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Tuvalu Consolidated Legislation |
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
--------------------------------------------------------------------------
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
(c) the parallel 11°S ; 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);
(c) section 131 (constitutional interpretation),
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
(c) public safety; 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
(c) security for his person (see sections 18 and 19); 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
(c) international conventions, declarations, recommendations and judicial decisions concerning human rights; 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
(c) section 33 (hostile disciplined forces), no-one shall be killed intentionally.
(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
(c) in order to effect a lawful arrest or to prevent the escape of any person lawfully detained; 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
(c) section 32 (foreign disciplined forces); 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
(c) for the purposes of extradition; 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
(c) section 33 (hostile 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-
(c) be tortured; or
(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
(c) the making of it useless or valueless for the purposes for which it was used; 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
(c) section 33 (hostile disciplined forces),
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
(c) the compensation due under subsection (6),
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
(C) any survey to determine the existence or extent of mineral (including petroleum) resources; 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
(C) a person who has not attained the age of 18 years; 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
(c) section 32 (foreign disciplined forces); 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
(c) section 33 (hostile disciplined forces).
(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-
(c) the same offence; or
(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
(C) the welfare of persons under the age of 18 years; 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
(c) do not finally dispose of the principal proceedings.
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
(c) section 31 (disciplined forces of Tuvalu); 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
(c) section 30 (provisions relating to certain officials); 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
(c) freedom to communicate 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
(c) section 30 (provisions relating to certain officials); 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
(c) section 31 (disciplined forces of Tuvalu); 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
(c) for the imposition of restrictions on-
(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-
(c) is qualified to practise before the High Court; and
(d) is appointed by the Chief Justice for the purpose.
(5) On a review under
subsection (4) the tribunal may make to the appropriate authority
recommendations concerning the necessity or
desirability of continuing the
restriction, but unless it is otherwise provided by law that authority is not
obliged to act in accordance
with any such
recommendation.
27.
Freedom from discrimination
(1) In
this section, discrimination refers to the treatment of different people in
different ways wholly or mainly because of their
different-
(a) races; or
(b) places of origin; or
(c) political opinions; or
(d) colours; or
(e) religious beliefs or lack of religious beliefs,
in such a way that one such
person is for some such reason given more favourable treatment or less
favourable treatment than another
such
person.
(2) 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
(c) section 32 (foreign disciplined forces); and
(d) section 33 (hostile disciplined forces); and
(e) section 36 (restrictions on certain rights and freedoms during public emergencies),
no-one shall be treated in a
discriminatory manner.
(3)
Subsection (2) does not apply to a law so far as it makes
provision-
(a) for the imposition of taxation by the Government or a local government or authority; or
(b) the spending of money by the Government or a local government or authority; or
(c) with respect to persons who are not citizens of Tuvalu; or
(d) in respect of-
(i) adoption: or
(ii) marriage; or
(iii) divorce; or
(iv) burial; or
(v) any other such matter,
in accordance with the personal law, beliefs or customs of any person or group; or
(e) in relation to land; or
(f) by which any person or group may be given favourable treatment or unfavourable treatment which, having regard to the nature of the treatment and to any special circumstances of the person or group, is reasonably justifiable in a democratic society having a proper respect for human rights and dignity.
(4) Nothing in a law shall be
considered to be inconsistent with subsection (2) to the extent that it makes
provision for-
(a) standards or qualifications (not specifically related to any matter referred to in subsection (1)(a)-(e)) for appointment to any office or position in-
(i) a State Service; or
(ii) a disciplined force; or
(iii) the service of a local government or authority; or
(iv) a body corporate established by law for a public purpose, or the service of such a body; or
(b) localization within the meaning of section 142 (localization).
(5) Subsection (2) does not
affect the exercise of any discretion relating to the institution, conduct or
discontinuance in a court
of any proceedings that is vested in any person or
authority by or under this Constitution or any other
law.
(6) Nothing in or done under
a law shall be considered to be inconsistent with subsection (2) to the extent
that the law provides
that any person may be subjected to any restriction on the
rights and freedoms guaranteed by-
(a) section 21 (privacy of home and property); and
(b) section 23 (freedom of belief); and
(c) section 24 (freedom of expression); and
(d) section 25 (freedom of assembly and association); and
(e) section 26 (freedom of movement); and
(f) section 28 (other rights and freedoms)
to the extent authorized by
that section.
(7) Subject to
section 12(2) (which
relates to harsh, oppressive or otherwise unlawful
acts) and 15
(definition of
"reasonably justifiable in a democratic
society") and to any other law, no act
that-
(a) is in accordance with Tuvaluan custom; and
(b) is reasonable in the circumstances,
shall be considered to be
inconsistent with subsection
(2).
(8) Nothing in or done under
a law shall be considered to be inconsistent with subsection (2)-
(a) if the law was in force in Tuvalu immediately before the date on which this Constitution took effect; or
(b) to the extent that the law repeals and re-enacts any provision that has been contained in a law in force in Tuvalu at all times since that date.
28.
Other rights and freedoms
The fact
that certain rights and freedoms are referred to in this Constitution does not
mean that there may not be other rights and
freedoms retained by the people or
conferred by law.
Subdivision B - Special Exceptions
29.
Protection of Tuvaluan values, etc.
(1) The Preamble acknowledges that
Tuvalu is an Independent State based on Christian principles, the Rule of Law,
Tuvaluan values,
culture and tradition, and respect for human
dignity.
(2) This includes
recognition of-
(a) the right to worship, or not to worship, in whatever way the conscience of the individual tells him; and
(b) the right to hold, to receive and to communicate opinions, ideas and information.
(3) Within Tuvalu, the
freedoms of the individual can only be exercised having regard to the rights or
feelings of other people, and
to the effect on
society.
(4) It may therefore be
necessary in certain circumstances to regulate or place some restrictions on the
exercise of those rights,
if their exercise-
(a) may be divisive, unsettling or offensive to the people; or
(b) may directly threaten Tuvaluan values or culture.
(5) Subject to section 15
(definition of
"reasonably justifiable in a democratic
society") nothing contained in a law or
done under a law shall be considered to be inconsistent with section 23
(freedom of
belief) or 24
(freedom of
expression) to the extent that the law
makes provision regulating or placing restrictions on any exercise of the
right-
(a) to spread beliefs; or
(b) to communicate opinions, ideas and information;
if the exercise of that right
may otherwise conflict with subsection
(4).
30.
Provisions relating to certain
officials
(1) Subject to section 15
(definition of
"reasonably justifiable in a democratic
society") nothing in-
(a) section 24 (freedom of expression); or
(b) section 25 (freedom of assembly and association); or
(c) section 26 (freedom of movement),
prevents the inclusion in the
terms and conditions of employment of any member of a State Service of
reasonable requirements, related
to his office or position in that Service, as
to-
(d) his communications or associations with other persons; or
(e) his movements or residence.
(2) The terms and conditions
of employment referred to in subsection (1) include-
(a) all terms and conditions that are applicable to or in relation to a member of a State Service while he is a member of the Service; and
(b) all terms and conditions related to membership of the service that are applicable to or in relation to a former member of a State Service; and
(c) all terms and conditions of a kind referred to in paragraph (a) or (b) that are applicable to or in relation to him because of his consent.
(3) Subsection (1) and (2)
apply whether a term or condition of employment is contained in-
(a) a contract or agreement of employment (whether written or oral); or
(b) an Act of Parliament, or any regulation or other subsidiary legislation made under an Act; or
(c) general administrative orders or any similar instruction or instrument,
that is applicable to or in
relation to
him.
31.
Disciplined forces of Tuvalu
Subject
to section 15
(definition of
"reasonably justifiable in a democratic
society",), in relation to a person who
is a member of a disciplined force of Tuvalu nothing contained in or done under
the disciplinary law
of that force shall be considered to be inconsistent with
any provision of Subdivision A of this Division, other than-
(a) section 16 (life); or
(b) section 18 (slavery and forced labour); or
(c) section 19 (inhuman treatment).
32.
Foreign disciplined forces
In relation
to a person who-
(a) is a member of a disciplined force of a foreign country or is, as recognized by or under an Act of Parliament, a person otherwise subject to the disciplinary law of such a force; and
(b) is present in Tuvalu under arrangements made between the Government of Tuvalu and the Government of another country or an international organization,
nothing contained in the
disciplinary law of that force shall be considered to be inconsistent with any
provision of this
Part.
33.
Hostile disciplined forces
Nothing
done in relation to a person who is a member of a disciplined force of a country
with which Tuvalu is at war, and no law,
to the extent that it authorizes the
doing of any such thing shall be considered to be inconsistent with any
provision of this Part.
Division 4 - Public Emergencies
34.
Interpretation of Division 4
In this
Division-
"period of public
emergency" means a period throughout which-
(a) Tuvalu is at war; or
(b) there is in effect a proclamation under section 35 (declaration of public emergency).
35.
Declaration of public emergency
(1)
The Head of State, acting in accordance with the advice of the Prime Minister,
may by proclamation declare that a state of public
emergency exists in Tuvalu,
or in a part of Tuvalu specified in the
proclamation.
(2) Unless earlier
revoked, a proclamation under subsection (1) lapses at the expiration
of-
(a) three days; or
(b) if it was made when Parliament is not meeting - 14 days,
after the date on which it is
made, unless it is approved in the meantime by Parliament by
resolution.
(3) An approval under
subsection (2) remains in force for such period, not exceeding six months, as is
specified in the resolution
granting the approval, and may be extended by
further resolution from time to time for such period or periods, each not
exceeding
six months, as is or are specified in any such further resolution or
resolutions.
36.
Restrictions on certain rights and freedoms during public emergencies
Nothing in or done under a law shall
be considered to be inconsistent with-
(a) section 16 (life); or
(b) section 17 (personal liberty); or
(c) section 21 (privacy of home and property); or
(d) section 23 (freedom of belief); or
(e) section 24 (freedom of expression); or
(f) section 25 (freedom of assembly and association); or
(g) section 26 (freedom of movement); or
(h) section 27 (freedom from discrimination),
to the extent that the
law-
(i) makes any provision, in relation to a period of public emergency; or
(j) authorizes the doing, during any such period, of any thing, that is reasonably justifiable for the purpose of dealing with any situation that arises or exists during that period.
37.
Detention during public
emergencies
(1) If a person is
detained by virtue of a law authorized only by section 36
(restrictions on
certain rights and freedoms during public
emergencies)-
(a) he shall, as soon as practicable and in any case not more than 10 days after the beginning of his detention, be furnished with a written statement, in a language that he understands, stating in detail the grounds on which he is detained; and
(b) not more than 14 days after the beginning of his detention a notice shall be published-
(i) in the manner prescribed for the publication of subordinate legislation; and
(ii) in such other manner (if any) as is directed by the Chief Justice; and
(c) not more than one month after the beginning of his detention, and afterwards at intervals of not more than six months, his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person who-
(i) is qualified to practise before the High Court; and
(ii) is appointed by the Chief Justice for the purpose; and
(d) he shall be given reasonable facilities to consult, at his own expense, a representative of his own choice, who shall be permitted to advise and assist him and to make representations to the tribunal; and
(e) at the hearing of the case he shall be permitted to appear in person or, at his own expense, by a representative of his own choice.
(2) On a review under
subsection (1)(c), the tribunal may make recommendations to the authority that
detained him concerning the necessity
or desirability of continuing the
detention, but unless it is otherwise provided by law that authority is not
obliged to act in accordance
with any such
recommendation.
(3) A failure to
comply with subsection (1)(b) does not invalidate the detention.
Division 5 - Enforcement of the Bill of Rights
38.
Application for enforcement of the Bill of
Rights
(1) In accordance with any
rules of court made for the purposes of this Division, if any person claims that
any of the provisions
of this Part-
(a) has been; or
(b) is being; or
(c) is likely to be,
contravened or not complied
with in relation to him, he may apply to the High Court under this
Division.
(2) In the case of a
person who is being detained, an application under subsection (1) may be
made-
(a) by the person himself; or
(b) by any other person on his behalf.
(3) Nothing in subsection (1)
or (2) prevents any other action that may be taken under any other law in
respect of the
contravention.
39.
Questions as to the Bill of Rights arising in subordinate
courts
If in any proceedings in a
subordinate court a question arises as to a contravention of any of the
provisions of this Part, the court
may, and shall if a party to the proceedings
so requests, refer the question to the High Court unless, in the opinion of the
court,
the question raised is frivolous or
vexatious.
40.
Jurisdiction of the High Court as to the Bill of
Rights
(1) The High Court has original
jurisdiction-
(a) to determine any application made under section 38 (application for enforcement of the Bill of Rights); and
(b) to determine any question referred to it under section 39 (questions as to the Bill of Rights arising in subordinate courts),
and may make any orders, issue
any writs and give any directions that it thinks appropriate for enforcing or
securing the enforcement
of this
Part.
(2) The High Court may
refuse to exercise its powers under subsection (1) if it is satisfied that
adequate means of redress for the
alleged contravention are or have been
reasonably available to the person concerned under any other
law.
41.
Appeals as to the Bill of Rights
(1)
Subject to subsection (2), an appeal may be made, in accordance with Part VII
(The
Courts), against any determination of the
High Court under this
Division.
(2) There is no appeal
against a determination dismissing an application on the ground that it is
frivolous or
vexatious.
42.
Additional powers of the High Court as to the Bill of
Rights
An Act of Parliament may confer
on the High Court powers, additional to those conferred by the preceding
provisions of this Division,
for the purpose of enabling the Court to exercise
more effectively the jurisdiction conferred on it by this Division
PART
III
CITIZENSHIP
43.
Interpretation of Part III
(1) For the
purposes of this Part, a person born on board-
(a) a registered vessel or aircraft; or
(b) an unregistered vessel or aircraft of the Government of any country,
shall be considered to have
been born-
(c) in the place where the vessel or aircraft was registered; or
(d) in that country,
as the case may be.
(2) For the purposes of this
Part, a foundling discovered at any time in Tuvalu shall, in the absence of
proof to the contrary, be
considered to have been born in
Tuvalu.
44.
Initial citizenship under the
Constitution
Every person who,
immediately before the date on which this Constitution took effect, was a
citizen of Tuvalu by virtue of-
(a) Chapter III (Citizenship) of the Independence Constitution; or
(b) the Citizenship Ordinance 1979,
is as at that date a citizen
of Tuvalu for the purposes of this
Constitution.
45.
Citizenship by birth
(1) Subject to
subsections (3) and (4), a person born in Tuvalu on or after the date on which
this Constitution took effect is a citizen
of Tuvalu by
birth.
(2) A person born outside
Tuvalu on or after the date on which this Constitution took effect is a citizen
of Tuvalu by birth if on
the date of his birth either of his parents is, or
would but for his death have been, a citizen of
Tuvalu.
(3) Subject to subsection
(5), a person does not become a citizen of Tuvalu by virtue of subsection (1) if
at the time of his birth-
(a) neither of his parents was a citizen of Tuvalu; and
(b) his father had the privileges and immunities of an envoy to Tuvalu from a country with which Tuvalu had diplomatic relations.
(4) Subject to subsection (5),
a person does not become a citizen of Tuvalu by virtue of subsection (1) if at
the time of his birth-
(a) his father was a citizen of a country with which Tuvalu was at war; and
(b) the birth occurred in a place in Tuvalu occupied by that country.
(5) In the case of a person
who was born out of wedlock, a reference in subsection (3) or (4) to his father
shall be read as a reference
to his
mother.
46.
Citizenship by marriage under the
Constitution
(1) Subject to subsection
(2), a person who, on or after the date on which this Constitution took effect,
marries a person who is
or becomes a citizen of Tuvalu is entitled, on making
application in such manner as is prescribed by law, to be registered as a
citizen
of Tuvalu.
(2) The right
conferred by subsection (1) may be made subject to such exceptions and
qualifications as are declared by law to be in
the interests of national
security or public
policy.
47.
Laws as to citizenship
(1) An Act of
Parliament may make provision-
(a) for the acquisition of citizenship of Tuvalu by persons who are not otherwise eligible to become citizens of Tuvalu by virtue of this Part; or
(b) for the renunciation by any person of his citizenship of Tuvalu; or
(c) for the maintenance of a register of citizens of Tuvalu who are also citizens or nationals of another country; or
(d) subject to subsection (2), for depriving any person of his citizenship of Tuvalu,
and generally for carrying
into effect the purposes of. this
Part.
(2) Subsection (1)(d) does
not apply to a person who-
(a) became a citizen automatically on Independence Day, by virtue of section 19 (persons who became citizens on independence Day) of the Independence Constitution; or
(b) became a citizen by birth under-
(i) section 22 (persons born in Tuvalu after the day prior to Independence Day) of the Independence Constitution; or
(ii) section 23 (persons born outside Tuvalu after the day prior to independence Day) of the Independence Constitution; or
(iii) section 45 (citizenship by birth) of this Constitution.
PART
IV
THE SOVEREIGN
AND THE GOVERNOR-GENERAL
Division 1 - The Sovereign
48. The
Sovereign of Tuvalu
(1) Her Majesty
Queen Elizabeth II, by the grace of God Queen of the United Kingdom of Great
Britain and Northern Ireland and of Her
Other Realms and Possessions, Head of
the Commonwealth, Defender of the Faith, having at the request of the people of
Tuvalu graciously
consented, is the Sovereign of Tuvalu and, in accordance with
this Constitution, the Head of
State
(2) The Royal Style and
Titles are as determined by Act of Parliament.
