAMENT AND LAW-MAKING

Division 1 - Parliament

81. Establishment of Parliament
82. Composition of Parliament
83. Principles of electoral apportionment

Division 2 - The Law-Making Power

84. Vesting of the law-making power
85. Delegated legislation
86. Manner of exercise of the law-making power

Division 3 - Membership of Parliament
Subdivision A - Elections

87. Nature of elections
88. Holding of elections
89. Electoral laws

Subdivision B - Electors

90. Right to vote
91. Qualifications for registration
92. Disqualification from registration

Subdivision C - Candidates

93. Candidature
94. Qualifications for election
95. Disqualification from election

Subdivision D - Members

96. Tenure of office
97. Disclosure of interest
98. Vacation of seat on sentence
99. Recall of incapacitated member

Subdivision E - Miscellaneous

100. Questions as to membership of Parliament
101. Sitting, etc., while unqualified
102. Calculation of sentences

Division 4 The Speaker

103. Establishment of the office of Speaker
104. Election of the Speaker
105. Tenure of office of the Speaker
106. Functions of the Speaker
107. Acting Speaker

Division 5 - Procedures in Parliament

108. Rules of Procedure
109. Quorum of Parliament
110. Voting in Parliament
111. Procedure on Bills, etc.

Division 6 - Miscellaneous

112. Oath and affirmation of members of Parliament
113. Validity of proceedings in Parliament
114. Privileges of Parliament
115. Clerk of Parliament and other officers

Division 7 - Summoning, Dissolution, etc.

116. Meetings of Parliament
117. Prorogation of Parliament
118. Dissolution of Parliament

PART VII
THE COURTS

Division I - General

119. The judicial system

Division 2 - The High Court

Subdivision A - Establishment, etc.

120. Establishment of the High Court
121. Composition of the High Court
122. The Chief Justice of Tuvalu
123. Other Judges
124. Qualifications of Judges
125. Remuneration. etc., of Judges
126. Tenure of office of Judges
127. Removal of Judges from office
128. Suspension of Judges
129. Completion of pending matters

Subdivision B - Jurisdiction

130. Jurisdiction of the High Court generally
131. Constitutional interpretation
132. Appellate jurisdiction of the High Court
133 Other jurisdiction, etc., of the High Court

Division 3 - The Court of Appeal

134. Establishment of the Court of Appeal
135. Jurisdiction of the Court of Appeal

Division 4 - The Sovereign in Council

136. Jurisdiction of the Sovereign in Council

PART VIII
PUBLIC EMPLOYMENT

Division I - General

137. Interpretation of Part VIII-

"personnel matter"

138. Application of Part VIII
139. The State Services
140. Creation, etc., of offices, etc., in State Services
141. Appointments subject to approval, etc.
142. Localization

Division 2 - The Public Service Commission

143. Establishment of the Commission
144. Composition of the Commission
145. Appointment of members of the Commission
146. Remuneration, etc., of members of the Commission
147. Tenure of office of members of the Commission
148. Exclusion of members of the Commission from certain employment

Division 3 - General Functions of the Public Service Commission

149. Functions of the Commission
150. Independence of the Commission
151. Appeals within State Services
152. Procedures, etc., of the Commission
153. Delegation by the Commission

Division 4 - Personnel Functions

154. Application of Division
155. The Public Service
156. Magistrates
157. The Police Force
158. Secretaries to Ministries
159 Special cases of appointments

Division 5 - Removal, etc., of Certain Officials

160 Interpretation of Division 5-

"the appropriate authority"

"member of the appropriate authority"

161. Application of Division 5
162. Removal of prescribed officials from office
163. Suspension of prescribed officials
164. Contract employment

PART IX

FINANCE

Division 1 - Parliament and Finance

165. Parliamentary responsibility for finance
166. Executive initiative
167. The Consolidated Fund
168. Accounting, etc., for public money
169. Remuneration of certain officials

Division 2 - The Auditor-General

170. Establishment of the office of Auditor-General
171. Independence of the office of Auditor-General
172. Functions of the Auditor-General

PART X
TRANSITIONAL

173. Transitional provisions

SCHEDULES-

SCHEDULE I—Rules for the Interpretation of the Constitution

1. Application of Schedule I
2. General definitions-
"act"
"Act'' or "Act of Parliament"
"alteration"
"appropriation"
"Appropriation Bill"
"the Attorney-General"
"the Auditor-General"
"Bill"
"bye-election"
"caretaker government"
"the Chief Justice"
"the Clerk of Parliament"
"committee of Parliament"
"Commonwealth country"
"the Court of Appeal"
"the Deputy Prime Minister"
"disciplinary law"
"disciplined force"
"electoral district"
"final decision"
"financial year"
"function"
"general election"
"the Government"
"governmental body"
"the Governor-General"
"the Head of State"
"the High Court"
"the Independence Constitution"
"Independence Day"
"Judge" or "Judge of the High Court"
"meeting"
"member", in relation to a disciplined force
"Minister"
"month"
"offence"
" Parliament"
"person"
"prescribed"
"the Prime Minister"
''prorogation"
"public officer''
"Public Service"
"rules of court""the Rules of Procedure of Parliament"
"the Secretary to Government" "session"
"sign"
"sitting day"
"the Sovereign"
"the Sovereign", in the sense of the Sovereign of Tuvalu
"the Sovereign", in the sense of the Sovereign of the United Kingdom
"the Sovereign in Council"
"the Speaker"
"State Service"
"subordinate court"
"superior court"
"taxation"
"the Tuvalu Police"
"the United Kingdom""writing""year"
3. Form of the Constitution
4. Meaning of language used5. Gender and number6. Time limits7. Attainment of age
8. Powers of majority, and quorums
9. References to "total membership"
10. Performance of constitutional functions
11. Appointments, etc., requiring prior approval
12. Official appointments, etc.
13. References to the Sovereign of Tuvalu
14. References to the Sovereign of the United Kingdom
15. Independence
16. Regulation of acts, etc.
17. Impracticability of obtaining advice, etc.
18. Acts in "deliberate judgment"
19. Effect of repeal
20. Effect of disallowance
21. Multiple oaths, etc.

