The Constitution of Tuvalu



2008 Revised Edition

CAP. 1.02





THE CONSTITUTION OF TUVALU




















The Constitution of Tuvalu CAP. 1.02 Arrangement of Sections





2008 Revised Edition


Page 3



THE CONSTITUTION OF TUVALU

Arrangement of Sections
Section

PREAMBLE 9

PRINCIPLES OF THE CONSTITUTION 10

PART I 11

THE STATE AND THE CONSTITUTION 11
1 The State .............................................................................................................. 11
2 The area of Tuvalu ............................................................................................... 11
3 The Constitution as supreme law......................................................................... 12
4 Interpretation of the Constitution......................................................................... 12
5 Jurisdiction of the High Court in constitutional matters ...................................... 12
6 Interpretation of Division 3.................................................................................. 12
7 Alteration of the Constitution generally .............................................................. 13
8 Alteration of the Constitution to give effect to U.K. constitutional change ........ 13

PART II 14

BILL OF RIGHTS 14
9 Interpretation of Part II ........................................................................................ 14
10 Freedom under law .............................................................................................. 14
11 The fundamental human rights and freedoms...................................................... 15
12 Application of Part II ........................................................................................... 16
13 The Principles of the Preamble ............................................................................ 16
14 Parliamentary declarations of purpose................................................................. 16
15 “Reasonably justifiable in a democratic society” ................................................ 17
16 Life....................................................................................................................... 18
17 Personal liberty .................................................................................................... 18
18 Slavery and forced labour .................................................................................... 20

Arrangement of Sections CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 4




19 Inhuman treatment................................................................................................21
20 Property rights ......................................................................................................21
21 Privacy of home and property ..............................................................................23
22 Protection of law ..................................................................................................24
23 Freedom of belief .................................................................................................28
24 Freedom of expression .........................................................................................29
25 Freedom of assembly and association ..................................................................30
26 Freedom of movement .........................................................................................31
27 Freedom from discrimination...............................................................................33
28 Other rights and freedoms ....................................................................................35
29 Protection of Tuvaluan values, etc. ......................................................................35
30 Provisions relating to certain officials..................................................................36
31 Disciplined forces of Tuvalu ................................................................................37
32 Foreign disciplined forces ....................................................................................37
33 Hostile disciplined forces .....................................................................................37
34 Interpretation of Division 4 ..................................................................................37
35 Declaration of public emergency .........................................................................38
36 Restrictions on certain rights and freedoms during public emergencies ..............38
37 Detention during public emergencies...................................................................38
38 Application for enforcement of the Bill of Rights................................................39
39 Questions as to the Bill of Rights arising in subordinate courts...........................40
40 Jurisdiction of the High Court as to the Bill of Rights .........................................40
41 Appeals as to the Bill of Rights............................................................................40
42 Additional powers of the High Court as to the Bill of Rights ..............................40

PART III 41

CITIZENSHIP 41
43 Interpretation of Part III .......................................................................................41
44 Initial citizenship under the Constitution .............................................................41
45 Citizenship by birth ..............................................................................................41
46 Citizenship by marriage under the Constitution...................................................42
47 Laws as to citizenship ..........................................................................................42

PART IV 43

THE SOVEREIGN AND THE GOVERNOR-GENERAL 43
48 The Sovereign of Tuvalu......................................................................................43
49 Succession to the Crown ......................................................................................43
50 The office of Head of State ..................................................................................43
51 Functions, etc., of the Head of State generally.....................................................43
52 Performance of functions by the Head of State....................................................44
53 Failure by the Head of State to act .......................................................................44
54 Establishment of office of Governor-General ......................................................45
55 Appointment, etc., of the Governor-General........................................................45
56 Acting Governor-General.....................................................................................46

The Constitution of Tuvalu CAP. 1.02 Arrangement of Sections





2008 Revised Edition


Page 5



57 Oaths and affirmation by the Governor-General, etc........................................... 46
58 Performance of functions by the Governor-General............................................ 47
59 Provision to the Governor-General of information as to the conduct of

government .......................................................................................................... 47
60 Performance of certain ceremonial, etc., functions.............................................. 47

PART V 48

THE EXECUTIVE 48
61 Vesting of the executive authority ....................................................................... 48
62 Offices of Ministers ............................................................................................. 48
63 The Prime Minister .............................................................................................. 49
64 Removal from office of an incapacitated Prime Minister.................................... 49
65 Suspension of Prime Minister .............................................................................. 50
66 Effect of removal or suspension of Prime Minister ............................................. 50
67 The other Ministers .............................................................................................. 50
68 Acting Prime Minister ......................................................................................... 50
69 Acting Ministers .................................................................................................. 51
70 Conditions of acting appointments to Ministerial offices .................................... 51
71 Caretaker governments ........................................................................................ 52
72 Oaths and affirmations by Ministers.................................................................... 52
73 Establishment of the Cabinet ............................................................................... 53
74 Functions of the Cabinet ...................................................................................... 53
75 Assignment of responsibilities to Ministers......................................................... 53
76 Proceedings in Cabinet ........................................................................................ 53
77 Validity of executive acts..................................................................................... 54
78 The Secretary to Government .............................................................................. 54
79 The Attorney-General .......................................................................................... 55
80 Commutation, etc., of sentences .......................................................................... 56