(By
Act 1 of 1987 (Cap.10) the following style and title was approved "Elizabeth the
Second, by the Grace of God Queen of Tuvalu and
of Her other Realms and
Territories, Head of the Commonwealth".)
49.
Succession to the Crown
The provisions
of this Constitution referring to the Sovereign extend, in accordance with
section 13
(references to the
Sovereign of Tuvalu) of Schedule 1, to
the Heirs and Successors of the Sovereign according to law.
Division 2 - Functions of the Head of State
50. The
office of Head of State
In addition to
the other functions of the office, the office of Head of State is a symbol of
the unity and identity of Tuvalu, and
the Head of State is entitled to proper
respect
accordingly.
51.
Functions, etc., of the Head of State
generally
(1) The only privileges and
functions of the Head of State are those prescribed as
such.
(2) Subject to this
Constitution and to any Act of Parliament, the privileges and functions of the
Sovereign as Head of State may
be had and performed through a Governor-General
appointed in accordance with Division 3 (the Governor-General) and, except where
the context requires otherwise, references in any law to the Head of State shall
be read as including a reference to the
Governor-General.
52.
Performance of functions by the Head of
State
(1) Subject to section 17
(impracticability of
obtaining advice, etc.) of Schedule 1, in
the performance of his functions under this Constitution or any other law the
Head of State shall act only in accordance
with the advice of-
(a) the Cabinet; or
(b) the Prime Minister or another Minister acting under the general or special authority of the Cabinet,
except where he is required to
act-
(c) in accordance with the advice of any other person or authority (in which case he shall act only in accordance with that advice); or
(d) after consultation with any person or authority, including the Cabinet (in which case he shall act only after such consultation); or
(e) in his own deliberate judgment (in which case he shall exercise an independent discretion),
or where this Constitution
obliges or specifically permits him to act in a particular
way.
(2) When the Head of State is
required or permitted by this Constitution or any other law to act in accordance
with the advice of,
or after consultation with, any person or authority, no
question-
(a) whether he received the advice; or
(b) whether he has the consultation and the nature of the consultation; or
(c) what advice (if any) he was given; or
(d) by whom he was advised or whom he consulted,
shall be considered in any
court.
53.
Failure by the Head of State to
act
(1) Subject to subsection (2),
if-
(a) the Head of State is required by this Constitution or by or under an Act of Parliament to perform any function in accordance with the advice of any person or authority; and
(b) he does not so act within a period of seven days after the advice is received by him, or by a person authorized by him to receive such advice,
he shall be considered to have
acted in accordance with the
advice.
(2) If the person or
authority giving the advice-
(a) certifies to the Head of State that the matter is urgent; and
(b) requests him to act in accordance with the advice within a specified period of less than seven days,
the reference in subsection
(1) to a period of seven days shall be read as a reference to that specified
period.
(3) If the Head of State
is required by this Constitution or by or under an Act of Parliament to perform
any function otherwise than-
(a) in accordance with the advice of any person or authority; or
(b) in his own deliberate judgment,
and if at any time after the
occasion for the performance of the function has arisen he has not so acted he
shall be considered to
have acted as
required.
(4) An Act of Parliament
may make provision as to the proof of matters referred to in this section, and
of acts considered to have
been done by virtue of this section.
Division 3 - The Governor-General
54.
Establishment of office of
Governor-General
(1) An office of
Governor-General of Tuvalu is
established.
(2) The
Governor-General is the representative of the
Sovereign.
55.
Appointment, etc., of the
Governor-General
(1) The
Governor-General shall be appointed, and may be removed from office at any time
(with or without cause), by the Sovereign,
acting in accordance with the advice
of the Prime Minister given after the Prime Minister has, in confidence,
consulted the members
of
Parliament.
(2) A person is not
qualified to be appointed Governor-General unless-
(a) he has attained the age of 50 years; and
(b) he has not attained the age of 65 years; and
(c) he is otherwise qualified to be elected as a member of Parliament.
(3) The Governor-General
vacates his office-
(a) on death; or
(b) if he is removed from office under subsection (1); or
(c) when he attains the age of 65 years; or
(d) subject to subsection (4), if he resigns by notice in writing to the Speaker; or
(e) if he ceases to be otherwise qualified to be elected as a member of Parliament; or
(f) at the end of the period of four years after the date of his appointment.
(4) A resignation under
subsection (3)(d) takes effect on the day on which it is received by the
Speaker, or on such later date as
is agreed between the Governor-General and the
Prime
Minister.
56.
Acting Governor-General
(1)
Where-
(a) the office of Governor-General is vacant; or
(b) the Governor-General is-
(i) absent from Tuvalu; or
(ii) for any other reason unable to perform any of the functions of his office,
the functions of the
Governor-General or the relevant parts of those functions shall be performed
by-
(c) a person appointed in accordance with subsection (2); or
(d) in the absence of a person appointed in accordance with subsection (2) who is able to perform those functions - the Speaker.
(2) For the purposes of
subsection (1)(c), an appointment shall be made in the same way as the
appointment of a Governor-General under
section 55
(appointment, etc.,
of Governor-General,) and the provisions
of that section, with the necessary modifications, apply, provided that any oath
or affirmation required under
section 57
(oaths and
affirmation by the Governor-General, etc)
may be taken or made before the
Governor-General.
(3) No question
whether the need for the performance of any function of the Governor-General by
another person (including the Speaker)
in accordance with subsection (1) has
arisen, or has ceased, shall be considered in any
court.
57.
Oaths and affirmation by the Governor-General,
etc.
(1) Before entering on the duties
of his office the Governor-General shall take an oath, or make an affirmation,
of allegiance, and
take the relevant oath, or make the relevant affirmation, of
office, in the forms respectively set out in Schedule 4, and before
performing
under section 56(1)
(acting
Governor-General) any of the functions of
the Governor-General the person referred to in section 56(1)(c)
(which relates to the
appointment of an acting
Governor-General) or the Speaker, as the
case may be, shall do the
same.
(2) The oaths and
affirmations shall be taken or made before the Chief Justice or a person
appointed by the Chief Justice for the
purpose.
58.
Performance of functions by the
Governor-General
(1) Subject to any
Act of Parliament, the Governor-General shall perform the functions of the Head
of State when the Sovereign is-
(a) outside Tuvalu; or
(b) incapacitated; or
(c) under age.
(2) No question whether
the conditions prescribed by or under subsection (1) apply shall be considered
in any court.
(3) No question
whether in performing a function as Head of State the Governor-General is acting
in accordance with the will, opinion
or decision of the Sovereign shall be
considered in any court, and-
(a) except to the extent implied by sections 55 (appointment, etc., of Governor-General) and 56 (acting Governor-General) the Sovereign has no power to give directions to the Governor-General; and
(b) there is no right of appeal or petition to the Sovereign from or against the performance of a function by the Governor-General.
59.
Provision to the Governor-General of information as to the conduct of
government
The Governor-General, as
the representative of the Sovereign, is entitled-
(a) to be informed by the Prime Minister concerning the general conduct of the government of Tuvalu; and
(b) to be given by the Prime Minister any information that he asks for with respect to any particular matter relating to the government of Tuvalu.
60.
Performance of certain ceremonial, etc.,
functions
(1) With the approval of the
Prime Minister, the Governor-General may authorize a person to perform, on his
behalf and in his name,
any of the ceremonial or formal functions of the Head of
State or of the
Governor-General.
(2) Subsection
(1) does not apply to-
(a) any function conferred by this Constitution on the Head of State or on the Governor-General; or
(b) except as provided for by an Act of Parliament, any function conferred by or under any Act of Parliament on the Head of State or the Governor-General; or
(c) any other function certified by the Prime Minister to have a legal or practical effect, or to be more than only ceremonial or formal.
PART
V
THE
EXECUTIVE
Division 1 - The Executive Authority of Tuvalu
61. Vesting
of the executive authority
(1) The
executive authority of Tuvalu is primarily vested in the Sovereign, and in the
Governor-General as the representative of the
Sovereign.
(2) The executive
authority so vested in the Sovereign shall be exercised in accordance with
section 52 (performance of functions
by the Head of
State).
(3) Nothing in this
section prevents a law from conferring functions on any other person or
authority.
62.
Offices of Ministers
(1) An office
of Prime Minister is
established.
(2) Subject to
subsection (3), there shall be such number of other offices of Minister, and
they shall have such titles, as are determined
by the Head of State, acting in
accordance with the advice of the Prime
Minister.
(3) The number of
offices of Minister (other than the office of Prime Minister) shall not exceed
one third of the total membership
of
Parliament.
(4) One of the
Ministers other than the Prime Minister may be appointed to the office of Deputy
Prime Minister by the Head of State,
acting in accordance with the advice of the
Prime Minister.
(5) Subject to
section 71 (caretaker
governments) and to subsection (6), all
Ministers (including the Prime Minister) must be members of
Parliament.
(6) If it is necessary
to appoint a Minister (other than a Prime Minister) at any time-
(a) after Parliament is dissolved under section 118 (dissolution of Parliament); and
(b) before the beginning of the first meeting of Parliament after the following general election,
a person who was a member of
Parliament immediately before the dissolution may be
appointed.
(7) Subject to sections
68 (acting Prime
Minister) and 76
(proceedings in
Cabinet), all Ministers other than the
Prime Minister rank
equally.
63.
The Prime Minister
(1) The Prime
Minister shall be elected by the members of Parliament in accordance with
Schedule 2 (Election
and Appointment of Prime
Minister).
(2)
The office of the Prime Minister becomes vacant-
(a) on death; or
(b) when a new election to the office of Prime Minister is completed; or
(c) if he ceases to be a member of Parliament for any reason other than the dissolution of Parliament; or
(d) if he resigns his office by notice in writing to the Head of State; or
(e) if he is removed from office under section 64 (removal from office of an incapacitated Prime Minister); or
(f) if a motion of no confidence in the Government receives in Parliament the votes of a majority of the total membership of Parliament.
(3) Subject to section 71
(caretaker
governments), a resignation under
subsection (2)(d) takes effect upon its receipt by the Head of
State.
64.
Removal from office of an incapacitated Prime
Minister
(1) If in the opinion of the
Head of State, acting in his own deliberate judgment after consultation, in
confidence, with the other
Ministers-
(a) the Prime Minister is unable to perform properly the functions of his office because of infirmity of body or mind; and
(b) it is desirable in the interests of the good government of Tuvalu that the question of removing him from office should be investigated,
the Head of State, acting in
accordance with the advice of a professional medical body outside Tuvalu
approved by an Act of Parliament
for the purpose, shall appoint two or more
medical practitioners who are legally qualified to practice medicine in Tuvalu
or elsewhere
to investigate the question of the capacity of the Prime
Minister.
(2) The persons
appointed under subsection (1) shall investigate the question and make a joint
professional report to the Head of
State
personally.
(3) If after
considering the report the Head of State, acting in his own deliberate judgment,
is satisfied that it is in the interests
of the good government of Tuvalu to do
so, he may, acting in his own deliberate judgment, by written notice
to-
(a) the Prime Minister; and
(b) the Speaker; and
(c) the Cabinet,
remove the Prime Minister from
office.
65.
Suspension of Prime Minister
(1) If
the question of the capacity of the Prime Minister has been referred to a
tribunal under section 64
(removal from office
of an incapacitated Prime Minister), the
Head of State, acting in his own deliberate judgment, may suspend the Prime
Minister from office.
(2) A
suspension under subsection (1)-
(a) may be lifted at any time by the Head of State, acting in his own deliberate judgment; and
(b) ceases to have effect if the tribunal reports to the Head of State that the Prime Minister is able to perform properly the functions of his office.
(3) A suspension under this
section takes effect without loss of remuneration or other
entitlements.
66 Effect of removal or suspension of Prime Minister
His removal under section 64
(removal from office
of an incapacitated Prime Minister), or
his suspension under section 65
(suspension of Prime
Minister), does not affect the position
of the Prime Minister as a member of
Parliament.
67.
The other Ministers
(1) The Ministers
other than the Prime Minister shall be appointed by the Head of State, acting in
accordance with the advice of the
Prime
Minister.
(2) The office of a
Minister other than the Prime Minister becomes vacant-
(a) on death; or
(b) when a new election to the office of Prime Minister is completed; or
(c) if the Minister ceases to be a member of Parliament for any reason other than the dissolution of Parliament; or
(d) subject to subsection (3), if the Minister resigns his office by notice in writing to the Head of State; or
(e) if the Minister is removed from office by the Head of State, acting in accordance with the advice of the Prime Minister; or
(f) in the circumstances set out in section 63(2)(f) (which relates to votes of no confidence in Government).
(3) A resignation under subsection (2)(d) takes effect on the date on which it is received by the Head of State.
68.
Acting Prime Minister
(1) This section
applies when the Prime Minister is-
(a) absent from Tuvalu; or
(b) for any other reason unable to perform the functions of his office.
(2) Subject to subsection
(3), in a case to which subsection (1) applies until the Prime Minister returns
to Tuvalu or is again able
to perform the functions of his office the Deputy
Prime Minister, (if any) shall perform those
functions.
(3) If-
(a) there is no office of Deputy Prime Minister; or
(b) there is a vacancy in the office of Deputy Prime Minister; or
(c) the Deputy Prime Minister is absent from Tuvalu; or
(d) the Deputy Prime Minister is for any other reason unable to perform the functions of the Prime Minister,
a Minister appointed by the
Head of State, acting in accordance with the advice of the Prime Minister, shall
perform the functions
of the Prime
Minister.
69.
Acting Ministers
(1)
When—
(a) subject to section 71 (caretaker governments), the office of a Minister other than the Prime Minister is vacant; or
(b) a Minister other than the Prime Minister is-
(i) absent from Tuvalu; or
(ii) for any other reason unable to perform the functions of his office,
the Head of State, acting in
accordance with the advice of the Prime Minister, may appoint another member of
Parliament to perform
temporarily the functions of the
Minister.
(2) The provisions of
section 62(6) (which
relates to the appointment of former members of Parliament as
Ministers) apply to an appointment under
this section in the same way as they apply to other
appointments.
70.
Conditions of acting appointments to Ministerial
offices
No question whether the need
for-
(a) the performance of any function of the Prime Minister by another Minister in accordance with section 68 (acting Prime Minister); or
(b) the appointment of a person to perform temporarily the functions of a Minister in accordance with section 69 (acting Ministers),
has arisen, or has ceased,
shall be considered in any
court.
71.
Caretaker governments
(1)
Notwithstanding anything in this Part other than this section, in the event of a
vacancy in the office of Prime Minister the Cabinet
in office immediately before
the occurrence of the vacancy continues in office as a caretaker government
until a new election of
a Prime Minister is
completed.
(2) If the Prime
Minister-
(a) dies; or
(b) ceases to be a member of Parliament for any reason other than the dissolution of Parliament; or
(c) is removed from office under section 64 (removal from office of an incapacitated Prime Minister),
then subsections (4)-(7)
apply.
(3) If the Prime Minister
resigns under section
63(2)(d) (which
relates to the resignation of the Prime
Minister) and indicates in his notice of
resignation that he wishes it to become effective immediately, then subsections
(4)-(7) apply.
(4) Subject to
subsection (5), in a case to which subsection (2) or (3) applies the Deputy
Prime Minister shall perform the functions
of the Prime
Minister.
(5) If-
(a) there is no office of Deputy Prime Minister; or
(b) subject to section 69 (acting ministers), there is a vacancy in the office of Deputy Prime Minister; or
(c) the Deputy Prime Minister is absent from Tuvalu; or
(d) the Deputy Prime Minister is for any other reason unable to perform the functions of the Prime Minister,
a Minister appointed by the
Head of State, acting in his own deliberate judgment after consultation, in
confidence, with the other
Ministers, shall perform the functions of the Prime
Minister.
(6) The provisions of
section 62(6) (which
relates to the appointment of former members of Parliament to be
Ministers) apply in respect of a
caretaker government holding office under this
section.
(7) A caretaker
government goes out of office when a new election to the office of Prime
Minister is
completed.
72.
Oaths and affirmations by
Ministers
Before entering upon the
duties of his office, the Prime Minister and any other Minister shall take an
oath, or make an affirmation,
of allegiance, and take an oath, or make an
affirmation, of office, in the forms respectively set out in Schedule 4
(Oaths and
Affirmations).
Division 3 - The Cabinet
73.
Establishment of the Cabinet
(1) A
Cabinet is established for
Tuvalu.
(2) The Cabinet consists
of the Prime Minister and all the other
Ministers.
74.
Functions of the Cabinet
The Cabinet
is collectively responsible to Parliament for the performance of the executive
functions of the
Government.
75.
Assignment of responsibilities to Ministers
(1) The Head of State, acting in
accordance with the advice of the Prime Minister may-
(a) assign to the Prime Minister or to any other Minister responsibility for the conduct of any business of the Government (including responsibility for the administration of any Ministry or office of Government); and
(b) from time to time re-assign any such responsibility either on a substantive basis or on an acting basis.
(2) Except as provided by
or under an Act of Parliament-
(a) all Ministries, offices and functions of Government shall be the responsibility of the Prime Minister or another Minister; and
(b) the Prime Minister is responsible for any function of Government that is not specifically assigned under this section.
76.