SCHEDULE 2 - Election and Appointment of Prime Minister

1. Functions of the Governor - General
2. Election meetings
3. Nominations
4. Cancellation of proceedings
5. List of candidates
6. Quorum
7. Conduct of the election meeting
8. Conduct of the election
9. Declaration of the result
10. Disputes
11. Saving of power to dissolve

SCHEDULE 3 - Procedure, etc., of the Public Service Commission and Certain Tribunals

1. Application of Schedule 3
2. Rules
3. Voting
4. Absences, etc.
5. Powers of certain tribunals
6. Procedures generally

SCHEDULE 4 - Oaths and Affirmations

Oath, etc., of allegiance
Oath, etc., of office of Governor-General
Oath, etc., of office of member of Cabinet

SCHEDULE 5 - Transitional Provisions

1. Interpretation
2. Existing laws
3. Prescribed matters
4. The Governor-General
5. Ministers
6. Parliament
7. Public officers
8 Legal proceedings
9 Financial

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THE CONSTITUTION OF TUVALU

Preamble

WHEREAS in adopting the Independence Constitution of Tuvalu the people of Tuvalu provided in the Preamble to it as follows:-

"WHEREAS the Islands in the Pacific Ocean then known as the Ellice Islands came under the protection of Her Most Gracious Majesty Queen Victoria in September 1892 and on 12 January 1916 in conjunction with the Gilbert Islands became known as the Gilbert and Ellice Islands Colony;

"AND WHEREAS on 1 October 1975 Her Most Excellent Majesty Queen Elizabeth II was graciously pleased to establish the Ellice Islands as a separate colony under their ancient name of Tuvalu;

"AND WHEREAS the people of Tuvalu, acknowledging God as the Almighty and Everlasting Lord and giver of all good things, humbly place themselves under His good providence and seek His blessing upon themselves and their lives;

"AND WHEREAS the people of Tuvalu desire to constitute themselves as an independent State based on Christian principles, the Rule of Law, and Tuvaluan custom and tradition;

"NOW THEREFORE the people of Tuvalu hereby affirm their allegiance to Her Most Excellent Majesty Queen Elizabeth II, Her Heirs and Successors, and do hereby proclaim the establishment of a free and democratic sovereign nation.................";

AND WHEREAS the Constitution then adopted, which was given the force of law by Order in Council of Her Most Excellent Majesty dated 25 July 1978 and taking effect on 1 October 1978, provided for its amendment or replacement by Ordinance of the Parliament established by it for Tuvalu;

AND WHEREAS that Constitution has served the people of Tuvalu well since Independence but now, more than seven years since its adoption, it is time that the people of Tuvalu reconsidered it in the light of their history and their present and future needs as they see them;

NOW THEREFORE, the people of Tuvalu, having considered, as individuals, in their maneapas and island councils, and in their Parliament, what should be in their constitution, give to themselves the following Constitution:

IN SO DOING, the people of Tuvalu set out for themselves and for their governmental institutions, the following Principles:-

Principles of the Constitution

1. The principles set out in the Preamble to the Independence Constitution are re-affirmed and re-adopted.

2. The right of the people of Tuvalu, both present and future, to a full, free and happy life, and to moral, spiritual, personal and material welfare, is affirmed as one given to them by God.

3. While believing that Tuvalu must take its rightful place amongst the community of nations in search of peace and the general welfare, nevertheless the people of Tuvalu recognize and affirm, with gratitude to God, that the stability of Tuvaluan society and the happiness and welfare of the people of Tuvalu, both present and future, depend very largely on the maintenance of Tuvaluan values, culture and tradition, including the vitality and the sense of identity of island communities and attitudes of co-operation, self-help and unity within and amongst those communities.

4. Amongst the values that the people of Tuvalu seek to maintain are their traditional forms of communities, the strength and support of the family and family discipline.

5. In government and in social affairs generally the guiding principles of Tuvalu are-

agreement, courtesy and the search for consensus, in accordance with traditional Tuvaluan procedures, rather than alien ideas of confrontation and divisiveness;

the need for mutual respect and co-operation between the different kinds of authorities concerned, including the central Government, the traditional authorities, local governments and authorities, and the religious authorities.

6. The life and the laws of Tuvalu should therefore be based on respect for human dignity, and on the acceptance of Tuvaluan values and culture, and on respect for them.

7. Nevertheless, the people of Tuvalu recognize that in a changing world, and with changing needs, these principles and values, and the manner and form of their expression (especially in legal and administrative matters), will gradually change, and the Constitution not only must recognize their fundamental importance to the life of Tuvalu but also must not unnecessarily hamper their expression and their development.