PART VI 57

PARLIAMENT AND LAW-MAKING 57
81 Establishment of Parliament ................................................................................ 57
82 Composition of Parliament .................................................................................. 57
83 Principles of electoral apportionment .................................................................. 58
84 Vesting of the law-making power........................................................................ 58
85 Delegated legislation............................................................................................ 59
86 Manner of exercise of the law-making power ..................................................... 59
87 Nature of elections ............................................................................................... 59
88 Holding of elections............................................................................................. 59
89 Electoral laws....................................................................................................... 60
90 Right to vote......................................................................................................... 60
91 Qualifications for registration .............................................................................. 60
92 Disqualification from registration........................................................................ 61
93 Candidature.......................................................................................................... 61

Arrangement of Sections CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 6




94 Qualifications for election ....................................................................................62
95 Disqualification from election..............................................................................62
96 Tenure of office....................................................................................................63
97 Disclosure of interest............................................................................................63
98 Vacation of seat on sentence ................................................................................64
99 Recall of incapacitated member ...........................................................................64
100 Questions as to membership of Parliament ..........................................................65
101 Sitting, etc., while unqualified .............................................................................65
102 Calculation of sentences.......................................................................................66
103 Establishment of the office of Speaker.................................................................66
104 Election of the Speaker ........................................................................................66
105 Tenure of office of the Speaker............................................................................67
106 Functions of the Speaker ......................................................................................67
107 Acting Speaker .....................................................................................................68
108 Rules of Procedure ...............................................................................................69
109 Quorum of Parliament ..........................................................................................69
110 Voting in Parliament ............................................................................................69
111 Procedure on Bills, etc .........................................................................................70
112 Oath and affirmation of members of Parliament..................................................70
113 Validity of proceedings in Parliament..................................................................71
114 Privileges of Parliament .......................................................................................71
115 Clerk of Parliament and other officers .................................................................72
116 Meetings of Parliament ........................................................................................72
117 Prorogation of Parliament ....................................................................................72
118 Dissolution of Parliament.....................................................................................72

PART VII 73

THE COURTS 73
119 The judicial system...............................................................................................73
120 Establishment of the High Court ..........................................................................73
121 Composition of the High Court ............................................................................74
122 The Chief Justice of Tuvalu .................................................................................74
123 Other Judges.........................................................................................................74
124 Qualifications of Judges .......................................................................................74
125 Remuneration, etc., of Judges ..............................................................................74
126 Tenure of office of Judges....................................................................................75
127 Removal of Judges from office ............................................................................75
128 Suspension of Judges ...........................................................................................76
129 Completion of pending matters ............................................................................76
130 Jurisdiction of the High Court generally ..............................................................76
131 Constitutional interpretation.................................................................................77
132 Appellate jurisdiction of the High Court ..............................................................77
133 Other jurisdiction, etc., of the High Court............................................................77
134 Establishment of the Court of Appeal ..................................................................77
135 Jurisdiction of the Court of Appeal ......................................................................78

The Constitution of Tuvalu CAP. 1.02 Arrangement of Sections





2008 Revised Edition


Page 7



136 Jurisdiction of the Sovereign in Council.............................................................. 78

PART VIII 79

PUBLIC EMPLOYMENT 79
137 Interpretation of Part VIII .................................................................................... 79
138 Application of Part VIII ....................................................................................... 79
139 The State Services................................................................................................ 80
140 Creation etc., of offices, etc., in State Services.................................................... 80
141 Appointments subject to approval, etc................................................................. 80
142 Localization ......................................................................................................... 81
143 Establishment of the Commission ....................................................................... 81
144 Composition of the Commission ......................................................................... 81
145 Appointment of members of the Commission ..................................................... 81
146 Remuneration, etc., of members of the Commission........................................... 82
147 Tenure of office of members of the Commission ................................................ 82
148 Exclusion of members of the Commission from certain employment................. 82
149 Functions of the Commission .............................................................................. 83
150 Independence of the Commission........................................................................ 83
151 Appeals within State Services.............................................................................. 84
152 Procedures, etc., of the Commission.................................................................... 84
153 Delegation by the Commission............................................................................ 84
154 Application of Division 4..................................................................................... 85
155 The Public Service ............................................................................................... 85
156 Magistrates........................................................................................................... 85
157 The Police Force .................................................................................................. 85
158 Secretaries to Ministries....................................................................................... 86
159 Special cases of appointments ............................................................................. 86
160 Interpretation of Division 5.................................................................................. 87
161 Application of Division 5..................................................................................... 87
162 Removal of prescribed officials from office ........................................................ 88
163 Suspension of prescribed officials ....................................................................... 89
164 Contract employment........................................................................................... 89