Proceedings in Cabinet
(1) Meetings of
the Cabinet shall be summoned by the Prime Minister or Minister appointed to act
as Prime Minister.
(2) The Prime
Minister shall, as far as practicable, attend and preside at all meetings of the
Cabinet, and in his absence-
(a) if there is an office of Deputy Prime Minister and the Deputy Prime Minister is present - the Deputy Prime Minister shall preside; and
(b) in any other case- a Minister chosen by the Ministers present shall preside.
(3) Subject to this
subsection, the quorum for a meeting of the Cabinet is a majority of the total
membership, but if the members
of the Cabinet present at a meeting certify to
the Head of State that-
(a) it is not practicable for a full quorum to be present; and
(b) a matter requiring decision is too urgent to wait for the availability of a full quorum,
the number of members actually
present is a quorum for that
meeting.
(4) Subject to the
requirement of a quorum in accordance with subsection (3)-
(a) the Cabinet may conduct any business even if there is a vacancy in its membership; and
(b) proceedings in Cabinet are valid even if a person who was not entitled to do so took part in those proceedings.
(5) Subject to any
directions of the Cabinet, the Prime Minister or Minister appointed to act as
Prime Minister, shall decide what
business is to be considered at a meeting of
the
Cabinet.
77.
Validity of executive acts
(1) The
succeeding provisions of this section are subject to any Act of
Parliament.
(2) Except as
authorized by the Cabinet, or as otherwise required or permitted by an Act of
Parliament, the business and proceedings
of the Cabinet shall be kept
secret.
(3) No question whether
any procedures prescribed for the Cabinet have been, or are being, complied with
shall be considered in any
court.
(4) Subject to subsection
(5), no act of the Prime Minister or of any other Minister is open to any
challenge on the ground that he
was not authorized to perform it if any Minister
(whether or not specifically named) was so authorized to do
so.
(5) Subsection (4) does not
apply in relation to a function that is specifically conferred on the Prime
Minister.
Division 4 - Officers Associated with the Cabinet
78. The
Secretary to Government
(1) An office
of Secretary to Government is established as an office in the Public
Service.
(2) The Secretary to
Government shall be appointed in accordance with section 159(3)(a)
(which relates to the
appointment of the Secretary to
Government).
(3)
Unless he has been excused by or under the authority of the Prime Minister, the
Secretary to Government shall attend all meetings
of the
Cabinet.
(4) The Secretary to
Government is responsible, in accordance with such instructions as are given to
him by the Cabinet, for co-ordinating
the work of all Ministries and offices of
Government, and has such other functions as are prescribed or as are directed by
the Cabinet
or the Prime
Minister.
(5) On receipt of a
written notice of resignation from the Secretary to Government, the Prime
Minister shall advise the Public Service
Commission and submit the resignation
to the Head of State for approval, which, subject to any other law, shall take
effect on the
date
specified.
79.
The Attorney-General
(1) An office of
Attorney-General for Tuvalu is established as an office in the Public
Service.
(2) The Attorney-General
shall be appointed in accordance with section 159(4)(a)
(which relates to the
appointment of the
Attorney-General).
(3)
The Attorney-General is the principal legal adviser to the Government, and has
such other functions as are
prescribed.
(4) A person is not
qualified to hold or to act in the office of Attorney-General unless he is
entitled to practise before the High
Court.
(5) Unless he is excused by
or under the authority of Parliament, the Attorney-General-
(a) shall attend all meetings of Parliament; and
(b) may take part, in accordance with the Rules of Procedure of Parliament, in the proceedings of Parliament and committees of Parliament (but without a vote).
(6) Unless he is excused
by or under the authority of the Prime Minister, the Attorney-General shall
attend all meetings of the
Cabinet.
(7) Subject to the
succeeding provisions of this section, in any case where he considers it
desirable to do so the Attorney-General
may-
(a) take criminal proceedings against any person before a court (other than a court-martial or other military tribunal) in respect of an offence; or
(b) take over and continue any criminal proceedings referred to in paragraph (a) that have been taken by any other person or authority; or
(c) discontinue, at any stage before judgment is given, any criminal proceedings referred to in paragraph (a) that have been taken by him or by any other person or authority.
(8) Subject to any Act of
Parliament, the functions of the Attorney-General may be
performed-
(a) in person; or
(b) through officers responsible to him, acting in accordance with his general or specific instructions,
and references to the
Attorney-General include references to officers so
acting.
(9) Where any person or
authority other than the Attorney-General has taken any criminal proceedings,
nothing in this section prevents
the withdrawal, in accordance with law, of
those proceedings by any person or authority except where those proceedings have
been
taken over by the
Attorney-General.
(10) Subject to
subsections (8) and (9), the powers conferred on the Attorney-General by
subsection (7)(b) and (c) are vested in him
to the exclusion of any other person
or authority.
(11) Subject to
section 15
(independence)
of Schedule 1, in the performance of his functions under subsection (7) the
Attorney-General is not subject to the direction or
control of any other person
or authority.
(12) Subject to
subsection (13), for the purposes of this section-
(a) an appeal from a decision in any proceedings; and
(b) a case stated or question of law reserved for the purpose of any proceedings,
is part of those
proceedings.
(13) The functions of
the Attorney-General under subsection (7)(c) shall not be exercised in relation
to-
(a) an appeal by a person convicted in any proceedings; or
(b) a case stated or question of law reserved at the instance of a person convicted in any proceedings; or
(c) a judicial review of any proceedings.
Division 5 - The Power of Mercy
80.
Commutation, etc., of sentences
(1)
The Head of State, acting in accordance with the advice of the Cabinet,
may-
(a) grant to a person a pardon, either free or subject to lawful conditions, for an offence; or
(b) relieve a person from any disability imposed by this Constitution or by or under an Act of Parliament because of a conviction under, or a contravention of, or a failure to comply with, a law of a country other than Tuvalu; or
(c) grant to a person a delay, either indefinite or for a specified period, in the enforcement of any penalty imposed on that person for an offence; or
(d) substitute a less severe form of punishment for any punishment imposed on a person for an offence; or
(e) remit the whole or part of-
(i) any punishment imposed on a person for an offence; or
(ii) any penalty, fine or forfeiture otherwise due to the Government on account of an offence.
(2) In any case in which
the power of mercy is exercised in accordance with subsection (1), the Prime
Minister shall present to Parliament-
(a) if the power is exercised during a meeting of Parliament - during that meeting; or
(b) if the power is exercised at any other time - during the next meeting of Parliament,
a statement giving details of
the exercise of the power and of the reasons for it.
PART
VI
PARLIAMENT AND
LAW-MAKING
Division 1 - Parliament
81.
Establishment of Parliament
A
Parliament is established for
Tuvalu.
82.
Composition of Parliament
(1) Subject
to subsection (3), Parliament shall consist of such number of members as is
fixed by or under an Act of Parliament and
a Bill for an Act to amend the number
of members so fixed shall not be passed by Parliament unless it is supported at
its Third Reading
by the votes of not less than two-thirds of the members of
Parliament.
(2) The members shall
be directly elected in accordance with this Constitution and, subject to this
Constitution, in accordance with
an Act of
Parliament.
(3) The number of
members of Parliament shall not be less than
twelve.
(4) For the purpose of the
election of the members of Parliament, electoral districts shall be established,
having-
(a) such boundaries; and
(b) such number of elected representatives,
as are prescribed by or under
an Act of Parliament.
(5) Nothing
in this Constitution prevents an Act of Parliament from making special provision
for the representation of a part of Tuvalu
with special electoral problems, or
related
problems.
83.
Principles of electoral
apportionment
(1) This section does
not affect the operation of section 82(5)
(which relates to
special electoral provisions for particular parts of
Tuvalu.)
(2)
Subject to subsection (1), a Bill for an Act for the purposes of section 82
(composition of
Parliament) shall, so far as practicable,
be based on the principle that each member of Parliament should represent
approximately the same number
of electors, but in the circumstances of Tuvalu
account must also be taken of-
(a) geographical features; and
(b) interests or relationships of any kind that various areas-
(i) may have in common; or
(ii) may not have in common; and
(c) the boundaries of existing administrative and traditional areas; and
(d) means of communication; and
(e) density and mobility of population; and
(f) such other factors as are prescribed by an Act of Parliament for the purpose.
Division 2 - The Law-making Power
84. Vesting
of the law-making power
Subject to
this Constitution, Parliament may make laws, not inconsistent with this
Constitution, including-
(a) laws having effect outside Tuvalu; and
(b) laws having retrospective effect; and
(c) laws providing for all matters that are necessary or convenient to be prescribed-
(i) for carrying out or giving effect to this Constitution; or
(ii) for defining or detailing, or for further defining or detailing, any matter in this Constitution.
85.
Delegated legislation
Acts of
Parliament may provide-
(a) for the delegation to any person or authority other than Parliament of power to make regulations and other subsidiary laws; and
(b) for the control of the use of any power delegated under paragraph (a), whether-
(i) by means of a requirement of approval; or
(ii) by means of a power to disallow,
or in some other prescribed
way.
86. Manner
of exercise of the law-making
power.
(1) The power of Parliament to
make laws shall be exercised by means of Bills passed, in accordance with
section 111
(procedure on Bills,
etc.), by Parliament and assented to by
the Head of State.
(2) When a Bill
is presented to the Head of State for assent the Head of State shall promptly
assent to it.
(3) A Bill that has
been assented to is an Act of Parliament.
Division 3 - Membership of Parliament
87.
Nature of elections
(1) Members of
Parliament shall be elected under a system of universal, citizen, adult
suffrage, in accordance with this Constitution
and any law made for the purposes
of section 89
(electoral
laws).
(2)
All contested elections of members of Parliament shall be held by secret
ballot.
(3) The provisions of
subsection (2) shall not be considered to be contravened by a law that makes
reasonable provision for assistance
in voting to be given, on request, to any
person.
88.
Holding of elections
(1) There shall
be a general election as soon as practicable after every dissolution of
Parliament.
(2) There shall be a
bye-election as soon as practicable after the occurrence of any casual vacancy
in the membership of
Parliament.
89.
Electoral laws
(1) Subject to this
Constitution, an Act of Parliament may make provision for and in relation to
Parliamentary elections.
(2) An
Act of Parliament shall make provision for safeguarding the integrity of
Parliamentary elections, especially in circumstances
to which section 87(3)
(special provisions
for certain voters)
applies.
Subdivision B - Electors
90.
Right to vote
(1) Subject to the
succeeding provisions of this section, any person who is registered under an Act
of Parliament as an elector for
Parliamentary elections in an electoral district
is entitled to vote, in such manner as is prescribed, in an election of a member
of Parliament for that
district.
(2) An Act of Parliament
may prohibit a person from voting in an election if-
(a) he is an electoral officer within the meaning of the Act; or
(b) he has been involved in the commission of an offence in connection with an election.
(3) A person is not entitled
to vote in an election if-
(a) throughout the hours and on the date or dates fixed for the polling he is under arrest or in prison; or
(b) except as prescribed, he is for any reason unable to attend in person at the place and time fixed for the polling.
(4) A person is not entitled
to vote in an election of a member of Parliament for an electoral district if he
is not registered as
an elector for Parliamentary elections in that
district.
91.
Qualifications for registration
(1)
Subject to section 92
(disqualification
from registration), a person is entitled
to be registered as an elector in Parliamentary elections if, and is not
entitled to be registered as such
an elector unless-
(a) he is a citizen of Tuvalu; and
(b) he has attained the age of 18 years; and
(c) he satisfies such other requirements (whether as to residence or otherwise) as are prescribed.
(2) A person is not entitled
to be registered as an elector in Parliamentary elections in more than one
electoral district at the
same
time.
92.
Disqualification from registration
(1)
A person is not entitled to be registered as an elector in Parliamentary
elections if-
(a) subject to section 102 (calculation of sentences) and to subsection (2), he has been sentenced by a court in a Commonwealth country to death or to imprisonment (by whatever name called) for a term exceeding 12 months, and has not received a free pardon; or
(b) he is certified to be insane, or otherwise adjudged to be of unsound mind, under an Act of Parliament; or
(c) he is disqualified, under an Act of Parliament relating to offences in connection with elections, from being registered as an elector in Parliamentary elections.
(2) Subsection (1)(a) does
not apply if-
(a) on appeal or review-
(i) the conviction is overthrown; or
(ii) the sentence is reduced to a sentence of imprisonment for a term not exceeding 12 months, or to some other penalty; or
(b) in the case of a sentence of imprisonment (whether it was the original sentence or was substituted on appeal or review) - three years have elapsed since the end of the imprisonment.
Subdivision C - Candidates
93.
Candidature
(1) A candidate for
election to Parliament must be-
(a) qualified for election as a member of Parliament; and
(b) nominated in accordance with an Act of Parliament.
(2) A member of Parliament is
not qualified to be a
candidate.
94.
Qualifications for election
Subject to
section 95
(disqualification
from election) a person is qualified to
be elected as a member of Parliament if, and is not qualified to be elected as a
member of Parliament unless,-
(a) he is a citizen of Tuvalu; and
(b) he has attained the age of 21 years.
95.
Disqualification from election
(1) A
person is not qualified to be elected as a member of Parliament
if-
(a) subject to Section 102 (calculation of sentences) and to subsection (2), he has been sentenced by a court in a commonwealth country to death or to imprisonment (by whatever name called) for a term exceeding 12 months, and has not received a free pardon, or is serving a prison sentence; or
(b) he is certified to be insane, or otherwise adjudged to be of unsound mind, under an Act of Parliament; or
(c) he is disqualified, under an Act of Parliament relating to offences in connection with elections, from membership of Parliament; or
(d) he is, by virtue of his own act, under an acknowledgement of allegiance, obedience or adherence to a country other than Tuvalu; or
(e) he has been adjudged or otherwise declared bankrupt under a law of a Commonwealth country, and has not been discharged; or
(f) subject to such exceptions as are prescribed, he holds, or is acting in, any office or position in a State Service; or
(g) he is the Head of State, a Judge of the High Court or a magistrate; or
(h) he is a member of the Public Service Commission.
(2) Subsection (l)(a) does
not apply if-
(a) on appeal or review-
(i) the conviction is overthrown; or
(ii) the sentence is reduced to a sentence of imprisonment for a term not exceeding 12 months, or to some penalty other than imprisonment; or
(b) in the case of a sentence of imprisonment, whether it was the original sentence or was substituted on appeal or review, three years have elapsed since the end of the imprisonment.
Subdivision D - Members
96.
Tenure of office
(1) The seat of a
member of Parliament becomes vacant-
(a) on death; or
(b) on a dissolution of Parliament; or
(c) if he is absent from the sittings of Parliament for such period and in such circumstances as are prescribed in the Rules of Procedure of Parliament; or
(d) subject to subsection (2), if, not being the Speaker, he resigns his seat by written notice to the Speaker; or
(e) subject to subsection (3), if, being the Speaker-
(i) he announces to Parliament his resignation from his seat; or
(ii) he resigns his seat by written notice addressed to Parliament and given to the Clerk of Parliament; or
(f) if he ceases to be qualified for, or becomes disqualified from, election to Parliament under section 94 (qualifications for election) or 95 (disqualification from election); or
(g) in the circumstances set out in section 97 (disclosure of interest) or 98 (vacation of seat on sentence); or
(h) if his seat is declared to be vacant under section 99 (recall of incapacitated member); or
(i) if he becomes the Head of State or a Judge of the High Court.
(2) A resignation under
subsection (1)(d) takes effect on the date on which it is received by the
Speaker.
(3) A resignation under
subsection (1)(e) takes effect on the date on which it is-
(a) announced to Parliament; or
(b) received by the Clerk of Parliament,
as the case may
be.
97.
Disclosure of interest
(1) An Act of
Parliament or the Rules of Procedures of Parliament may make provision requiring
a member of Parliament who has an interest
in a matter under consideration in
Parliament-
(a) to disclose his interest; and
(b) except with the approval of Parliament, not to take part in any proceedings in Parliament, or in a committee of Parliament, in relation to the matter.
(2) An Act of Parliament
or the Rules of Procedure of Parliament may provide that if a member of
Parliament contravenes a provision
referred to in subsection (1) his seat
becomes
vacant.
98.
Vacation of seat on sentence
(1)
Subject to section 102
(calculation of
sentences) and to the succeeding
provisions of this section, if a member of Parliament is sentenced by a court in
a Commonwealth country to
death or to imprisonment (by whatever name called) for
a term exceeding 12 months-
(a) he shall forthwith cease to discharge his functions as a member of Parliament, and shall not attend Parliament as a member of Parliament; and
(b) his seat becomes vacant at the end of 30 days after the date of sentence.
(2) The Speaker may, at
the request of the member, from time to time extend the period of 30 days
referred to in subsection (1)(b)
to enable the member to pursue any appeal
(judicial or other) in respect of his conviction or sentence, but extensions
totalling
more than 150 days shall not be granted without the consent of
Parliament, signified by
resolution.
(3) If before a member
vacates his seat under this section-
(a) he receives a free pardon; or
(b) on appeal or review-
(i) the conviction is overthrown; or
(ii) the sentence is reduced to a sentence of imprisonment for a term not exceeding 12 months, or to some penalty other than imprisonment,
his seat does not become
vacant, and he may again discharge his functions as a
member.
(4) A reference in this
section to functions as a member of Parliament includes a reference to functions
performed in any capacity
arising out of membership of Parliament (including
functions as Speaker or as the Prime Minister or another
Minister).