THESE PRINCIPLES, under the guidance of God, are solemnly adopted and affirmed as the basis of this Constitution, and as the guiding principles to be observed in its interpretation and application at all levels of government and organized life.

PART I

THE STATE AND THE CONSTITUTION

Division I - The State

1. The State
Tuvalu is a sovereign democratic State, governed in accordance with this Constitution and in particular in accordance with the Principles set out in the Preamble.

2. The area of Tuvalu
(1) Subject to subsections (3) and (4), the area of Tuvalu consists of the land areas referred to in subsection (2), together with-

(a) the territorial sea and the inland waters as declared by law, the land beneath them, and the air space above; and

(b) such additional lands and waters as are declared by law to be part of the land area of Tuvalu.

(2) The land areas referred to in subsection (1) consist of all islands, rocks and reefs within the area bounded by-

(a) the parallel 05°S; and

(b) the meridian 180°E; and

(d) the meridian 176°E,

together with all small islands, islets, rocks and reefs depending on them.

(3) For the purpose of implementing any international agreement binding on Tuvalu and approved by Parliament by resolution for the purposes of this section, subsection (2) may be amended by Act of Parliament made in accordance with section 7 (alteration to the Constitution generally) without reference to the requirement of a special majority of votes under section 7(3) (which requires Bills to alter the Constitution to be passed by a two-thirds majority in Parliament).

(4) Nothing in this section prevents a law from proclaiming the jurisdiction of Tuvalu, complete or partial, over any area of land or water or airspace above, or prevents a law from having extra-territorial effect in accordance with section 84 (vesting of the law-making power).

Division 2 -The Constitution

3. The Constitution as supreme law
(1) This Constitution is the supreme law of Tuvalu and, subject to subsection (2), any act (whether legislative, executive or judicial) that is inconsistent with it is, to the extent of the inconsistency, void.

(2) All other laws shall be interpreted and applied subject to this Constitution, and, as far as is practicable, in such a way as to conform with it.

4. Interpretation of the Constitution
(1) The provisions of Schedule 1 (Rules for the Interpretation of the Constitution) apply for the purpose of the interpretation of this Constitution.

(2) In all cases, this Constitution shall be interpreted and applied consistently with the Principles set out in the Preamble.

(3) Subject to subsection (2), this Constitution shall be interpreted and applied in such a way as to achieve the aims of fair and democratic government, in the light of reason and experience and of Tuvaluan values.

5. Jurisdiction of the High Court in constitutional matters
The High Court has the jurisdiction in relation to the interpretation, application and enforcement of this Constitution conferred by-

(a) section 14 (Parliamentary declaration of purpose); and

(b) Division 5 of Part II (Enforcement of the Bill of Rights);

and otherwise by law.

Division 3 - Alteration of the Constitution

6. Interpretation of Division 3
In this Division, a reference to this Constitution includes a reference to any other law so far as that law alters the Constitution.

7. Alteration of the Constitution generally
(1) An Act of Parliament may alter this Constitution.

(2) A Bill for an Act to alter the Constitution must state that it is a Bill to alter this Constitution.

(3) Subject to-

(a) section 2(3) (which relates to alterations to the description of the land areas of Tuvalu); and

(b) section 8 (alterations to the Constitution to give effect to UK constitutional arrangements),

a Bill for an Act to alter this Constitution is not passed by Parliament unless it is supported at its final reading in Parliament by the votes of two-thirds of the total membership of Parliament.

(4) A Bill for an Act to alter this Constitution shall not be excluded from the operation of section 111(2) (which relates to the circulation of Bills to local governments and authorities).

8. Alteration of the Constitution to give effect to U.K. constitutional change
(1) If as a result of constitutional change in or in relation to, or affecting, the United Kingdom any provision of, or any reference in, this Constitution ceases to be appropriate, the Head of State, acting in accordance with the advice of the Cabinet, may, by order, make such alterations to this Constitution as appear to be necessary or convenient to adapt it to the new constitutional arrangements.

(2) An order under subsection (1)-

(a) shall be presented to Parliament by the Prime Minister; and

(b) unless previously confirmed, with or without modification, by an Act of Parliament, expires at the end of the second session of Parliament that commences after it is made.

(3) The requirement of a special majority of votes under section 7(3) (which requires Bills to alter the Constitution to be passed by a two-thirds majority in Parliament) does not apply in relation to a Bill for the purposes of subsection (2)(b).

(4) A Bill for the purposes of subsection (2)(b) shall not be excluded from the operation of section 111(2) (which relates to the circulation of Bills to local governments).

PART II
BILL OF RIGHTS

Division 1 - Preliminary

9. Interpretation of Part II
(1) In this Part,

"court" means a court having jurisdiction in Tuvalu, including-

(a) the Court of Appeal; and

(b) the Sovereign in Council,

but, except in sections 17 (personal liberty) and 18 (slavery and forced labour), does not include a court or tribunal established by a disciplinary law.

(2) In this Part, a reference to the national interest includes a reference to the public interest in-

(a) defence; or

(b) national security; or

(d) public order; or

(e) the protection of the international standing and reputation of Tuvalu and its products (including the supply of labour overseas);or

(f) the protection and development of Tuvaluan values and culture

(3) A reference in this Part to consent is a reference to consent whether express or implied.

(4) Where this Part requires or permits the consent of a person under the age of 18 years, the consent may be given on his behalf by one of his parents or guardians.

Division 2 - The Principles of the Bill of Rights

10. Freedom under law
(1) Freedom based on law consists of the least restriction on the activities of individuals consistent with the public welfare and the maintenance and development of Tuvalu and Tuvaluan society in accordance with this Constitution and in particular, in accordance with the Principles set out in the Preamble.

(2) Everyone has the right to freedom based on law, and accordingly, subject to this Constitution-

(a) everyone has the legal right to do anything that-

(i) does not injure others or interfere with the rights and freedoms of others; and

(ii) is not prohibited by law; and

(b) no-one may be-

(i) legally obliged to do anything that is not required by law; or

(ii) prevented by law from doing anything that complies with the provisions of paragraph (a).

(3) This section is not intended to deny the existence, nature or effect of cultural, social, civic, family or religious obligations, or other obligations of a non-legal nature, or to prevent such obligations being given effect by law if, and so far as, it may be thought appropriate to do so.

11. The fundamental human rights and freedoms
(1) Every person in Tuvalu is entitled, whatever his race, place of origin, political opinions, colour, religious beliefs or lack of religious beliefs, or sex, to the following fundamental rights and freedoms:-

(a) the right not to be deprived of life (see section 16); and

(b) personal liberty (see sections 17 and 18); and

(d) the protection of the law (see section 22); and

(e) freedom of belief (see section 23); and

(f) freedom of expression (see section 24); and

(g) freedom of assembly and association (see section 25); and

(h) protection for the privacy of his home and other property (see section 21 ); and

(i) protection from unjust deprivation of property (see section 20),

and to other rights and freedoms set out in this Part or otherwise by law.

(2) The rights and freedoms referred to in subsection (1) can, in Tuvaluan society, be exercised only-

(a) with respect for the rights and freedoms of others and for the national interest; and

(b) in acceptance of Tuvaluan values and culture, and with respect for them.

(3) The purpose of this Part is to protect those rights and freedoms, subject to limitations on them that are designed primarily to give effect to subsection (2).

12. Application of Part II
(1) Each provision of this Part applies, as far as may be-

(a) between individuals as well as between governmental bodies and individuals; and

(b) to and in relation to corporations and associations (other than governmental bodies) in the same way as it applies to and in relation to individuals,

except where, or to the extent that, the context requires otherwise.

(2) Notwithstanding anything to the contrary in any other law, any act that is done under a valid law but that in the particular case-

(a) is harsh or oppressive; or

(b) is not reasonable in the circumstances; or

(c) is otherwise not reasonably justifiable in a democratic society having a proper respect for human rights and dignity,

is an unlawful act.

(3) The burden of showing that subsection (2) applies in respect of an act is on the party claiming that it does apply.

(4) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful.

13. The Principles of the Preamble
The Principles set out in the Preamble are adopted as part of the basic law of Tuvalu, from which human rights and freedoms derive and on which they are based.

14. Parliamentary declarations of purpose
(1) When the purpose of an Act of Parliament is specifically declared in the Act, then in considering the possible effect on that Act of Division 3 (Protection of the Fundamental Rights and Freedoms) a court shall give due weight to that declaration as a statement of the considered opinion of Parliament.

(2) If an Act of Parliament specifically declares that a certain provision is required in the national interest, a court shall, subject to subsection (3), presume that the provision was reasonably required in the national interest.

(3) Subsection (2) does not apply if the High Court is satisfied that the provision could not reasonably be said to have been intended primarily to serve the national interest.

15. "Reasonably justifiable in a democratic society"
(1) Notwithstanding anything to the contrary in this Part, other than-

(a) section 33 (hostile disciplined forces); and

(b) section 36 (restrictions on certain rights and freedoms during public emergencies),

all laws, and all acts done under a law, must be reasonably justifiable in a democratic society that has a proper respect for human rights and dignity.

(2) Any question whether a law is reasonably justifiable in a democratic society that has a proper respect for human rights and dignity is to be determined in the light of the circumstances existing at the time when the decision on the question is made.

(3) Subsection (2) does not affect any question whether an act done under a law was reasonably justifiable in a democratic society that has a proper respect for human rights and dignity.

(4) A law may be declared not to be reasonably justifiable in a democratic society that has a proper respect for human rights and dignity only by the High Court or some other court prescribed for the purpose by or under an Act of Parliament.

(5) In determining whether a law or act is reasonably justifiable in a democratic society that has a proper respect for human rights and dignity, a court may have regard to-

(a) traditional standards, values and practices, as well as previous laws and judicial decisions, of Tuvalu; and

(b) law, practices and judicial decisions of other countries that the court reasonably regards as democratic; and

(d) any other matters that the court thinks relevant.

Division 3 - Protection of the Fundamental Rights and Freedoms

Subdivision A - Protection Generally

16. Life
(1) Subject to the provisions of this Part, and in particular to-

(a) subsection (2); and

(b) section 32 (foreign disciplined forces); and

(2) A person shall not be considered to have been killed in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary-

(a) for the defence of any person from violence; or

(b) for the defence of property; or

(d) for the purpose of suppressing a riot, rebellion or mutiny; or

(e) in order to prevent him from committing an offence,

or if he dies as the result of a lawful act of war.

17. Personal liberty
(1) Subject to the provisions of this Part, and in particular to-

(a) the succeeding provisions of this section; and

(b) section 31 (disciplined forces of Tuvalu); and

(d) section 33 (hostile disciplined forces); and

(e) section 36 (restrictions on certain rights and freedoms during public emergencies),

no-one shall be detained except-

(f) with his consent; or

(g) as authorized by law in the cases set out in subsection (2).