99.
Recall of incapacitated member
(1) If
more than 50 percent of the persons who are registered as electors for
Parliamentary elections in an electoral district sign
a petition to the Head of
State stating that a member of Parliament for that district is unable to perform
properly the functions
of a member because of infirmity of body or mind, the
succeeding provisions of this section
apply.
(2) If the Head of State,
acting in his own deliberate judgment, is satisfied that-
(a) a petition delivered to him complies with subsection (1); and
(b) it is desirable in the interests of the good government of Tuvalu that the question of removing the member should be investigated,
the Head of State, acting in
accordance with the advice of a professional medical body outside Tuvalu
approved by an Act of Parliament
for the purpose, shall appoint two or more
medical practitioners who are legally qualified to practise medicine either in
Tuvalu
or elsewhere to investigate the question of the capacity of the
member.
(3) The persons appointed
under subsection (2) shall investigate the question and make a joint
professional report to the Head of
State
personally.
(4) If after
considering the report the Head of State, acting in his own deliberate judgment,
is satisfied that it is desirable in
the interests of the good government of
Tuvalu to do so, he shall, acting in his own deliberate judgment, by written
notice to-
(a) the Speaker; and
(b) the member,
declare the seat of the member
concerned to be vacant.
Subdivision E - Miscellaneous
100.
Questions as to membership of
Parliament
(1) The High Court has
jurisdiction to determine, in accordance with law, any question
whether-
(a) a candidate has been validly elected as a member of Parliament; or
(b) a member of Parliament has vacated his seat, or is required by section 98 (vacation of seat on sentence) to cease to perform his functions as a member; or
(c) the seat of a member has been declared vacant in accordance with any Act of Parliament or Rules of Procedure of Parliament provided for by section 97 (disclosure of interest); or
(d) the seat of a member has been declared vacant in accordance with section 99 (recall of incapacitated member).
(2) There is no appeal
from a decision of the High Court in proceedings under subsection
(1).
101.
Sitting, etc., while unqualified
(1) A
person who sits or votes in Parliament or in a committee of Parliament knowing,
or having reasonable grounds for believing,
that he is not entitled to do so is
liable to a civil penalty not exceeding $20.00 for each day upon which he so
sits or votes.
(2) A penalty under
subsection (1) may be recovered only by civil action in the High Court by the
Attorney-General.
102.
Calculation of sentences
(1) This
section applies to the calculation of the lengths of periods of imprisonment for
the purposes of-
(a) section 92 (disqualification from registration); and
(b) section 95 (disqualification from election); and
(c) section 98 (vacation of seat on sentence).
(2) For the purposes of
the provisions referred to in subsection (1)-
(a) two or more terms of imprisonment that are required to be served consecutively shall be regarded as a single term of the total period; and
(b) no account shall be taken of a sentence of imprisonment imposed in default of payment of a fine; and
(c) "review" includes an administrative or executive review of a sentence.
Division 4 - The Speaker
103.
Establishment of the office of Speaker
An office of Speaker of Parliament is
established.
104.
Election of the Speaker
(1) Subject
to this section, the Speaker shall be elected by the members of Parliament from
among their own number.
(2) As
soon as practicable after-
(a) each general election; or
(b) the occurrence of a casual vacancy in the office of Speaker,
but after any necessary
election of a Prime Minister, the Head of State, acting in accordance with the
advice of the Prime Minister,
shall call a meeting of the members of Parliament
for the purpose of electing a Speaker, at a date, time and place fixed by the
Head
of State, acting in accordance with the advice of the Prime Minister, by
notice to each member.
(3) The
Clerk of Parliament shall preside at the meeting, and for that purpose has all
the functions of the Speaker as if the meeting
were a meeting of
Parliament.
(4) When a Speaker is
elected, the Clerk of Parliament shall so inform the Head of State, and the Head
of State shall appoint the
person so elected to be the
Speaker.
(5) At the commencement
of the first sitting day of Parliament after the appointment of a Speaker, the
Clerk of Parliament shall announce
to the members of Parliament present the
appointment of the Speaker and the person appointed shall then take his place as
Speaker
105.
Tenure of office of the Speaker
(1)
The office of Speaker becomes vacant-
(a) on death; or
(b) when a Speaker next takes his place under section 104(5) (which relates to the Speaker taking his place after his appointment by the Head of State); or
(c) subject to subsection (2), if-
(i) he announces to Parliament his resignation from office; or
(ii) he resigns his office by written notice addressed to Parliament and given to the Clerk of Parliament; or
(d) if he ceases to be a member of Parliament for any reason other than the dissolution of Parliament; or
(e) if he becomes Prime Minister or another Minister; or
(f) if he becomes the Head of State or a Judge of the High Court; or
(g) if Parliament so resolves by resolution supported by the votes of two thirds of the total membership.
(2) A resignation under subsection (1)(c) takes effect on the date on which it is-
(a) announced to Parliament; or
(b) received by the Clerk of Parliament,
as the case may
be.
106.
Functions of the Speaker
(1) Subject
to subsection (2), when he is present the Speaker shall preside at all sittings
of Parliament and of committees of
Parliament.
(2) An Act of
Parliament or the Rules of Procedure of Parliament may provide that subsection
(1) does not apply-
(a) when Parliament is in a committee of the whole Parliament; or
(b) on other occasions, or in other circumstances, prescribed in the Act or the Rules.
(3) Subject to any Act of
Parliament made for the purposes of subsection (6), the Speaker is responsible
for ensuring that the business
of Parliament is conducted in accordance with
this Constitution, any applicable Act of Parliament and the Rules of Procedure
of Parliament.
(4) The Speaker
shall do his best to ensure that-
(a) proceedings in Parliament are conducted at all times with dignity, decorum and politeness; and
(b) abusive, unnecessarily violent or otherwise objectionable language is not used in Parliament; and
(c) Parliamentary privilege is not abused by the making of unnecessary personal attacks on other members of Parliament or other persons, or in any other manner.
(5) The Speaker has such other
functions as are provided for by this Constitution, any Act of Parliament and
the Rules of Procedure
of
Parliament.
(6) Subject to any Act
of Parliament, the decision of the Speaker on any matter relating to the conduct
of the business of Parliament
is
final.
(7) The Speaker shall
perform his functions impartially, and has a duty to ensure that in the conduct
of the business of Parliament
there is a reasonable opportunity for all members
present to be fairly heard.
107. Acting
Speaker
(1) If the Speaker is absent
from a sitting of Parliament or if there is a vacancy in the office of Speaker
during a meeting, a member
of Parliament (not being the Prime Minister or
another Minister) elected by the members shall, until relieved by the Speaker,
perform
the functions of the
Speaker.
(2) If at any time when
Parliament is not sitting-
(a) the Speaker is absent from Tuvalu or is for any other reason unable to perform his functions; and
(b) no member has been elected under subsection (1), the Clerk of Parliament shall perform the parliamentary functions of the Speaker.
(3) The Clerk of Parliament
shall preside for the purposes of the election of an acting Speaker under
subsection (1).
(4) No question
whether the need for the election of a person to perform the functions of the
Speaker in accordance with this section
has arisen, or has ceased, shall be
considered in any court.
Division 5 - Procedures in Parliament
108.
Rules of Procedure
(1) Subject to this
Constitution and to any Act of Parliament, Parliament may make rules of
procedure for the regulation and orderly
conduct of its proceedings and the
discharge of business at sittings of Parliament, and for related
purposes.
(2) The rules shall
ensure that in the conduct of the business of Parliament there is a reasonable
opportunity for all members to
be fairly
heard.
109.
Quorum of Parliament
(1) Subject to
subsection (3), the quorum for a meeting of Parliament is one more than one half
of the total membership, ignoring
any fraction which may arise in calculating
one half of the total
membership.
(2) If at any
time-
(a) the Speaker declares that a quorum in accordance with subsection (1) is not present; and
(b) after such interval as is prescribed in the Rules of Procedure of Parliament for the purpose such a quorum is again not present,
the Speaker shall adjourn
Parliament until a time and date that he thinks
appropriate.
(3) If at the time
and date fixed by the Speaker under subsection (2) a quorum in accordance with
subsection (1) is not present, the
number of members of Parliament actually
present and qualified to take part in the proceedings is a quorum for the
purposes of that
day's
sitting.
110.
Voting in Parliament
(1) Subject to
this Constitution, all questions before Parliament shall be determined in
accordance with a majority of the votes of
the members of Parliament present and
voting.
(2) Subject to subsection
(3), the Speaker does not have an original vote, but-
(a) has; and
(b) shall exercise,
a casting
vote.
(3) The Speaker has an
original vote, but not a casting vote-
(a) on a motion of no confidence in the Government; and
(b) on a Bill for an Act to amend this Constitution
111.
Procedure on Bills, etc
(1) Subject to
this Constitution, any member of Parliament may, in accordance with the Rules of
Procedure of Parliament-
(a) introduce a Bill in Parliament; or
(b) propose a motion for debate in Parliament; or
(c) present a petition to Parliament,
and it shall be disposed of in
accordance with this Constitution and the
Rules.
(2) Subject to section 2
(the area of
Tuvalu), with the exception
of-
(a) Appropriation Bills; and
(b) Bills certified by the Head of State, acting in accordance with the advice of the Cabinet, to be-
(i) urgent; or
(ii) not of general public importance,
Parliament shall not proceed
upon a Bill after its first reading until the next session of Parliament, and
after the first reading
the Clerk of Parliament shall circulate the Bill to all
local governments for consideration and
comment.
(3) Parliament shall
consider and dispose of any comments received under subsection
(2).
(4) Parliament shall not
proceed-
(a) further than the first reading of a Bill for any purpose referred to in section 166(1) (which relates to Executive initiative); or
(b) on a motion or amendment which would have a similar effect, without the recommendation of a Minister as required by section 166(1) (which relates to Executive initiative).
Division 6 - Miscellaneous
112. Oath
and affirmation of members of
Parliament
(1) Subject to subsection
(3), no member of Parliament may take part in the proceedings of Parliament
(other than formal proceedings
and proceedings necessary for the purpose of this
section) until he has, before Parliament, made an oath, or taken an affirmation,
of allegiance in the form in Schedule
4.
(2) The swearing-in of a member
of Parliament takes precedence over all other business (other than formal
business and business referred
to in subsection (3)) in Parliament
(3) Subsection (1) does not apply
in relation to-
(a) proceedings for the election of a Prime Minister under section 63(1) (which relates to the election of a Prime Minister) and Schedule 2 (Election and Appointment of the Prime Minister); or
(b) proceedings for the election of a Speaker under section 104 (election of the Speaker) or of an acting Speaker under section 107(1) (which relates to the election of a member of Parliament as acting Speaker).
113.
Validity of proceedings in
Parliament
Subject to sections 109
(quorum of
Parliament) and 110
(voting in
Parliament)-
(a) Parliament or a committee of Parliament may conduct any business even if there is a vacancy in its membership; and
(b) the proceedings of Parliament, and of a committee of Parliament, are valid even if a person who was not entitled to do so took part in those proceedings.
114.
Privileges of Parliament
(1) The
purpose of this section is to allow, as is customary in
Parliaments-
(a) certain privileges and immunities to be conferred upon Parliament and members of Parliament; and
(b) certain powers to be conferred upon Parliament, in order to facilitate the proper conduct of the business of Parliament, and to prevent improper interference with the conduct of that business.
(2) Subject to subsections (4)
and (5), Parliament may provide for-
(a) privileges and immunities of Parliament and members of Parliament; and
(b) powers of Parliament.
(3) Any provision made by
Parliament for the purposes of subsection (2) shall be interpreted and applied
only in accordance with the
purpose of this section as set out in subsection
(1).
(4) No civil or criminal
proceedings may be instituted against a member of Parliament-
(a) for words spoken in, or included in a report to, Parliament or a committee of Parliament; or
(b) by reason of any matter or thing brought by him in Parliament or a committee of Parliament.
(5) No process issued by a
court shall be served or issued within the precincts of Parliament (as defined
by or under an Act of Parliament
or the Rules of Procedure of
Parliament).
115.
Clerk of Parliament and other officers
There shall be a Clerk of Parliament
and such other officers as are necessary for the proper conduct of the business
of Parliament,
who shall be members of a State Service.
Division
7 - Summoning, Dissolution, etc.
116.
Meetings of Parliament
(1) Subject to
this section, Parliament shall meet at such places in Tuvalu, and at such times,
as the Head of State, acting in accordance
with the advice of the Cabinet,
appoints.
(2) Sessions of
Parliament shall be held in such a way that no period of 12 months intervenes
between the end of one session and the
beginning of the
next.
(3) A session of Parliament
shall be appointed to begin as soon as practicable after the declaration of the
results of a general election,
and in any event within three months after the
declaration.
(4) In the event of a
failure to comply with subsection (2) or (3), the Speaker shall call a meeting
of Parliament, unless in the
meantime a meeting has been called under subsection
(1).
117.
Prorogation of Parliament
The Head of
State, acting in accordance with-
(a) a resolution of Parliament; or
(b) subject to any resolution of Parliament, the advice of the Prime Minister,
may at any time prorogue
Parliament.
118.
Dissolution of Parliament
(1) Subject
to this section, Parliament is automatically dissolved at the end of the period
of four years after the date of its first
sitting after a general
election.
(2) The Head of State,
acting in accordance with a resolution of Parliament may at any time dissolve
Parliament.
(3) If-
(a) the office of Prime Minister is vacant; and
(b) no person has been elected to that office within such period as the Head of State, acting in his own deliberate judgment, thinks reasonable, the Head of State, acting in his own deliberate judgment, may dissolve Parliament.
(4) Subject to subsection
(5), Parliament remains dissolved until the declaration of the results of the
following general election.
(5)
Subject to subsection (6), if the Head of State certifies that there is an
urgent matter requiring the attention of Parliament
at a time while Parliament
is dissolved he may re-convene Parliament, and Parliament may meet and act as if
it had not been dissolved.
(6) The
functions of the Head of State under subsection (5) shall be
performed-
(a) in accordance with the advice of the Cabinet, and
(b) subject to any such advice, in his own deliberate judgment.
(7) A meeting of
Parliament re-convened under subsection (5) shall consider only the matter
certified under that subsection and matters
that, in the opinion of the Speaker,
arise out of it.
PART
VII
THE
COURTS
Division 1 - General
119.
The judicial system
The judicial
system of Tuvalu consists of-
(a) the Sovereign in Council (as provided for in Division 4); and
(b) the Court of Appeal for Tuvalu (as provided for in Division 3); and
(c) the High Court of Tuvalu (as provided for in Division 2); and
(d) such other courts and tribunals as are provided for by or under Acts of Parliament.
Division 2 - The High Court
Subdivision
A - Establishment, etc.
120.
Establishment of the High Court
(1) A
High Court of Tuvalu is
established.
(2) The High Court is
a superior court of
record.
121.
Composition of the High Court
The High
Court is constituted by the Chief Justice of Tuvalu and any other Judges
appointed under section 123
(other
Judges).
122.
The Chief Justice of Tuvalu
(1) An
office of Chief Justice of Tuvalu is
established.
(2) The Chief Justice
shall be appointed by the Head of State, acting in accordance with the advice of
the Cabinet, for such period
as is specified in the instrument of his
appointment.
123.
Other Judges
If the Cabinet is
satisfied that the appointment of an additional Judge is necessary for the
proper performance of the functions of
the High Court, the Head of State, acting
in accordance with the advice of the Cabinet given after consultation with the
Chief Justice,
may appoint a person to be a Judge of the High
Court-
(a) for such period; or
(b) in relation to such matters,
as is or are specified in the
instrument of his
appointment.
124.
Qualifications of Judges
A person is
not qualified for appointment as a Judge of the High Court
unless-
(a) he is or has been a judge of a court of unlimited jurisdiction in civil and criminal matters in some country that has a legal system similar to that of Tuvalu, or of a court having jurisdiction in appeals from such a court; or
(b) has been qualified for at least five years to practice as a barrister or solicitor, or the equivalent, in a country referred to in paragraph (a).
125.
Remuneration, etc., of Judges
(1) The
salaries or other remuneration and the allowances of the Judges of the High
Court are as provided for in section 169
(remuneration of
certain
officials).
(2)
Subject to this Constitution and to any Act of Parliament, the other conditions
of employment of a Judge of the High Court are
as agreed between the Judge and
the
Cabinet.
126.
Tenure of office of Judges
(1) A Judge
of the High Court vacates his office-
(a) on death; or
(b) if he is removed from office under section 127 (removal of Judges from office); or
(c) subject to subsection (2), if he resigns by notice in writing to the Head of State; or
(d) at the end of the period of his appointment; or
(e) in the case of a Judge appointed in accordance with section 123(b) (which relates to the appointment of other Judges for certain matters) - on the conclusion of the matters in relation to which he was appointed.
(2) A resignation under
subsection (1)(c) becomes effective on the date on which it is received by the
Head of State, or on such later
date as is fixed by agreement between the Judge
and the
Cabinet.
127.
Removal of Judges from office
(1) A
Judge of the High Court may be removed from office only-
(a) for inability to perform properly the functions of his office (whether arising from infirmity of body or mind, or from some other cause) or for misbehaviour; and
(b) in accordance with this section.