(2) Subsection (1) (g) applies in the following cases:-

(a) in the case of a person under the age of 18 years - in the reasonable exercise of the authority of a parent, teacher or guardian, or under the order of a court for the purpose of his education, welfare or proper discipline; or

(b) under a warrant or order of a court; or

(d) in order to bring the person before a court to be dealt with in accordance with law; or

(e) in the case of detention of a person on reasonable suspicion of his having committed, or being about to commit, an offence; or

(f) in the case of reasonable temporary detention of a person for the avoidance of actual or apprehended violence, disorder or breach of the peace; or

(g) in the case of reasonable temporary detention of a person so affected by drink or a drug to make detention desirable for his own protection or that of others; or

(h) in the case of detention of a person for quarantine or health purposes; or

(i) in the case of detention of a person under the laws relating to unlawful immigration or to deportation; or

(j) in the case of detention of a person incidental to the arrest or seizure of a vehicle, vessel or aircraft; or

(k) in the case of detention of a person as a prisoner of war or, subject to Division 4 (Public Emergencies), as a civil or military internee in time of war; or

(l) in the case of detention of a person required by and for the purposes of any international or multi-national convention, treaty or arrangement to which Tuvalu is a party and which is approved by Parliament, by resolution, for the purposes of this paragraph; or

(m) in the case of restrictions on liberty or detention of a person permitted by section 26 (freedom of movement) or Division 4 (Public Emergencies).

(3) A person who is detained shall be informed as soon as practicable, and in a language that he understands, of the reason for his detention.

(4) A person who is detained-

(a) for the purpose of bringing him before a court; or

(b) on reasonable suspicion of having committed, or being about to commit, an offence; or

(c) for temporary purposes, in accordance with subsection (2)(f) or (g), and who is not released, shall be brought without undue delay before a court, and unless the court, in accordance with law, orders his continued detention it shall order his release.

(5) If a person detained on suspicion of having committed an offence is not tried within a reasonable time, he shall be released either unconditionally or on reasonable conditions (including in particular conditions reasonably necessary to ensure that he appears for trial or for proceedings preliminary to trial).

(6) A release under subsection (5) does not prevent further proceedings being brought, in accordance with law, against the released person.

18. Slavery and forced labour
(1) Subject to the provisions of this Part, and in particular to-

(a) the succeeding provisions of this section; and

(b) section 32 (foreign disciplined forces); and

(d) section 36 (restrictions on certain rights and freedoms during public emergencies),

no-one shall-

(e) be held in slavery or servitude; or

(f) be required to perform forced labour.

(2) For the purposes of this section-

(a) slavery or servitude includes slavery or servitude within the meaning of any international or multinational convention or treaty prohibiting slavery or servitude to which Tuvalu is a party; and

(b) forced labour does not include-

(i) labour required by or in consequence of the sentence or order of a court; or

(ii) labour required in accordance with law of a person while he is lawfully detained that is reasonably necessary in the interests of hygiene or for the maintenance of the place where he is detained; or

(iii) labour required in accordance with law of a member of a disciplined force as a member of that force; or

(iv) in the case of a person who proves that he has a conscientious objection to compulsory service as a member of a naval, military or air force - labour which he is required by law to perform in place of such service; or

(v) labour required in accordance with law-

(A) during a period of public emergency within the meaning of Division 4 (Public Emergencies); or

(B) in the event of any other emergency or calamity that threatens the life or well-being of the community or a part of the community, to the extent that the requirement is reasonably justified for the purpose of dealing with any situation arising or existing by reason of the public emergency or the other emergency or calamity; or

(vi) in the case of a person under the age of 18 years - labour required in the reasonable exercise of the authority of a parent, teacher or guardian; or

(vii) labour reasonably required as part of reasonable and normal traditional, communal or civic obligations, including any service required in accordance with section 23(7) (which relates to the performance of certain services instead of other traditional, etc., obligations).

19. Inhuman treatment
Subject to the provisions of this Part, and in particular to-

(a) section 32 (foreign disciplined forces); and

(b) section 33 (hostile disciplined forces);

no-one shall-

(d) given inhuman or degrading punishment or treatment.

20. Property rights
(1) In this section-

"deprivation", in relation to any property, includes-

(a) the using or taking away of possession of it, or the exercise of rights over or in respect of it; and

(b) its destruction; and

(d) its transfer to another person;

"property" includes an interest in property, whether or not the interest was in existence immediately before the deprivation.

(2) Subject to the provisions of this Part, and in particular to-

(a) section 31 (disciplined forces of Tuvalu); and

(b) section 32 (foreign disciplined forces); and

no-one shall be deprived of property except-

(d) with his consent; or

(e) in accordance with the succeeding provisions of this section.

(3) The deprivation must be authorized by or under an Act of Parliament.

(4) The deprivation must be for a purpose declared by or under an Act of Parliament to be a public purpose.

(5) There must be a sufficient reason for the causing of any hardship that may result to any person having an interest in or a right over the property (whether the interest or right is present or future, actual or potential).

(6) Adequate compensation shall be promptly made.

(7) A person having an interest in or a right over the property (whether the interest or right is present or future, actual or potential) may apply to the High Court, or to any other court having jurisdiction in the matter, for the determination of-

(a) his interest or right; and

(b) the legality of the deprivation; and

and for the purpose of obtaining prompt settlement of the compensation.