(2) A Judge of the High Court
may be removed from office by Parliament, by resolution, if-
(a) the question of his removal from office has been referred to a tribunal appointed under subsection (3); and
(b) the tribunal has advised Parliament that he ought to be removed from office for a reason set out in subsection (1)(a).
(3) If the Cabinet
decides, or Parliament resolves, that the question of removing a Judge from
office should be investigated, the
Head of State, acting after consultation
with-
(a) the Prime Minister; and
(b) in the case of a Judge other than the Chief Justice, the Chief Justice,
shall appoint an independent
tribunal consisting of a chairman and at least one other member, each of whom is
qualified for appointment
as a Judge of the High Court, to investigate the
question.
(4) The tribunal shall
investigate the question and report on it to Parliament, with its advice whether
or not the Judge should be
removed from
office.
(5) The provisions of
Schedule 3
(procedure, etc., of
the Public Service Commission and certain
Tribunals) apply to and in respect of the
tribunal.
128.
Suspension of Judges
(1) If the
question of removing a Judge of the High Court from office has been referred to
a tribunal under section 127
(removal of Judges
from office) the Head of State, acting in
accordance with the advice of the Cabinet may suspend the Judge from
office.
(2) A suspension under
subsection (1)-
(a) may be lifted at any time by the Head of State, acting in accordance with the advice of the Cabinet; and
(b) ceases to have effect if the tribunal advises Parliament that the Judge should not be removed from office.
(3) A suspension under
this section takes effect without loss of remuneration or other
entitlements.
129.
Completion of pending matters
Even
when he vacates his office (otherwise than by removal from office under section
127 (removal of
Judges from office), a Judge of the High
Court may continue to perform the functions of that office in relation to any
proceedings commenced before
him while his appointment was in force, and while
so acting he continues to be entitled to his previous remuneration and other
entitlements.
Subdivision B. - Jurisdiction
130.
Jurisdiction of the High Court
generally
(1) The High Court has
jurisdiction-
(a) in relation to Part II (Bill of Rights) of this Constitution - as provided by Division 5 (Enforcement of the Bill of Rights) of that Part; and
(b) in relation to questions as to membership of Parliament - as provided by section 100 (questions as to membership of Parliament); and
(c) in relation to other questions as to the interpretation or application of this Constitution - as provided by section 131 (constitutional interpretation); and
(d) in relation to appeals generally - as provided by section 132 (appellate jurisdiction of the High Court); and
(e) in other matters - as provided for by sections 14(3) (which relates to the effect of Parliamentary declarations of purpose) and 133 (other jurisdiction, etc., of the High Court), and otherwise in this Constitution.
(2) Subject to any Act of
Parliament providing for the jurisdiction of two or more members of the High
Court sitting together, the
jurisdiction of the High Court may be exercised by
the Chief Justice or a single
Judge.
131.
Constitutional interpretation
(1)
Subject to subsection (2), the High Court has original jurisdiction to determine
any question as to the interpretation or application
of this
Constitution.
(2)
Where-
(a) any question as to the interpretation or application of this Constitution arises in any proceedings in a subordinate court; and
(b) that court is of the opinion that the question involves a substantial question of law,
the court may, and shall if a
party to the proceedings so requests, refer the question to the High Court for
determination.
132.
Appellate jurisdiction of the High
Court
The High Court has such
jurisdiction to determine appeals from decisions of subordinate courts as is
provided for by this Constitution
or by or under Acts of
Parliament.
133.
Other jurisdiction, etc., of the High
Court
The High Court has such other
jurisdiction, power and authority as are conferred by or under Acts of
Parliament.
Division 3. - The Court of Appeal
134.
Establishment of the Court of
Appeal
(1) A Court of Appeal for
Tuvalu is established.
(2) The
Court of Appeal shall be constituted as provided for by an Act of
Parliament.
(3) Parliament shall
not proceed upon a Bill for an Act referred to in subsection (2) after its first
reading in Parliament unless
the Speaker has obtained, and has presented to
Parliament, a report from the Chief Justice on the
proposal.
135.
Jurisdiction of the Court of
Appeal
(1) Subject to-
(a) section 41(2) (which relates to frivolous or vexatious appeals against determinations as to contraventions of the Bill of Rights); and
(b) section 100(2) (appeals on questions as to membership of Parliament); and
(c) any Act of Parliament,
the Court of Appeal has
jurisdiction to determine appeals from decisions of the High Court, whether in
the exercise of original jurisdiction
or in the exercise of appellate
jurisdiction.
(2) No Act of
Parliament made for the purposes of subsection (1) affects the rights of appeal
provided for by Division 5
(Enforcement of the
Bill of Rights) of Part
II.
Division 4 - The Sovereign In Council
136.
Jurisdiction of the Sovereign in Council
(1) An appeal may be made from a
decision of the Court of Appeal to the Sovereign in Council-
(a) with the leave of the Court of Appeal-
(i) in the case of a final decision on a question as to the interpretation or application of this Constitution; or
(ii) in the case of a final decision in proceedings under Division 5 (Enforcement of the Bill of Rights) of Part II;
(iii) in the case of-
(A ) a final decision; or
(B) an interlocutory decision, that is to say, a decision of a kind referred to in subsection (2),
in any proceedings, where in the opinion of the Court of Appeal the question involved in the appeal is one which, because of its great general or public importance, or otherwise, ought to be submitted to the Sovereign in Council; and
(b) in such other cases and on such conditions as are provided for by or under an Act of Parliament.
(2) In subsection
(l)(a)(iii)(B), "interlocutory decision" refers to a decision
which-
(a) is made during or for the purposes of some legal proceedings; and
(b) is incidental to those proceedings; and
(c) does not finally dispose of those proceedings.
PART VIII
PUBLIC EMPLOYMENT
Division 1. - General
137.
Interpretation of Part VIII
In this
Part-
"personnel matter" means any service decision or action concerning an individual, including-
(a) appointment and confirmation of appointment; and
(b) promotion and demotion; and
(c) transfer from office to office or from place to place (except movement within a common cadre); and
(d) disciplinary action; and
(e) suspension; and
(f) cessation or termination of employment (except cessation or termination at the end of the person's regular period of employment as determined according to law).
138.
Application of Part V111
(1) This
Part does not apply to or in relation to-
(a) consultants, advisers or agents (without executive authority or power of direction of members of a State Service) who are-
(i) employed on an honorary basis: or
(ii) remunerated by fees or commission only, with or without travelling or subsistence allowances, expense allowances or similar allowances; or
(b) except as provided by or under an Act of Parliament-
(i) the holders of offices listed in section 161 (application of Division 5); or
(ii) the members of the staff of statutory authorities; or
(iii) members of, or members of the staff of, local governments or authorities.
(2) Nothing in this Part
prevents the creation of-
(a) statutory offices; or
(b) statutory corporations or authorities; or
(c) statutory or administrative commissions, boards or committees, or similar bodies,
or the determination, in
accordance with law, of conditions of employment relating to
them.
139. The
State Services
(1) Subject to this
Part, Acts of Parliament shall make provision for and in relation
to-
(a) a Public Service; and
(b) the Tuvalu Police.
(2) Subject to this Part, Acts
of Parliament may make provision for and in relation to-
(a) a Prison Service; and
(b) other State Services of Tuvalu.
140.
Creation etc., of offices, etc., in State
Services
Subject to any Act of
Parliament, the Cabinet may-
(a) create or abolish offices or positions in State Services; and
(b) determine the qualifications for offices or positions in State Services; and
(c) prescribe the functions of offices or positions in State Services.
141.
Appointments subject to approval, etc.
(1) Except as provided in this
Constitution, this section does not apply to or in relation to any office or
position established by
this
Constitution.
(2) Nothing in this
Part prevents an appointment to, or other service action in relation to, an
office or position in a State Service
from being made subject to-
(a) approval by Parliament, or by any other person or authority; or
(b) consultation with Parliament or with the members of Parliament, or with any other person or authority.
142.
Localization
(1) In this
section-
"localization" means preference in public employment (either generally or in respect of an office or position, or a class of offices or positions) for-
(a) citizens of Tuvalu; or
(b) persons whose usual places of residence (apart from the requirements of employment) are in Tuvalu; or
(c) persons having some other special connection with Tuvalu,
including the replacement of the holders of offices or positions who do not have the qualifications required by the policy.
(2) A localization policy or
programme may be laid down-
(a) by or under an Act of Parliament; or
(b) by decision of the Cabinet, approved by Parliament by resolution.
(3) Nothing in a policy or
programme laid down in accordance with subsection (2)(b) affects any right to
termination or retirement
benefits, or to compensation, otherwise possessed by
any person affected by it.
(4)
Nothing in this Part, including Division 5
(Removal, etc., of
Certain Officials), or in Part II
(Bill of
Rights) prevents the implementation of
any localization policy or programme laid down under this
section.
Division 2. - The Public Service Commission
143.
Establishment of the Commission
A
Public Service Commission is
established.
144.
Composition of the Commission
The
Public Service Commission shall consist of a Chairman and three other
members.
145.
Appointment of members of the
Commission
(1) The members of the
Public Service Commission shall be appointed by the Head of State, acting in
accordance with the advice of
the
Cabinet.
(2) A person is not
qualified for appointment as a member of the Commission if-
(a) he is a member of Parliament; or
(b) he is a candidate for election as a member of Parliament, or
(c) he is the holder of-
(i) any other office or position established by this Constitution; or
(ii) an office or position in a State Service, or
(iii) any other office or position prescribed for the purposes of this subsection by or under an Act of Parliament.
146.
Remuneration, etc., of members of the
Commission
(1) The salary or other
remuneration of the Chairman and the other members of the Public Service
Commission are as provided for in
section 169
(remuneration of
certain
officials).
(2)
The other conditions of employment of a member of the Commission are as
prescribed by or under an Act of
Parliament.
147.
Tenure of office of members of the
Commission
(1) A member of the Public
Service Commission vacates his office or position-
(a) if he is removed from office under Division 5 (Removal etc., of Certain Officials); or
(b) subject to subsection (2), if he resigns by notice in writing to the Head of State; or
(c) if he ceases to be qualified for appointment by virtue of section 145(2) (which relates to disqualification from appointment): or
(d) at the end of the period of four years after the date of his appointment.
(2) A resignation under
subsection (1)(b) takes effect on the date on which it is received by the Head
of State, or on such later
date as is fixed by agreement between the member and
the Minister responsible for Public Service
matters.
148.
Exclusion of members of the Commission from certain
employment
(1) This section does not
apply to a person who has been acting temporarily in the office of a member of
the Public Service Commission
only for a period of less than six consecutive
months.
(2) Nothing in this
section prevents other or additional disqualifications being imposed by or under
an Act of Parliament or-
(a) a member or former member of the Public Service Commission, or
(b) a person referred to in subsection (1),
because of his membership or
former membership of the
Commission.
(3) A member of the
Public Service Commission is not eligible for appointment to any office or
position referred to in section 145(2)(c)
(which relates to
certain offices and positions the holders of which are disqualified from
appointment to the Public Service
Commission).
(4)
A former member of the Public Service Commission is not eligible for appointment
to any office or position referred to in section
145(2)(c)
(which relates to
certain offices and positions the holders of which are disqualified from
appointment to the Public Service
Commission) before the end of the period
of two years after the date on which he ceased, or last ceased, to be a member
of the Commission.
Division 3. - General Functions of the Public Service Commission
149.
Functions of the Commission
(1)
Subject to this Constitution and in particular to section 150
(independence of the
Commission), and to any Act of
Parliament, the Public Service Commission is responsible for-
(a) the efficient management and control of the Public Service in relation to matters referred to in paragraphs (a)-(f) of the definition "personnel matters" in section 137 (interpretation of Part VIII); and
(b) all personnel matters connected with the Public Service; and
(c) such matters in relation to the other State Services and the services of other governmental bodies as are prescribed,
and has such other functions
as are prescribed.
(2) Subject to
section 150
(independence of the
Commission), the Public Service
Commission-
(a) may at any time; and
(b) shall at the request of the Minister responsible for Public Service matters,
inform or advise the Cabinet
as to any matter within the functions of the
Commission.
150.
Independence of the Commission
(1)
Subject to section 15
(independence)
of Schedule 1, in personnel matters the Public Service Commission shall comply
with any general directions as to policy given by
the Cabinet, but otherwise is
not subject to direction or control by any other person or
authority.
(2) A policy direction
given under subsection (1)-
(a) shall be published in any manner prescribed for the publication of subordinate legislation; and
(b) shall immediately be forwarded by the Minister responsible for Public Service matters to the Speaker, for presentation to Parliament.
(3) Except in relation to
personnel matters, the Public Service Commission is responsible to the Cabinet
for the performance of its
functions.
151.
Appeals within State Services
(1) The
independence conferred on the Public Service Commission by section 150
(independence of the
Commission) is not affected by any
provision of an Act of Parliament providing for an appeal, to an independent
tribunal or authority established
by an Act of Parliament, from-
(a) a decision of the Commission; or
(b) any recommendation or advice to the Commission; or
(c) any advice proposed to be given by the Commission to the Head of State
(2) The provisions of
section 150
(independence of the
Commission) and of subsection (1) apply
to and in relation to any tribunal or authority that may be established under
subsection (1) in the
same way as they apply to and in relation to the Public
Service
Commission.
152.
Procedures, etc., of the
Commission
Subject to any Act of
Parliament, the provisions of Schedule 3 (Procedures etc., of the Public Service
Commission and Certain Tribunals)
apply to and in respect of the Public Service
Commission.
153.
Delegation by the Commission
(1) With
the approval of the Minister responsible for Public Service matters, the Public
Service Commission may, in writing, delegate
to any person any of its
functions.
(2) A delegation under
subsection (1)-
(a) may apply generally, or in respect of any part of Tuvalu or of any place specified in the instrument of delegation; and
(b) may be made subject to such conditions, limitations and restrictions as are so specified.
(3) A delegation under this
section is revocable, in writing, at will, and no delegation prevents the
performance of a function by
the
Commission.
(4) If a delegation
under this section relates to personnel matters, in performing the delegated
function the delegate is subject
to the same freedom from direction or control
as the Commission, and the provisions of sections 150
(independence of the
Commission) and 151,
(appeals with State
Services) with the necessary
modifications, apply accordingly.
Division 4. - Personnel Functions
154.
Application of Division 4
(1) This
Division applies to and in relation to any Act of Parliament made for the
purposes of section 139
(the State
Services) establishing a State Service,
and to any regulations or other subsidiary legislation made under such an
Act.
(2) The provisions of this
Division shall be read subject to this Constitution and in particular
to-
(a) section 142 (localization); and
(b) Division 5 (Removal, etc., of Certain Officials).
155.
The Public Service
Authority in
relation to personnel matters in respect of members of the Public Service shall
be vested in the Public Service
Commission.
156.
Magistrates
(1) The provisions of this
section apply in relation to a magistrate of a subordinate court irrespective of
whether he is a member
of the Public
Service.
(2) Authority in relation
to personnel matters in respect of magistrates of subordinate courts in their
capacity as magistrates shall
be vested in the Head of State, acting in
accordance with the advice of the Public Service Commission, subject to the
approval, either
general or specific, of the Chief Justice or a person
authorized by him for the
purpose.
157.
The Police Force
(1) An office of
Chief of Police is established as an office in the Tuvalu
Police.
(2) The Chief of Police
shall be appointed in accordance with section 159(5)(a)
(which relates to the
appointment of the Chief of
Police).
(3)
Excluding the Chief of Police, members of the Tuvalu Police of or above the rank
of Inspector (or the equivalent rank as defined
by or under an Act of
Parliament) may be appointed, removed and disciplined in the same manner, with
any necessary modifications,
as members of the Public Service under section 155
(the Public
Service).
(4)
Other members of the Tuvalu Police may be appointed, removed and disciplined by
the Chief of Police, subject to appeal to the
Public Service Commission in the
case of removal or disciplinary action.
158 Secretaries to Ministries
(1) In this
section-
(a) "Secretary" means the Secretary or other head of a Ministry or office of Government (being a member of the Public Service) who is directly responsible to a Minister, but does not include the Secretary to Government; and
(b) a reference to the appointment of a Secretary includes a reference to-
(i) his appointment from outside the Public Service; and
(ii) his promotion or transfer from some other office outside a common cadre.
(2)
Secretaries-
(a) shall be appointed only with the concurrence of the Cabinet; and
(b) form a common cadre or (as prescribed by or under an Act of Parliament) common cadres, to which may be added other senior members (as so prescribed ) of the Public Service.
(3) The Cabinet may at any
time request the Public Service Commission to advise the Head of State to
appoint a particular person to
be a
Secretary.
(4) If the Cabinet
makes a request under subsection (3), the Public Service Commission shall
consider the request and advise of its
decision.
(5) No Secretary shall
be appointed from outside the State Services unless the Public Service
Commission determines that the appointee
has clearly more merit than a serving
member of the State
Services.
159.
Special cases of appointments
(1) This
section shall be read subject to section 142
(localization).
(2)
The Auditor-General-
(a) shall be appointed by the Head of State, acting in accordance with the advice of the Public Service Commission, and with the approval of Parliament signified by resolution; and
(b) may be suspended or removed from office in accordance with Division 5 (Removal, etc., of Certain Officials).
(3) The Secretary to
Government-
(a) shall be appointed by the Head of State, acting in accordance with the advice of the Public Service Commission given after consultation with the Cabinet; and
(b) may be suspended or removed from office in accordance with Division 5 (Removal, etc., of Certain Officials).