(8) For the purposes of subsections (6) and (7), compensation need not be wholly or even partly in money.

(9) Nothing in or done under a law shall be considered to be inconsistent with this section-

(a) to the extent that the law makes provision for deprivation of property-

(i) in satisfaction of any liability to taxation; or

(ii) by way of penalty for a breach of the law, or of forfeiture in consequence of a breach of the law; or

(iii ) as an incident of-

(A) a permit, licence or other authority affecting the property; or

(B) the creation or acceptance of an interest in or over the property; or

(iv) in the execution of a judgment or an order of a court in proceedings for the determination of civil rights or obligations; or

(v) where it is reasonably necessary to do so because the property, or some other property, is or may be in a dangerous state or injuries to the health of humans, animals or plants; or

(vi) in consequence of a law relating to-

(A) the limitation of actions; or

(B) acquisition by prescription or adverse possession, or any similar matter; or

(vii) for so long only as is necessary for the purposes of any examination, investigation, trial or inquiry; or

(viii) in the case of land - for so long only as is necessary for the carrying out on it of-

(A) work of conservation of natural resources; or

(B) work relating to agricultural development or improvement that the owner or occupier of the land has been required, in accordance with law, to carry out and has, without reasonable excuse, failed to carry out; or

(b) to the extent that the law makes provision for depriving a person of-

(i) enemy property; or

(ii) property of-

(A) a deceased person; or

(B) a person of unsound mind; or

(D) a person who is absent from Tuvalu,

for the purpose of its administration for the benefit of the persons entitled to the benefit of it; or

(iii) property of a person declared to be insolvent, or of a body corporate in liquidation, for the purposes of its administration for the benefit of-

(A) the creditors of the insolvent or body corporate; and

(B) subject to the interests of the creditors the persons entitled to the benefit of it; or

(iv) property subject to a trust-

(A) for the purpose of vesting the property in the trustees of the property; or

(B) by order of a court - for the purpose of giving effect to the trust; or

(v) shares in a body corporate pursuant to any take-over bid, scheme of arrangement or in other similar circumstances.

(10) Nothing in this section prevents a body corporate established by a law from being deprived, in accordance with law, of any property by a person or governmental body who or which is the only investor in the body corporate.

21. Privacy of home and property
(1) Subject to the provisions of this Part, and in particular to-

(a) subsection (2); and

(b) section 31 (disciplined forces of Tuvalu); and

(d) section 33 (hostile disciplined forces); and

(e) section 36 (restrictions on certain rights and freedoms during public emergencies),

except with his consent no-one shall be subjected to-

(f) the search of his person, or

(g) the search of his property; or

(h) entry by others on his property.

(2) Nothing in or done under a law shall be considered to be inconsistent with this section to the extent that the law makes provision for search or entry for a purpose declared by or under an Act of Parliament to be a public purpose for the purposes of this section, or-

(a) for the purpose of protecting the rights or freedoms of others; or

(b) for the purpose of authorizing an officer or agent of-

(i) a governmental body; or

(ii) a body corporate established by law for a public purpose,

to enter on the property of any person-

(iii) in order to inspect the property or anything on it for the purposes of any law providing for taxation; or

(iv) in order to carry out any work connected with any thing that is lawfully on the property and that belongs to the governmental body or body corporate, as the case may be; or

(c) for the purpose of authorizing the entry on any property under an order of a court for the purpose of enforcing a judgment or order of a court; or

(d) for the purpose of authorizing the entry on any property for the purpose of-

(i) preventing or detecting the commission of an offence; or

(ii) administering, policing or enforcing a law (including a revenue law); or

(e) as permitted by section 20 (property rights).

22. Protection of law
(1) This section shall be read subject to the provisions of this Part, and in particular to-

(a) section 31 (disciplined forces of Tuvalu); and

(b) section 32 (foreign disciplined forces); and

(2) If a person is charged with an offence, unless the charge is withdrawn he shall be given a fair hearing within a reasonable time by an independent and impartial court established by law.

(3) A person charged with an offence-

(a) subject to subsection (14)(a), shall be presumed to be innocent until-

(i) he is proved guilty; or

(ii) he has pleaded guilty and the plea has been accepted by the court; and

(b) shall be informed as soon as practicable, in detail and in a language that he understands, of the precise nature and particulars of the offence charged, and if the information is not given in writing it shall be confirmed in writing as soon as practicable; and

(c) shall be given adequate time and facilities for the preparation of his defence, including time to study and fully understand the precise charge against him, and its possible consequences; and

(d) shall be given reasonable facilities to consult, at his own expense, a representative of his own choice; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a representative of his own choice; and

(f) subject to subsection (14)(b), shall be given adequate facilities-

(i) to examine, in person or by his representative, the witnesses called before the court by the prosecution; and

(ii) to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on conditions no less advantageous than those applying to witnesses called by the prosecution; and

(g) shall be permitted to have without payment the assistance of a competent interpreter, if he cannot adequately understand the language used at the trial or any part of the trial.

(4) Except with his consent, the trial shall not take place in his absence unless-

(a) he behaves in such a way as to make it impracticable or unreasonable to continue the proceedings in his presence; and

(b) the court orders his removal and the continuance of the trial in his absence.

(5) When a person is tried for an offence, the accused person or a person authorized by him for the purpose is entitled, on request and on payment of such reasonable fee (if any) as is prescribed, to be given within a reasonable time after judgment a copy, for the use of the accused person, of any record of the proceedings made by or on behalf of the court.

(6) No-one shall be convicted of an offence on account of an act that was not at the time of the doing of the act, an offence or a legal element of an offence.

(7) No penalty shall be imposed for an offence that is more severe in amount or in kind than the maximum that might have been imposed for the offence at the time when it was committed.

(8) Subject to subsection (14)(c), no-one who shows that he has been tried for an offence by a competent court and was either-

(a) convicted; or

(b) acquitted,

shall again be tried for-

(d) any other offence of which he could have been convicted at the trial of that offence,

except on the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(9) No-one shall be tried for an offence if he shows that-

(a) he has been pardoned for the offence; and

(b) if the pardon was a conditional pardon, he has complied with the conditions of the pardon.

(10) No-one who is tried for an offence shall be compelled to give evidence at the trial.

(11) A court or other adjudicating authority prescribed by law for the determination of the existence or extent of a civil right or obligation shall be-

(a) established or recognised by law; and

(b) independent and impartial,

and where proceedings for such a determination are instituted by a person before such a court or authority the case shall be given a fair hearing within a reasonable time.

(12) Subject to subsection (13), except with the consent of all the parties to the proceedings-

(a) all proceedings before a court; and

(b) all proceedings before any other adjudicating authority for the determination of the existence or extent of any civil right or obligation,

including the announcement of the decision, shall be held m public.

(13) Subsection (12) does not prevent the court or other authority from excluding from the proceedings persons other than the parties, and the representatives in the proceedings of the parties, to such extent as the court or authority-

(a) is by law empowered to do so and thinks it necessary or desirable to do so-

(i) if publicity would not be in the interests of justice; or

(ii) in interlocutory proceedings, that is to say, in proceedings of a kind described in subsection (16); or

(iii) in the interests of-

(A) decency; or

(B) public morality; or

(D) the protection of the privacy of persons concerned in the proceedings; or

(b) is by law empowered or required to do so in the interests of-

(i) defence; or

(ii) public safety; or

(iii) public order.

(14) Nothing in or done under a law shall be considered to be inconsistent with-

(a) subsection (3)(a) - to the extent that the law imposes upon a person charged with an offence the burden of proving or disproving certain facts which are particularly within his knowledge or his capacity to prove or disprove; or

(b) subsection (3)(f) - to the extent that the law imposes reasonable conditions that must be satisfied if witnesses called on behalf of an accused person are to be paid expenses out of public funds; or

(c) subsection (8) - subject to subsection (15), to the extent that the law authorizes a court to try a member of a disciplined force even though he has been tried and either-

(i) convicted; or

(ii) acquitted,

under the disciplinary law of that force.

(15) In a case to which subsection 14(c) applies, the court that tries the member shall, in sentencing him to punishment, take into account any punishment given to him under the disciplinary law.

(16) In subsection (13)(a)(ii), "interlocutory proceedings" refers to any judicial proceedings that-

(a) occur during or for the purposes of some other legal proceedings (referred to in this subsection as "the principal proceedings"); and

(b) are incidental to the principal proceedings; and

23. Freedom of belief
(1) Subject to the provisions of this Part, and in particular to—

(a) the succeeding provisions of this section; and

(b) section 29 (protection of Tuvaluan values, etc.); and

(d) section 32 (foreign disciplined forces); and

(e) section 33 (hostile disciplined forces); and

(f) section 36 (restrictions on certain rights and freedoms during public emergencies),

except with his consent no-one shall be hindered in the exercise of his freedom of belief.

(2) For the purposes of this section, freedom of belief includes-

(a) freedom of thought, religion and belief; and

(b) freedom to change religion or belief; and

(c) freedom, either alone or with others, to show and to spread, both in public and in private, a religion or belief, in worship, teaching, practice and observance.

(3) A religious community is entitled, at its own expense-

(a) to establish and maintain places of education; and

(b) subject to the maintenance of any minimum prescribed educational standards, to manage any place of education that it wholly maintains; and

(c) subject to subsection (4), to provide religious instruction for members of the community in the course of any education that it provides.

(4) Except with his consent, no-one attending a place of education shall be required-

(a) to receive religious instruction; or

(b) to take part in or attend a religious ceremony or observance, if the instruction, ceremony or observance relates to a religion or belief other than his own.

(5) No-one shall be compelled-

(a) to take an oath or make an affirmation that is contrary to his religion or belief; or

(b) to take an oath or make an affirmation in any manner that is contrary to his religion or belief.

(6) Nothing in or done under a law shall be considered to be inconsistent with this section to the extent that the law makes provision which is reasonably required-

(a) in the interests of-

(i) defence; or

(ii) public safety; or

(iii) public order; or

(iv) public morality; or

(v) public health; or

(b) for the purpose of protecting the rights or freedoms of other persons, including the right to observe and practice any religion or belief without the unsolicited intervention of members of any other religion or belief.

(7) Nothing in or done under a law shall be considered to be inconsistent with this section to the extent that the law makes reasonable provision-

(a) requiring a person who proves that he has a conscientious objection to performing some reasonable and normal traditional, communal or civic obligation, or to performing it at a particular time or in a particular way, to perform instead, some reasonably equivalent service of benefit to the community; or

(b) for the exclusion of such a person and his household from any benefit arising out of the performance of those obligations by others until the equivalent service has been performed.