(4) The
Attorney-General-
(a) shall be appointed by the Head of State acting in accordance with the advice of the Cabinet given after consultation with the Public Service Commission; and
(b) may be suspended or removed from office in accordance with Division 5 (Removal, etc., of Certain Officials).
(5) The Chief of
Police-
(a) shall be appointed by the Head of State, acting in accordance with the advice of the Public Service Commission given after consultation with the Cabinet; and
(b) may be suspended or removed from office in accordance with Division 5 (Removal, etc., of Certain Officials).
(6) The functions of the
Head of State under this Division in relation to the personal staff of the
Governor-General who are members
of a State Service shall be exercised by the
Governor-General acting in his own deliberate judgment.
Division 5. - Removal, etc., of Certain Officials
160.
Interpretation of Division 5
In this
Division-
"the appropriate authority", in relation to an office or position to which this Division applies, means-
(a) the person or authority having power to make appointments to the office or position, acting in accordance with the prescribed manner of exercise of that power; or
(b) some other person or authority prescribed for a particular case;
"member of the appropriate authority", in a case where the appropriate authority acts in accordance with the advice of, or after consultation with, any other person or authority, includes-
(a) that other person or authority; and
(b) a member of that other authority.
161.
Application of Division 5
(1) This
Division applies to the offices of-
(a) Secretary to Government; and
(b) Attorney-General; and
(c) Auditor-General; and
(d) Chief of Police; and
(e) members of the Public Service Commission,
and any other office or
position to which this Division is applied by an Act of
Parliament.
(2) The provisions of
this Division shall be read subject to section 142
(localization).
162.
Removal of prescribed officials from
office
(1) Subject to section 164
(contract
employment), the holder of an office or
position to which this Division applies may be removed from office
only-
(a) for inability to perform properly the functions of his office or position (whether arising from infirmity of body or mind, or from some other cause), or for misbehaviour; and
(b) in accordance with this section.
(2) The holder of an
office or position to which this Division applies may be removed from office by
the appropriate authority if-
(a) the question of his removal from office has been referred to a tribunal appointed under subsection (3); and
(b) the tribunal has advised the appropriate authority that he ought to be removed from office for a reason set out in subsection (1)(a).
(3) If the Cabinet or the
appropriate authority decides that the question of removing from office the
holder of an office or position
to which this Division applies should be
investigated under this section, the Head of State, acting after consultation
with the Prime
Minister, shall appoint an independent tribunal consisting
of-
(a) a chairman who is qualified for appointment as a Judge of the High Court; and
(b) not less than one other member, with qualifications or experience relevant to the particular matter.
(4) A person is not qualified
to be appointed under subsection (3)(b) if he-
(a) is the Governor-General; or
(b) is a member of Parliament; or
(c) is a member of the appropriate authority in relation to the person concerned; or
(d) is, or has been within the preceding 12 months, a subordinate of the person concerned; or
(e) has been involved in formulating advice on the question.
(5) The tribunal shall
investigate the question and report on it to the appropriate authority, with its
advice whether the person
concerned should be removed from
office.
(6) The provisions of
Schedule 3
(Procedure, etc., of
the Public Service Commission and Certain
Tribunals) apply to and in respect of the
tribunal.
163.
Suspension of prescribed officials
(1)
If the question of removing a person from office has been referred to a tribunal
under section 162
(removal of
prescribed officials from office), the
appropriate authority may suspend him from
office.
(2) A suspension under
subsection (1)-
(a) may be lifted at any time by the appropriate authority; and
(b) ceases to have effect if the tribunal advises the appropriate authority that the person concerned should not be removed from office.
(3) A person suspended
under this section shall receive remuneration or other entitlements in
accordance with the policy in force
for the time being in the Public Service and
provided for in General Administrative
Orders.
164.
Contract employment
If-
(a) the holder of an office or position to which this Division applies is employed in that office or position under a contract (whether with the Government or otherwise); and
(b) the contract provides for his removal or suspension from office, nothing in the preceding provisions of this Division prevents his being removed or suspended in accordance with the contract.
PART
IX
FINANCE
Division 1. - Parliament and Finance
165.
Parliamentary responsibility for
finance
(1) Notwithstanding anything
in this Constitution (other than section 169
(remuneration of
certain officials), the raising and
spending of money by the Government (including the imposition of taxation and
the raising of loans) is subject
to authorization and control by Parliament, and
shall be regulated by an Act of
Parliament.
(2) For each financial
year there shall be-
(a) a National Budget, comprising estimates of-
(i) money proposed to be raised by the Government; and
(ii) money proposed to be spent by the Government,
in respect of the financial
year; and
(b) appropriations for the service of the financial year, and there may be such supplementary Budgets and supplementary appropriations as are necessary.
(3) Nothing in subsection (2)
prevents an appropriation being expressed-
(a) to continue after the end of the financial year; or
(b) to lapse before the end of the financial year.
166.
Executive initiative
(1) Except on
the recommendation of a Minister, Parliament shall not provide
for-
(a) the imposition or increase of taxation, or the raising of money by the Government; or
(b) the imposition or increase of any charge on the public funds of Tuvalu; or
(c) the alteration of any charge on the public funds of Tuvalu otherwise than by reducing it; or
(d) the compounding or remission of any debt due to the Government.
(2) Parliament may reduce
the amount of any proposal-
(a) for taxation; or
(b) for the raising of public revenue; or
(c) for any expenditure of public money.
(3) Parliament may
not-
(a) increase the amount of any proposal; or
(b) change the effect of any proposal; or
(c) change the purpose of any proposal,
referred to in subsection
(2)(a), (b) or
(c).
167. The
Consolidated Fund
(1) There shall be a
Consolidated Fund of Tuvalu, into which, subject to any Act of Parliament, all
public money shall be paid.
(2)
Acts of Parliament may make provision for or in respect of other public funds
not forming part of the Consolidated Fund, which
shall be administered and dealt
with in accordance with Acts of
Parliament.
168.
Accounting, etc., for public money
(1)
All money of or under the control of the Government shall be dealt with and
properly accounted for in accordance with
law.
(2) No money of or under the
control of the Government shall be spent except as provided by this Constitution
or by or under an Act
of
Parliament.
169.
Remuneration of certain officials
(1)
This section applies to the offices of-
(a) Governor-General; and
(b) Speaker; and
(c) Prime Minister and other Ministers; and
(d) other members: of Parliament; and
(e) Judges of the High Court; and
(f) Attorney-General; and
(g) Auditor-General; and
(h) Chief of Police; and
(i) members of the Public Service Commission.
(2) Subject to this
section, the holders of the offices to which this section applies shall be paid
such salaries or other remuneration
and such allowances as are specifically
prescribed by an Act of
Parliament.
(3) The remuneration
and allowances referred to in subsection (2) are charged on and shall be paid
out of the Consolidated Fund without
appropriation otherwise than by this
section.
(4) Subject to
subsections (5) and (6), the remuneration and allowances payable to the holder
of an office to which this section applies
(other than allowances which are
specifically excluded by Act of Parliament from the operation of this
subsection) shall not be altered
to his disadvantage after his
appointment.
(5) Subsection (4)
does not apply in respect of any reduction in remuneration or allowances which
is part of a general reduction applied
proportionately to-
(a) all offices to which this section applies; and
(b) all other offices the remuneration of which is specifically prescribed by Act of Parliament.
(6) For the purposes of
subsection (4), where any remuneration or allowance to which that subsection
applies is based, whether in
law or in practice, on a choice made by the holder
of the office in question, the remuneration or allowance which he chooses shall
be considered to be more advantageous to him than any other which he might have
chosen.
Division 2. - The Auditor-General
170.
Establishment of the office of
Auditor-General
(1) An office of
Auditor-General for Tuvalu is
established.
(2) The
Auditor-General shall be appointed in accordance with section 159(2)(a)
(which relates to the
appointment of the
Auditor-General).
171.
Independence of the office of
Auditor-General
Subject to section 15
(independence)
of Schedule 1, in the performance of his functions under this Constitution and
any other law the Auditor-General is not subject
to the direction or control of
any other person or
body.
172.
Functions of the Auditor-General
(1)
The Auditor-General shall inspect and audit, and report at least once in every
financial year to Parliament on-
(a) the public accounts of Tuvalu; and
(b) the control of public money and property of Tuvalu; and
(c) all transactions with or concerning public money or property of Tuvalu,
and has such other functions
as are, subject to subsection (4), conferred on him by an Act of
Parliament.
(2) Unless other
provision is made by or under an Act of Parliament in respect of the inspection
and audit of them, subsection (1)
extends to the accounts, finances and property
of-
(a) each branch, department, agency and instrumentality of the Government; and
(b) each body set up by an Act of Parliament, or by executive or administrative act of the Government, for governmental or official purposes.
(3) Even if other
provision for inspection or audit is made as referred to in subsection (2), the
Auditor-General may, if he thinks
it proper to do so, inspect and audit, and
report to Parliament on, any accounts, finances or property of an organization
referred
to in that subsection so far as they or it relate to, or consist of or
are derived from, public money or property of
Tuvalu.
(4) An Act of Parliament
may-
(a) expand, and provide in more detail for, the functions of the Auditor-General under the preceding provisions of this section; and
(b) confer on the Auditor-General additional functions (including functions of the nature of an efficiency audit or value-for-money audit), not inconsistent with the performance of the functions conferred by those provisions.
(5) Subject to any Act of
Parliament, the functions of the Auditor-General may be
performed-
(a) in person; or
(b) through officers responsible to him, acting in accordance with his general or specific instructions,
and references to the
Auditor-General include references to officers so acting.
PART
X
TRANSITIONAL
173.
Transitional provisions
The
transitional provisions specified in Schedule 5 shall have effect
notwithstanding anything contained in this Constitution.
SCHEDULES
SCHEDULE
1
(Section
4)
Rules for
the Interpretation of the Constitution
1.
Application of Schedule 1
(1) The
provisions of this Schedule apply in the interpretation of this Constitution,
except where in relation to a particular provision
of this Constitution the
context dictates otherwise.
(2)
Except where otherwise stated in this Constitution, the provisions of this
Schedule do not apply to any other law unless they
are adopted by law for the
purpose.
(3) This Schedule shall
be read subject to section 4
(interpretation of
the
Constitution)
2.
General definitions
(1) In this
Constitution-
"act" includes omission and failure to act;
"Act" or "Act of Parliament" means, in accordance with section 86 (manner of exercise of the law-making power), a Bill passed by Parliament and assented to by the Head of State;
"alteration", in relation to all or any provisions of this Constitution or any other law, includes-
(a) their repeal, with or without re-enactment or the substitution of new provisions; and
(b) the modification of them or of their application; and
(c) their suspension, in whole or in part, or the lifting of any suspension; and
(d) the making of any provision that is inconsistent with them;
"appropriation" means the action of setting public money aside, in accordance with law, for a specified purpose;
"Appropriation Bill" means a Bill dealing only with appropriations of public money and matters incidental to appropriations of public money;
"the Attorney-General" means the Attorney-General for Tuvalu whose office is provided for by section 79 (the Attorney-General);
"the Auditor-General" means the Auditor-General for Tuvalu whose office is provided for by section 170 (establishment of the office of Auditor-General);
"Bill" means a proposed Act of Parliament that has been introduced into Parliament;
"bye-election" means an election of a member of Parliament consequent on a casual vacancy;
"caretaker government" means a Cabinet continuing in office under section 71 (caretaker governments);
"the Chief Justice" means the Chief Justice of Tuvalu whose office is provided for by section 122 (the Chief Justice of Tuvalu);
"the Clerk of Parliament" means the Clerk of Parliament whose office is provided for by section 115 (Clerk of Parliament and other officers);
"committee of Parliament" means a committee-
(a) appointed in accordance with the Rules of Procedure of Parliament, or in accordance with an Act of Parliament; and
(b) consisting of members of Parliament with or without other persons, and includes-
(c) a committee of the whole Parliament; and
(d) a subcommittee of a committee of Parliament as described in the preceding provisions of this definition;
"Commonwealth country" means a country declared by or under an Act of Parliament to be a Commonwealth country, and includes a dependency of such a country;
"the Court of Appeal" means the Court of Appeal for Tuvalu established under section 134 (establishment of the Court of Appeal);
"the Deputy Prime Minister" means the holder of the office allowed for by section 62(4) (which allows one of the Ministers to be appointed Deputy Prime Minister), and includes-
(a) a person appointed under section 69 (acting Ministers) to perform temporarily the functions of the Deputy Prime Minister; and
(b) a person performing the functions of the Deputy Prime Minister in a caretaker government;
"disciplinary law" means a law regulating a disciplined force;
"disciplined force" means-
(a) a naval, military or air force, or a coastguard or maritime surveillance service, whether of Tuvalu or of some other country; or
(b) the Tuvalu Police or any other police force established by Act of Parliament; or
(c) any separate Prison Service established by Act of Parliament;
"electoral district", means an electoral district for the purpose of the election of members of Parliament, established under section 82 (composition of Parliament);
"final decision", in relation to any judicial proceedings, means a decision that finally disposes of the proceedings, whether or not it is subject to appeal or review;
"financial year" means the period of 12 months ending on 31 December in any year, or such other period of 12 months as is fixed by or under an Act of Parliament;
"function" includes power, duty and responsibility;
"general election" means a general election of the members of Parliament consequent on the dissolution of Parliament;
"the Government" means the executive government of Tuvalu;
"governmental body" means-
(a) the Government; or
(b) a local government or authority; or
(c) a department. branch' agency or instrumentality of the Government or of a local government or authority; or
(d) a body set up by law, or by administrative or executive act, for governmental or official purposes;
''the Governor-General" means the Governor-General of Tuvalu whose office is provided for by section 54 (establishment of office of Governor-General), and includes-
(a) a person appointed in accordance with section 56(2) (which relates to the appointment of an acting Governor-General); or
(b) the Speaker, performing under section 56 (acting Governor-General) any of the functions of the Governor-General;
"the Head of State" means-
(a) the Sovereign; or
(b) the Governor-General, as the representative of the Sovereign;
"the High Court" means the High Court of Tuvalu established by section 190 (establishment of the High Court);
"the Independence Constitution" means the Constitution set out in the Schedule to the Tuvalu Independence Order 1978 of the United Kingdom;
"Independence Day" means 1 October 1978;
"Judge", or "Judge of the High Court", means the Chief Justice, or a Judge of the High Court appointed under section 123 (other Judges);
"meeting", in relation to Parliament, means any period of sitting days during which Parliament-
(a) is not prorogued; and
(b) does not adjourn indefinitely or to the call of the Speaker;
"member", in relation to a disciplined force, includes a person who, under the disciplinary law of that force, is subject to the discipline of that force;
"Minister" means the Prime Minister or another Minister appointed under section 67 (the other Ministers), and includes-
(a) a person appointed under section 69 (acting Ministers) to perform temporarily the functions of a Minister; and
(b) a person performing the functions of a Minister in a caretaker government;
"month" means calendar month;
"offence" means a contravention of or a failure to comply with a law of Tuvalu;
"Parliament" means the Parliament established for Tuvalu by section 81 (establishment of Parliament);
"person" includes-
(a) any body of persons, corporate or unincorporate; and
(b) the holder (whether substantive or other) of-
(i) any office or position in a State Service; or
(ii) any office or position established by this Constitution or by or under an Act of Parliament;
"prescribed'' means prescribed by this Constitution, or by or under an Act of Parliament;
"the Prime Minister'' means the Prime Minister whose office is provided for by section 62(1) (which relates to the establishment of an office of Prime Minister), and includes-
(a) a Minister performing the functions of the Prime Minister under section 68 (acting Prime Minister); and
(b) a person performing the functions of the Prime Minister in a caretaker Government;
"prorogation" means the prorogation of Parliament under section 117 (prorogation of Parliament);
"public officer" means a member of the Public Service;
"Public Service" means the permanent civil administrative Ministries controlled by the Secretary to Government or a Secretary and subject to Executive supervision;
"rules of court" means any law made by a competent authority for regulating the practice and procedure of a court;
"the rules of Procedure of Parliament" means any rules made under section 108 "(Rules of Procedure)";
"the Secretary to Government" means the Secretary to Government whose office is provided for in section 78 (Secretary to Government);
"session", in relation to Parliament, means the series of sitting days occurring during the period-
(a) commencing with the first sitting day after Parliament is prorogued, or after a general election; and
(b) ending on the day on which Parliament is next prorogued or dissolved without being prorogued;
"sign" includes mark;
"sitting day" means a day on which Parliament actually meets;
"the Sovereign" means the Sovereign of Tuvalu;
"the Sovereign", in the sense of the Sovereign of Tuvalu, has the meaning given to that expression by section 13 (references to the Sovereign of Tuvalu) of this Schedule;
"the Sovereign", in the sense of the Sovereign of the United Kingdom, has the meaning given to that expression by section 14 (references to the Sovereign of the United Kingdom) of this Schedule;
"the Sovereign in Council" means the Sovereign of the United Kingdom, acting by and with the advice of the Judicial Committee of his Privy Council and in accordance with the laws of England from time to time applicable in relation to appeals to the Privy Council or to the Judicial Committee;
"the Speaker" means the Speaker of Parliament whose office is provided for by section 103 (establishment of the office of Speaker), and includes a member of Parliament performing the functions of the Speaker under section 107 (acting Speaker);
"State Service" means a service referred to in section 139 (the .State Services);
"subordinate court'' means a court other than-
(a) the Sovereign in Council; and
(b) the Court of Appeal; and
(c) the High Court;
"superior court", in relation to another court, means a court which has jurisdiction to determine appeals from, or to review, decisions of the other court;
"taxation" includes rates, charges, fees and imposts of any kind;
"the Tuvalu Police" means the State Service provided for by section 139(1)(b) (which relates to the establishment of the Tuvalu Police);
"the United Kingdom" means the United Kingdom of Great Britain and Northern Ireland;
"writing" includes any method of reprinting or reproducing words in a visible form;
"year" means any period of 12 months.