(8) The protection given by this section to freedom of religion or belief applies equally to freedom not to have or hold a particular religion or belief, or any religion or belief.

(9) A reference in this section to a religion includes a reference to a religious denomination and to the beliefs of a religion or religious denomination.

24. Freedom of expression
(1) Subject to the provisions of this Part, and in particular to-

(a) subsection (3); and

(b) section 29 (protection of Tuvaluan values, etc.); and

(d) section 31 (disciplined forces of Tuvalu); and

(e) section 32 (foreign disciplined forces); and

(f) section 33 (hostile disciplined forces); and

(g) section 36 (restrictions on certain rights and liberties during public emergencies),

except with his consent no-one shall be hindered in the exercise of his freedom of expression.

(2) For the purposes of this section, freedom of expression includes-

(a) freedom to hold opinions without interference; and

(b) freedom to receive ideas and information without interference; and

(d) freedom from interference with correspondence.

(3) Nothing in or done under a law shall be considered to be inconsistent with subsection (1) to the extent that the law makes provision-

(a) in the interests of-

(i) defence; or

(ii) public safety; or

(iii) public order; or

(iv) public morality; or

(v) public health; or

(b) for the purpose of-

(i) protecting the reputations, rights or freedoms of other persons; or

(ii) protecting the privacy of persons concerned in legal proceedings; or

(iii) preventing the disclosure of information received in confidence; or

(iv) maintaining the authority or independence of the courts; or

(v) regulating the administration or the technical operation of posts or telecommunications.

25. Freedom of assembly and association
(1) Subject to the provisions of this Part and in particular to-

(a) subsection (3); and

(b) section 29 (protection of Tuvaluan values, etc.); and

(d) section 31 (disciplined forces of Tuvalu); and

(e) section 32 (foreign disciplined forces); and

(f) section 33 (hostile disciplined forces); and

(g) section 36 (restrictions on certain rights and freedoms during public emergencies),

except with his consent no-one shall be hindered in the exercise of his freedom of assembly and association.

(2) For the purposes of this section, freedom of assembly and association includes-

(a) the right to assemble freely and to associate with other persons; and

(b) the right to form or belong to political parties, and

(c) the right, as regulated by law, to form or belong to trade unions or other associations for the protection or advancement of one's interests.

(3) Nothing in or done under a law shall be considered to be inconsistent with subsection (1) to the extent that the law makes provision-

(a) in the interests of-

(i) defence; or

(ii) public safety; or

(iii) public order; or

(iv) public morality; or

(v) public health; or

(b) for the purpose of protecting the rights or freedoms of other persons.

26. Freedom of movement
(1) Subject to the provisions of this Part, and in particular to-

(a) the succeeding provisions of this section; and

(b) section 30 (provisions relating to certain officials); and

(d) section 32 (foreign disciplined forces); and

(e) section 33 (hostile disciplined forces); and

(f) section 36 (restrictions on certain rights and freedoms during public emergencies),

no-one shall be deprived of-

(g) the right to move freely throughout Tuvalu; or

(h) the right to reside anywhere in Tuvalu; or

(i) the right to enter and to leave Tuvalu,

and no-one shall be expelled from Tuvalu.

(2) No restriction on the rights of a person under subsection (1) that is involved in his lawful detention shall be considered to be inconsistent with that subsection.

(3) Nothing in or done under a law shall be considered to be inconsistent with subsection (1) to the extent that the law makes provision-

(a) in respect of-

(i) the entry into Tuvalu of a person who is not a citizen of Tuvalu; or

(ii) the movement within Tuvalu of a person referred to in subparagraph (i); or

(iii) the residence in Tuvalu of a person referred to in subparagraph (i); or

(iv) the exclusion or expulsion from Tuvalu of a person referred to in subparagraph (i); or

(b) for the imposition of restrictions on-

(i) the movement within Tuvalu, or the residence in Tuvalu, of any person; or

(ii) the right of any person to leave Tuvalu,

that are reasonably required in the interests of-

(iii) defence; or

(iv) public safety; or

(v) public order; or

(i) the movement within, Tuvalu or the residence in Tuvalu; or

(ii) the right to leave Tuvalu,

of persons generally or of any class of persons, being restrictions that are reasonably required in the interests of-

(iii) defence; or

(iv) public safety; or

(v) public order; or

(vi) public morality; or

(vii) public health; or

(viii) conservation of the environment; or

(d) imposing restrictions on-

(i) the movement within Tuvalu; or

(ii) the residence in any part of Tuvalu,

of any class of person where such restrictions are reasonably required to meet the special circumstances of a part of Tuvalu, for example-

(iii) overcrowding or potential overcrowding; or

(iv) a shortage or potential shortage of resources; or

(v) the disruption or potential disruption of the local economy, ecology or distinctive culture; or

(e) for the imposition of restrictions on the use of any land in Tuvalu; or

(f) for the imposition of restrictions on the right of any person to leave, or move within, Tuvalu, in order to secure the fulfilment of any obligation imposed on him by law; or

(g) for the imposition of restrictions on the movement within Tuvalu, or the residence in Tuvalu, of a person in circumstances that would justify depriving him of his liberty under section 17 (personal liberty).

(4) If a person whose rights under subsection (1) have been restricted by virtue only of a law to which subsection (3)(b) applies so requests at any time-

(a) during the period of restriction; and

(b) not earlier than six months after he last made such a request during that period,

his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person who-

(d) is appoi