(2) Unless the context
requires otherwise, where an expression is defined for any purpose in this
Schedule or otherwise in this Constitution
then for that purpose all grammatical
variations and cognate and related expressions are to be understood in the same
sense.
(3) Unless the context
requires otherwise, a reference in this Constitution to an institution, office,
position or thing is a reference
to the appropriate institution, office,
position or thing provided for by this
Constitution.
3.
Form of the Constitution
(1) The
Preamble forms part of this Constitution, and establishes principles upon which
this Constitution, and the conduct of the
public affairs of Tuvalu, are to be
based.
(2) The Schedules to this
Constitution form part of this
Constitution.
(3) The head-notes
to the sections of this Constitution do not form part of this Constitution, but
other headings do form part of
it.
(4) A reference in this
Constitution to a subdivision of this Constitution without further
identification shall be read as a reference
to the corresponding subdivision of
the body of this Constitution (that is, excluding the Preamble and the
Schedules).
4.
Meaning of language used
(1) This
Constitution is intended to be read as a w
hole.
(2) All provisions of this
Constitution, and all words, expressions and statements in this Constitution,
shall be given their fair
and liberal meaning without unnecessary
technicality.
5.
Gender and number
In this
Constitution-
(a) the masculine gender includes the female gender; and
(b) the feminine gender includes the masculine gender, and
(c) the singular number includes the plural; and
(d) the plural number includes the singular.
6. Time
limits
(1) Where no time is prescribed
by this Constitution within which an act is required or permitted to be done,
the act shall, or may,
as the case requires, be done with all convenient speed
and as often as is necessary.
(2)
Where-
(a) a time limit is imposed by this Constitution for any purpose; and
(b) in a particular case it is not practicable to comply with the limit,
the limit shall be deemed to
be extended by whatever period is necessary to make compliance
practicable.
(3) The operation of
subsection (2) is not excluded by a provision that unqualifiedly specifies a
time limit or a maximum time
limit.
7.
Attainment of age
For all purposes of
this Constitution, a person attains a particular age at the first moment of the
relevant anniversary of his
birth.
8.
Powers of majority, and quorums
(1)
Where this Constitution requires or permits an act to be done by more than two
persons, a majority of them may do
it.
(2) Subsection (1) does not
affect any requirement of a quorum, and, subject to subsection (3), where no
quorum is prescribed by this
Constitution the quorum is the total
membership.
(3) A power conferred
by this Constitution to determine the procedures of a body includes power to
determine a quorum (not being fewer
than a majority of the total
membership).
9.
References to "total membership"
A
reference in this Constitution to the total membership of a body or authority is
a reference to the total number of seats or places
on the body or authority,
irrespective of whether any of them are
vacant.
10.
Performance of constitutional
functions
(1) Where this Constitution
confers a power or imposes a duty, the power may be exercised or the duty shall
be performed, as the case
may be, from time to time as occasion
requires.
(2) Where this
Constitution confers a function on the holder of an office or position as such,
the function may be performed by the
holder (whether substantive or other) of
the office or position from time to
time.
(3) Where this Constitution
confers a power to make an instrument or a decision (other than a judicial
decision), that power includes
power exercisable in the same manner and subject
to the same conditions (if any), to revoke, vary or alter the instrument or
decision.
11 Appointments, etc., requiring prior approval
(1) Where by any provision of
this Constitution an appointment or other act requires the prior approval of
Parliament or of any other
person or authority, and -
(a) it is for any reason not practicable to apply for the approval immediately; and
(b) there is an immediate need to make the appointment or to do the act,
the appointment may be
made, or the act may be done, as the case may be, subject to approval being
applied for at the first reasonably
available
opportunity.
(2) If later approval
is refused, the refusal takes effect as a disallowance of the appointment or
act.
(3) The decision of the
person or authority whose approval is required as to what is the first
reasonably available opportunity for
the purposes of subsection (2) is
final.
12.
Official appointments, etc.
(1) The
succeeding provisions of this section shall, in relation to any office or
position, be read subject to any provision of this
Constitution relating to that
office or position.
(2) In this
Constitution, a reference to the holder of an office or position by reference to
the description of his office or position
includes a reference to any who is for
the time being lawfully acting in, or performing the functions of, the office or
position.
(3) Where this
Constitution confers power to make an appointment to act in, or to perform the
functions of, an office or position,
the power includes power-
(a) to remove or suspend a person so appointed: and
(b) to appoint another person temporarily in the place of a person so removed or suspended; and
(c) where the holder of the office or position is-
(i) unavailable; or
(ii) unable to perform the functions of the office or position; to appoint a person temporarily in his place; and
(d) if the office of position is vacant, to appoint a person to act in it until it is filled on a substantive basis,
subject to compliance with any
conditions to which the exercise of the original power of appointment was
subject.
(4) In a case to which
subsection (3)(c) applies, no question whether the need for the exercise of the
power has arisen, or has ceased,
shall be considered in any
court.
(5) A reference in this
Constitution to a power to remove from office the holder of an office or
position includes a reference to
a power-
(a) to require the holder of the office or position to retire; or
(b) to terminate any contract under which the holder of the office or position is employed; or
(c) to determine whether any contract referred to in paragraph (b) should be renewed,
but nothing in this section
confers any power to require a Judge of the High Court, the Auditor-General or
the Chief of Police to
retire.
(6)
Except where this Constitution provides otherwise the holder of an office or
position established by this Constitution may resign
from the office or position
by written notice to the Secretary to Government, and the resignation takes
effect-
(a) on a date specified in the notice; or
(b) when the notice is received by the Secretary to Government,
whichever is the later, but
the resignation may be withdrawn, with the consent of the Secretary to
Government, at any time before
it takes
effect.
(7) When the holder of an
office or position is on leave of absence pending relinquishment of the office
or position-
(a) another person may be appointed to the office or position; and
(b) the person so appointed shall, for the performance of the functions of the office or position, be considered to be the sole holder of the office or position.
(8) For the purposes of this
Constitution, a person shall not be considered to be the holder of, or to be
acting in, an office or
position by reason only of the fact that-
(a) he is on leave of absence pending relinquishment of the office or position; or
(b) he is on leave without pay from the office or position; or
(c) he is receiving a pension or some other similar allowance; or
(d) he is a retired or reserve member of a naval, military or air force, or a special constable; or
(e) he is a member of the staff of a local government or authority; or
(f) he is the holder of an office or position in the service of the Government, or is performing functions on behalf of the Government, if the only remuneration that he receives for it is by way of travelling or subsistence allowance, expense allowance or any similar allowance.
(9) Subject to any
provision of this Constitution relating to qualifications for, or
disqualifications from, appointment, a person
who has been the holder of an
office or position is eligible for reappointment to that office or
position.
13.
References to the Sovereign of
Tuvalu
(1) Subject to subsection (2),
a reference in this Constitution or any other law to the Sovereign of Tuvalu
includes a reference to-
(a) the Heirs and Successors of the Sovereign as declared or ascertained by or under an Act of Parliament; and
(b) any person exercising the whole or the relevant part of the sovereignty of Tuvalu in accordance with an Act of Parliament.
(2) Until an Act of
Parliament is made for the purposes of subsection (1)(a) or (b), a reference to
the Sovereign of Tuvalu shall
be read as including a reference
to-
(a) the Sovereign of the United Kingdom; or
(b) any person exercising the whole or the relevant part of the sovereignty of the United Kingdom,
as the case requires, in
accordance with the law in force in
England.
14.
References to the Sovereign of the United
Kingdom
A reference in this
Constitution or in any other law to the Sovereign of the United Kingdom includes
a reference to any person exercising
the whole or the relevant part of the
sovereignty of the United Kingdom in accordance with the law in force in
England.
15.
Independence
Where this Constitution
provides that any person or authority is not subject to the direction or control
of any other person or authority,
that provision does not
prevent-
(a) direction or control by a court in the performance of judicial functions conferred on it by law; and
(b) the regulation, by or under an Act of Parliament, of the performance of the functions of the person or authority.
16.
Regulation of acts, etc.
Where any
provision of this Constitution provides for the regulation of an act or thing,
unless the context indicates otherwise that
provision does not authorize the
prohibition of the act or thing, whether in law or in
practice.
17.
Impracticability of obtaining advice, etc.
(1) In this section-
"the authorizing provision" means the relevant provision of this Constitution referred to in subsection (2)(a).
"the prescribed authority" has the meaning given to it by subsection (2)(a).
(2) This section applies
in a case where-
(a) a provision of this Constitution requires or permits the Head of State, or any other person or authority, (referred to in this section as "the prescribed authority") to act-
(i) in accordance with the advice of some other person or authority; or
(ii) after consultation with some other person or authority; or
(iii) subject to the approval of some other person or authority; and
(b) the prescribed authority, acting in his or its own deliberate judgment, certifies in writing that he or it is satisfied that it is impracticable, in the circumstances, to comply, or to comply fully, with the authorizing provision.
(3) In a case to which
this section applies the prescribed authority, acting in his or its own
deliberate judgment, may act after
consultation with such persons (including any
available persons, and any available members of the authority, referred to in
subsection
(2)(a)(i), (ii) or (iii) as he or it, acting in his or its own
deliberate judgment, thinks proper to
consult.
(4) If in a case to which
this section applies the prescribed authority acts as provided for by subsection
(3)-
(a) he or it shall, as soon as practicable, report the circumstances to-
(i) the relevant person or authority referred to in subsection (2)(a)(i) (ii) or (iii); and
(ii) the Speaker, for presentation to Parliament; and
(b) as soon as practicable, and to the extent that it is practicable, the authorizing provision shall be complied with.
18.
Acts in "deliberate judgment"
Where
this Constitution requires or permits an act to be done in the deliberate
judgment of a person or authority-
(a) the exercise of the judgment must not be arbitrary or capricious; and
(b) except to the extent of paragraph (a), no question as to the exercise of the judgment shall be considered in any court.
19.
Effect of repeal
(1) In this section,
"repeal" includes revocation. cancellation, suspension and
expiry.
(2) The repeal of any
provision of this Constitution does not-
(a) revive anything that was not in force or existing immediately before the repeal took effect; or
(b) affect the previous operation of the repealed provision, or anything duly done or suffered under it; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed provision; or
(d) affect any penalty, forfeiture or punishment incurred in respect of an offence against the repealed provision; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
(3) Any investigation,
legal proceedings or remedy referred to in subsection (2)(e) may be instituted,
continued or enforced, and
any penalty, forfeiture or punishment referred to in
that paragraph may be imposed, as if the repealed provision had continued in
force.
(4) If a provision of this
Constitution is repealed and re-enacted (with or without modification), a
reference in any other law to
the repealed provision shall, unless the context
indicates otherwise, be read as a reference to the substituted
provision.
20.
Effect of disallowance
Where this
Constitution provides that a law or any other thing may be disallowed, the
disallowance takes effect in the same way as
a repeal, revocation or
cancellation would take effect, except that if the disallowed law or thing
altered any other law or thing
the disallowance revives the other law, or the
previous situation, as the case may be as in existence immediately before the
disallowance.
21.
Multiple oaths, etc.
(1) A reference
in this section to the holding of an office or position includes a reference to
the temporary performance of the functions
of the office or
position.
(2) If on or before
commencing to hold an office or position established by this Constitution the
holder is required to take an oath,
or make a declaration, of allegiance, he is
not required to do so again for any purpose during any continuous term for which
he holds
the office or
position.
(3)
Where-
(a) the holder of an office or position established by this Constitution is required or permitted to perform temporarily the functions of another such office or position; and
(b) it is a requirement of the second office or position that the holder takes an oath or makes an affirmation,
then, in addition to the
effect of subsection (2), no matter how often he performs temporarily those
functions during any continuous
period for which he holds the first office or
position he is not required to take the oath or make the affirmation referred to
in
paragraph (b) more than once.
SCHEDULE
2
(Section
63)
Election and Appointment of the Prime Minister
1.
Functions of the Governor-General
The
functions of the Governor-General under this Schedule shall be performed in his
own deliberate
judgment.
2.
Election meetings
(1) As soon as
practicable after-
(a) a general election; or
(b) subject to section 71 (caretaker governments) of this Constitution, the occurrence of a vacancy in the office of Prime Minister, the Governor-General shall call a meeting of the members of Parliament for the purpose of electing a Prime Minister.
(2) If the vacancy
occurred because of-
(a) the death of the Prime Minister; or
(b) the Prime Minister's ceasing to be a member of Parliament for any reason other than the dissolution of Parliament,
the meeting shall not be
called until after the declaration of the result of the consequent
bye-election.
(3) The
Governor-General shall issue to each member of Parliament a notice
stating-
(a) the date, time and place of the meeting; and
(b) the date and time on or before which, and the place at which, nominations are to be delivered to the Governor-General.
(4) The date fixed for the
purposes of subsection (3)(b) shall be at least one day before the date fixed
for the election meeting.
(5) The
election meeting shall consider only the election of a Prime
Minister.
3.
Nominations
(1) All members of
Parliament are eligible for nomination as candidates for election as Prime
Minister.
(2) No member may
nominate more than one
candidate.
(3) A candidate may
withdraw his candidature at any time before the commencement of voting at the
election
meeting.
4.
Cancellation of proceedings
(1) If at
any stage of the proceedings a candidate-
(a) dies; or
(b) becomes, in the opinion of the Governor-General, seriously incapacitated,
the provisions of subsection
(3) apply.
(2) If-
(a) at or after the time fixed under section 2(3)(b) (which relates to the time for nominations) of this Schedule there is no candidate for election; or
(b) for any other reason the Governor-General is satisfied that the election cannot be, or is unlikely to be, successfully completed in accordance with this Schedule,
the provisions of subsection
(3) apply.
(3) In a case referred
to in subsection (1) or (2), the Governor-General may either-
(a) cancel the proceedings and commence them again; or
(b) suspend the proceedings until a later time or date.
5. List
of candidates
A list setting out all
candidates and their nominators shall be given by or by direction of the
Governor-General to each member of
Parliament before the election meeting
opens.
6.
Quorum
(1) The quorum for an election
meeting is a majority of the total membership of
Parliament.
(2) If a quorum is not
present at the time fixed under section 2(3)(a)
(which relates to the
time for the election meeting) of this
Schedule, the Governor-General shall adjourn the meeting until a time, date and
place fixed by him and announced at the
failed
meeting.
(3) If at the time and
place fixed under subsection (2) a quorum is again not present, the
Governor-General shall cancel the proceedings
and commence them
again.
7.
Conduct of the election meeting
(1)
The election meeting shall be presided over by the Governor-General, and the
election shall be conducted by
him.
(2) Each member of Parliament
has one vote at each ballot held in accordance with section 8
(conduct of the
election) of this
Schedule.
(3) For the purpose of
the counting of votes and for any other purpose relating to the conduct of the
election, the Governor-General
may request the assistance of such persons as he
thinks necessary.
(4) No person
other than-
(a) the Governor-General; or
(b) a member of Parliament; or
(c) a person whose assistance is being given as requested under subsection (3),
shall be present at the
election meeting.
(5) Subject to
this Schedule, the election meeting and the election shall be conducted in such
manner as the Governor-General
determines.
8.
Conduct of the election
(1) If there
are more candidates than one, such number of ballots shall be held as is
required to determine the result in accordance
with this
section.
(2) The ballots shall be
secret ballots.
(3) Subject to the
succeeding provisions of this section, if no candidate receives in a ballot the
votes of a majority of the total
membership of Parliament-
(a) the candidate who has the lowest number of votes shall be excluded; and
(b) a fresh ballot shall be held for the remaining candidates.
(4) If in a case to which
subsection (3) applies there is a tie between two or more candidates for the
lowest number of votes in a
ballot-
(a) not more than two special ballots shall be held to exclude one of them; and
(b) if after the second special ballot neither candidate has been excluded, the Governor-General shall decide by lot which one of them is to be excluded.
(5) When in a ballot,
whether the first ballot or a subsequent ballot, there are only two candidates,
not more than-
(a) that ballot; and
(b) two further ballots,
shall be held, and if at the
end of those ballots no candidate has received the votes of a majority of the
total membership of Parliament
the Governor-General shall cancel the election
and commence the election procedure
again.
9.
Declaration of the result
(1) If only
one candidate is nominate,. the Governor-General shall declare that candidate
elected.
(2) When the count has
been completed in each ballot, the Governor-General shall-
(a) announce the number of votes received by each candidate; and
(b) if a candidate has received the votes of a majority of the total membership of Parliament - declare that candidate to be elected
(3) Upon the election of a
Prime Minister under this Schedule, the Governor-General shall cause the
election and the name of the Prime
minister -
(a) to be made known to the public in such manner as he thinks appropriate; and
(b) to be published in any manner prescribed for the publication of subordinate legislation.
10.
Disputes
Any dispute arising out of or
in connection with the calling or conduct of an election meeting, or the conduct
of an election, under
this Schedule shall be determined by the Governor-General,
whose decision is
final.
11.
Saving of power to dissolve
Nothing in
this Schedule affects the power of the Head of State to dissolve Parliament in
accordance with section 118(3)
(which relates to
dissolution when a Prime Minister is not elected within a reasonable
period).
SCHEDULE
3
(Sections 127,
152,
162)
Procedure,
etc., of the Public
Service
Commission
and Certain Tribunals
1.
Application of Schedule 3
This
Schedule applies to the following authorities:-
(a) the Public Service Commission; and
(b) a tribunal appointed under section 127 (removal of Judges from office) to investigate the question of the removal of a Judge of the High Court; and
(c) a tribunal appointed under section 162 (removal of prescribed officials from office) to investigate the question of the removal of the holder of an office to which Division 5 (Removal, etc., of Certain Officials) of Part VIII applies.
2.
Rules
Subject to this Constitution and
to any Act of Parliament, an authority to which this Schedule applies may make
rules for regulating
its procedures and the performance of its
functions.
3.
Voting
All matters before a meeting of
an authority to which this Schedule applies shall be decided in accordance with
the majority of the
votes of the total membership of the authority, and in the
event of an equality of votes on a matter the person presiding has a casting
vote, as well as an original
vote.
4.
Absence, etc.
Subject to section 3
(voting)
of this Schedule, the validity of the proceedings of an authority to which this
Schedule applies is not affected by-
(a) any absence from a meeting; or
(b) the fact that some person who was not entitled to do so took part in the proceedings.
5. Powers
of certain tribunals
The tribunals
referred to in section 1(b) and (c)
(application of this
Schedule) of this Schedule have the same
powers as the High Court in respect of the attendance and examination of
witnesses abroad, and in
respect of the production of
documents.
6.
Procedures generally
Subject to any
rules made under section 2
(rules)
of this Schedule, an authority to which this Schedule applies may determine its
own procedures.
SCHEDULE 4
Oaths and Affirmations
(Sections 57, 72 and 112) l
1.
Oath, etc., of Allegiance
I,
..................................................., do swear
(or
solemnly affirm) that I will be faithful and bear true allegiance to the
Sovereign of Tuvalu.
(So help me
God)
2. Oath,
etc., of Office of Governor-General
I,
.................................................., do swear
(or
solemnly affirm) that I will well and truly serve the Sovereign of Tuvalu in the
office of Governor-General of Tuvalu
(or
in the performance of the functions of the Governor-General of Tuvalu under
Section 52 of the Constitution)
(So
help me God)
3.
Oath, etc., of Office of Member of
Cabinet
I,
.................................................., being a member of the
Cabinet for Tuvalu. do swear
(or
solemnly affirm) that-
I will to the best of my judgment, at all times when required to do so, freely give my counsel and advice for the good management of the affairs of Tuvalu.
I will not on any account, at any time whatsoever, disclose the counsel, advice, opinion or vote of any member of the Cabinet.
I will not, except with the authority of the Cabinet and to such extent as may be required for the good management of the affairs of Tuvalu, or as otherwise required or permitted by law, directly or indirectly reveal the business or proceedings of the Cabinet or any matter coming to my knowledge in my capacity as a member of the Cabinet.
In all things I will be a true and faithful member of the Cabinet.
(So
help me God)
SCHEDULE
5
(Section
173)
Transitional provisions
1.
Interpretation
In this
schedule-
"appointed day" means the day determined pursuant to section 4 of the Ordinance for the coming into effect of this Constitution;
"existing laws" means any Acts of the Parliament of the United Kingdom, Orders of Her Majesty in Council, Ordinances, rules, regulations, orders or other instruments having effect as part of the law of Tuvalu (whether or not they have been brought into operation) immediately before the appointed day, but does not include the Tuvalu Independence Order 1978 or the independence Constitution;
"the Ordinance" means the Constitution of Tuvalu Ordinance 1986.
2. Existing
laws
(1) Subject to this section, on
and after the appointed day all existing laws shall have effect as if they had
been made in pursuance
of this
Constitution.
(2) All existing
laws shall be construed with such changes as to names, titles, offices, persons
and institutions, and to such other
formal and non-substantial changes, as are
necessary to adapt them to the provisions of this
Constitution.
(3) The
Governor-General may, by order published in the Gazette, at any time before 1
January 1988, make such amendments to any existing
law (other than the
Ordinance) as may appear to him to be necessary or expedient for bringing that
law into conformity with any provision
of this
Constitution.
(4) Nothing in this
section shall be construed as affecting the operation of section 3
(the Constitution as
supreme law) in relation to any existing
law.
3.
Prescribed matters
Where any
matter that falls to be prescribed or otherwise provided for under this
Constitution by or under an Act of Parliament is
prescribed or otherwise
provided for by or under an existing law (including any amendment to any such
law made pursuant to section
2
(existing
laws) of this Schedule) that prescription
or provision shall, as from the appointed day, have effect (with such
modifications, adaptations,
qualifications and exceptions as may be necessary to
bring it into conformity with this Constitution) as if it had been made by or
under an Act of
Parliament.
4.
The Governor-General
(1) The person
who immediately before the appointed day holds office as Governor-General under
the Independence Constitution shall,
as from that day, hold office as
Governor-General as if he had been appointed thereto under section 55
(appointment, etc.,
of the
Governor-General).
(2)
The person who holds office as Governor-General by virtue of subsection (1)
shall be deemed to have complied with section 57
(oaths and
affirmations by the
Governor-General).
(3)
For the purpose of calculating the period of four years referred to in
subsection (3)(f) of section 55
(appointment, etc.,
of the Governor-General) in relation to
the person who holds office as Governor-General by virtue of subsection (1),
that period shall be deemed to have
commenced on the appointed day, but without
prejudice to the operation of any of the other provisions of subsection (3) of
that section.
(4) Subsection
(3)(c) of section 55
(appointment. etc.,
of the Governor-General) shall not apply
in relation to the person who holds office as Governor-General by virtue of
subsection
(1).
5.
Ministers
(1) Any person who
immediately before the appointed day holds office as Prime Minister or any other
Minister under the Independence
Constitution shall, as from that date, hold
office as Prime Minister or other Minister, as the case may be, as if he
had-
(a) in the case of the Prime Minister, been elected thereto under section 63 (the Prime Minister); or
(b) in the case of any other Minister, been appointed thereto under section 67 (the other Ministers).
(2) Any person holding
office as Prime Minister or other Minister by virtue of subsection (1) who
before the appointed day was assigned,
and immediately before that date held,
responsibility for any business of the Government shall be deemed to have been
assigned responsibility
for that business under section 75
(assignment of
responsibilities to
Ministers).
6.
Parliament
(1) Unless and until the
number of members of Parliament is fixed pursuant to section 82
(composition of
Parliament) by or under an Act of
Parliament, the number of members is
12.
(2) Any person who immediately
before the appointed day is a member of the former Parliament shall on that day
become a member of
Parliament and shall be deemed to have complied with the
requirements of section 112
(oath and affirmation
of members of Parliament) and shall hold
his seat in Parliament in accordance with the provisions of the
Constitution.
(3) The person who
immediately before the appointed day holds the office of Speaker of the former
Parliament shall on that day become
Speaker of Parliament and shall hold office
as such in accordance with the provisions of this
Constitution.
(4) The rules of
procedure of the former Parliament as in force immediately before the appointed
day shall, except as may be otherwise
provided under section 108
(rules of
procedure) have effect after that day as
if they had been made under that section but shall be construed with such
modifications, adaptions,
qualifications and exceptions as may be necessary to
bring them into conformity with this
Constitution.
(5) For the purpose
of the first determination after the appointed day of the period of four years
referred to in section 118(1)
(which relates to the
automatic dissolution of Parliament),
that period shall be deemed to have commenced after the date of the first
sitting of the former Parliament after the last general
election preceding the
appointed day.
(6) Any Bill which,
before the appointed day, was before the former Parliament-
(a) shall not lapse; and
(b) shall on and after the appointed day, be treated as a Bill for an Act before Parliament; and
(c) may be proceeded with accordingly-
(i) any stage of the Bill completed before the former Parliament being treated as having been completed before Parliament; and
(ii) any stage of the Bill commenced before the former Parliament being continued before Parliament.
(7) Any business commenced
before the former Parliament may, on and after the appointed day, be continued
before Parliament.
(8) In this
section, "the former Parliament" means the Parliament of Tuvalu established by
the Independence
Constitution.
7.
Public Officers
(1) Every person who
immediately before the appointed day holds or is acting in a public office
shall, as from that day, hold or act
in that office or the corresponding office
established by this Constitution as if he had been appointed to do so in
accordance with
the provisions of this Constitution and shall be deemed to have
taken any oaths required upon such appointment by any existing
law.
(2) Any person who holds
office by virtue of subsection (1) and who would, under the Independence
Constitution or any existing law,
have been required to vacate office at the
expiration of any period or on the attainment of any age shall vacate his office
under
this Constitution upon the expiration of that period or upon the
attainment of that age.
(3) The
provisions of this section shall be without prejudice to any power conferred by
or under this Constitution upon any person
or authority to make provision for
the abolition of offices and for the removal from office of persons holding or
acting in any office.
(4) In this
section, "public office" shall be construed as including the office of member
(including Chairman) of the Public Service
Commission established by the
Independence
Constitution.
8.
Legal Proceedings
(1) All proceedings
commenced or pending before the appointed day before the High Court or the Court
of Appeal established by the
Independence Constitution may continue on and after
that day before the High Court or the Court of Appeal, as the case may be,
established
by this
Constitution.
(2) Any decision
given before the appointed day by the High Court or the Court of Appeal
established by the Independence Constitution
shall for the purposes of the
enforcement or, in the case of a decision given by the High Court, for the
purpose of any appeal therefrom,
have effect on and after that day as if it were
a decision of the High Court or the Court of Appeal, as the case may be,
established
by this
Constitution.
9.
Financial
(1) In this section, "the
relevant financial year" means the financial year ending on 31 December
1986.
(2) Section 165
(Parliamentary
responsibility for finance) shall not
apply, and the following provisions shall apply in relation to the relevant
financial year:-
A.(1) The Minister responsible for Finance shall cause to be prepared and laid before Parliament before or not later than 60 days after the commencement of the relevant financial year estimates of the revenues and expenditure of the Government for that year.
(2) The heads of expenditure contained in the estimates (other than statutory expenditure) shall be included in a Bill to be known as an Appropriation Bill which shall be introduced into Parliament to provide for the issue from the Consolidated Fund of the sums necessary to supply those heads and the appropriation of those sums for the purposes specified therein.
(3) If in respect of the relevant financial year it is found that the sum appropriated by the Appropriation Act for any purpose is insufficient or that a need has arisen for expenditure for a purpose for which no sum has been appropriated by that law, a supplementary estimate showing the sum required shall be included in a Supplementary Bill for appropriation.
(4) Where in respect of the relevant financial year the Minister responsible for Finance is satisfied that an urgent and unforeseen need has arisen to authorise for any purpose advances from the Consolidated Fund for expenditure in excess of the sum appropriated for that purpose by an Appropriation Act, or for a purpose for which no sum has been so appropriated, he may, subject to the provisions of any law for the time being in force in that regard, authorise such advances by warrant and shall include such amount in a Supplementary Appropriation Bill for appropriation at the meeting of Parliament next following the date on which the warrant was issued.
(5) If at the close of account for the relevant financial year it is found that any moneys have been expended on any head in excess of the sums appropriated for that head by an Appropriation Act or for a purpose for which no money has been appropriated, the excess or the sum expended but not appropriated, as the case may be, shall be included in a statement of heads in excess which shall be presented to Parliament.
B. If the Appropriation Act in respect of the relevant financial year has not come into operation at the beginning of that financial year, Parliament by resolution may empower the Minister responsible for Finance to authorise the issue of moneys from the Consolidated Fund for the purpose of meeting expenditure necessary to carry on the state services at a level not exceeding the level of the public services in the previous financial year, until the expiration of 4 months from the beginning of the relevant financial year or the coming into operation of the Appropriation Act, whichever is the earlier.
C.(1) No money shall be issued from the Consolidated Fund except upon the authority of a warrant under the hand of the Minister responsible for Finance.
(2) No warrant shall be issued by the Minister responsible for Finance for the purpose of meeting any expenditure unless-
(a) the expenditure has been authorised for the relevant financial year by an Appropriation Act; or
(b) the expenditure has been authorised in accordance with the provisions of paragraph A(4), B or C; or
(c) it is statutory expenditure in which event, it shall not be voted on by Parliament but, without further authority of Parliament, shall be paid out of the Consolidated Fund and a warrant may issue for that purpose."
(3) Any-
(a) estimates laid before Parliament; or
(b) Appropriation Ordinance enacted; or
(c) resolution passed by Parliament; or
(d) other thing done,
before the appointed day, pursuant to the Independence Constitution and in respect of the relevant financial year, shall have effect after that day as if laid or, as the case may be, enacted, passed or done pursuant to this section in respect of the relevant financial year; and the reference in this section to an "Appropriation Act" shall be deemed to include a reference to any Ordinance so enacted.
SUBSIDIARY
LEGISLATION
ORDER UNDER paragraph 2(3) of Schedule 5
RENAMING OF ORDINANCES ORDER
LN 14/86
Citation
1. This Order may be cited as
the Renaming of Ordinances
Order.
2. For the avoidance of
doubt and as it is expedient to bring them into conformity with section 86(3) of
and paragraph 2(1) of Schedule
5 to the Constitution-
(a) all Ordinances having effect as part of the law of Tuvalu immediately before 1 October 1986 (being the appointed day for the coming into effect of the Constitution) are named, and may be cited as, "Acts" and their short titles are amended by substituting the word "Act" for the word "Ordinance" in each place where it occurs;
(b) all references in existing laws to Ordinances to which paragraph (a) applies are amended by substituting the word "Act" for the word "Ordinance" in each place where it occurs;
(c) all references in documents to Ordinances to which paragraph (a) applies are deemed to be amended by substituting the word "Act" for the word "Ordinance" in each place where it occurs.
ASSIGNMENT
UNDER Section 75(1)(a)
MINISTERIAL RESPONSIBILITIES
LN 17/89
PRIME MINISTER
Administration
Audit
Births,
Deaths and Marriages
Registration
Cabinet and
Parliament
Censorship
Citizenship
Civil
Service Management including Manpower Planning and
Localisation
Constitutional and
Political Affairs
Co-ordination of.
Government Business
Defence and
Security
Disaster
Preparedness
Housing
allocation
Judiciary
Legal
Affairs
National
Elections
People's Lawyer's
Office
Public
Holidays
Tuvalu Coat of
Arms
Gaming and
Lotteries
Broadcasting and
Information
Government
Printery
Religious
Affairs
DEPARTMENT OF FOREIGN AFFAIRS AND ECONOMIC PLANNING
Foreign
Affairs
Overseas
Representations
Resettlement
SPC
Forum
Secretariat
SPF
Economic
Planning and
Development
UNDP
EEC
Energy
Planning
Trade
Bilateral
and Multilateral Organisations
MINISTER OF FINANCE AND COMMERCE
BuDAB
Census
and
Statistics
Coinage
Customs
Administration
Exchange
Control
Government Finance and
Monetary Policy
Government
Stores
Investment
Marketing
National
Bank of Tuvalu
National Provident
Fund
Philatelic
Bureau
Taxation
Tuvalu
Trust Fund
Wreck and
Salvage
Commercial and Industrial
Development
Companies and Business
Registration
Co-operatives
Copra
Government
Hotel
Registration of Patents and
Trade
Marks
Tourism
Financial
Planning and
Budgeting
Treasury
Pricing
Policy and Control (Pricing Control
Board)
Privatisation
MINISTER OF HEALTH, EDUCATION AND COMMUNITY AFFAIRS
In-service training,
Apprenticeships, and pre-service
training
Womens'
Affairs
Cultural
Affairs
Education
Language
Board
Libraries and
Archives
Medical Services and Public
Health
Museums
Pharmacy
Red
Cross
Registration of
Charities
School
Broadcasting
Social
Welfare
Sports and Recreational
Activities
Tuvalu Maritime
School
University of the South
Pacific
Youth Affairs
MINISTER OF WORKS AND COMMUNICATIONS
Labour and Industrial
Relations
Building Constructions and
Maintenance
Electricity Generation and
Distribution
Meteorological
Services
Postal
Services
Public
Works
Reef
Passage
Telecommunications and
Telephone Services
Town and Urban
Planning
Transport Services: Civil
Aviation
Port and Harbours
Shipping
Travel Agency
Vehicle
Pool and Mechanical Services
Water
Supply and Sewage
Petroleum
supply
MINISTER OF NATURAL RESOURCES AND HOME AFFAIRS
DEPARTMENT
OF NATURAL RESOURCES
Agriculture
and Livestock Development
Conservation
of Natural Resources and
Environment
Fisheries
Forestry
Mining
National
Fishing Corporation of Tuvalu
Lands
and Surveys
DEPARTMENT OF HOME AFFAIRS
Local
Government
Rural
Development
Police, Prison, Fire
Service and
Immigration
Explosives
Search
and
Rescue
Traffic
Arms
and Ammunition
Liquor
Laws
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