PART IX 89

FINANCE 89
165 Parliamentary responsibility for finance.............................................................. 89
166 Executive initiative .............................................................................................. 90
167 The Consolidated Fund........................................................................................ 91
168 Accounting, etc., for public money...................................................................... 91
169 Remuneration of certain officials......................................................................... 91
170 Establishment of the office of Auditor-General................................................... 92
171 Independence of the office of Auditor-General ................................................... 92
172 Functions of the Auditor-General ........................................................................ 92

Arrangement of Sections CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 8




PART X 93

TRANSITIONAL 93
173 Transitional provisions.........................................................................................93


SCHEDULE 1 94

RULES FOR THE INTERPRETATION OF THE CONSTITUTION 94

SCHEDULE 2 107

ELECTION AND APPOINTMENT OF THE PRIME MINISTER 107

SCHEDULE 3 111

PROCEDURE, ETC., OF THE PUBLIC SERVICE COMMISSION AND
CERTAIN TRIBUNALS 111

SCHEDULE 4 113

OATHS AND AFFIRMATIONS 113

SCHEDULE 5 114

TRANSITIONAL PROVISIONS 114

Supporting Documents

ENDNOTES 120

The Constitution of Tuvalu CAP. 1.02 Section 1





2008 Revised Edition


Page 9



THE CONSTITUTION OF TUVALU1



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;

Section 1 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 10




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

The Constitution of Tuvalu CAP. 1.02 Section 1





2008 Revised Edition


Page 11



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,

Section 3 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 12




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.

The Constitution of Tuvalu CAP. 1.02 Section 7





2008 Revised Edition


Page 13



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 U.K.

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).

Section 9 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 14




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.

The Constitution of Tuvalu CAP. 1.02 Section 11





2008 Revised Edition


Page 15



(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.

Section 12 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 16




(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.

The Constitution of Tuvalu CAP. 1.02 Section 15





2008 Revised Edition


Page 17



(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

Section 16 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 18




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

The Constitution of Tuvalu CAP. 1.02 Section 17





2008 Revised Edition


Page 19



(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.

Section 18 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 20




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

The Constitution of Tuvalu CAP. 1.02 Section 19





2008 Revised Edition


Page 21



(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.

Section 20 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 22




(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

The Constitution of Tuvalu CAP. 1.02 Section 21





2008 Revised Edition


Page 23



(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

Section 22 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 24




(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

The Constitution of Tuvalu CAP. 1.02 Section 22





2008 Revised Edition


Page 25



(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.

Section 22 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 26




(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 in 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 —

The Constitution of Tuvalu CAP. 1.02 Section 22





2008 Revised Edition


Page 27



(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.

Section 23 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 28




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 —

The Constitution of Tuvalu CAP. 1.02 Section 24





2008 Revised Edition


Page 29



(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 practise 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 —

Section 25 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 30




(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 —

The Constitution of Tuvalu CAP. 1.02 Section 26





2008 Revised Edition


Page 31



(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

Section 26 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 32




(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

The Constitution of Tuvalu CAP. 1.02 Section 27





2008 Revised Edition


Page 33



(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 —

Section 27 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 34




(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

The Constitution of Tuvalu CAP. 1.02 Section 28





2008 Revised Edition


Page 35



(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 —

Section 30 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 36




(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.

The Constitution of Tuvalu CAP. 1.02 Section 31





2008 Revised Edition


Page 37



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).

Section 35 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 38




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

The Constitution of Tuvalu CAP. 1.02 Section 38





2008 Revised Edition


Page 39



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

Section 39 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 40




(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.

The Constitution of Tuvalu CAP. 1.02 Section 43





2008 Revised Edition


Page 41



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 —

Section 46 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 42




(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.

The Constitution of Tuvalu CAP. 1.02 Section 48





2008 Revised Edition


Page 43



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.2

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.

Section 52 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 44




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 Constitution of Tuvalu CAP. 1.02 Section 54





2008 Revised Edition


Page 45



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.

Section 56 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 46




(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.

The Constitution of Tuvalu CAP. 1.02 Section 58





2008 Revised Edition


Page 47



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.

Section 61 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 48




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 half of the total membership of Parliament.3

(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.

The Constitution of Tuvalu CAP. 1.02 Section 63





2008 Revised Edition


Page 49



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 practise 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.

Section 65 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 50




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 —

The Constitution of Tuvalu CAP. 1.02 Section 69





2008 Revised Edition


Page 51



(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.

Section 71 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 52




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).

The Constitution of Tuvalu CAP. 1.02 Section 73





2008 Revised Edition


Page 53



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 Ministers4
(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 —

Section 77 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 54




(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.

The Constitution of Tuvalu CAP. 1.02 Section 79





2008 Revised Edition


Page 55



(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

Section 80 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 56




(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

The Constitution of Tuvalu CAP. 1.02 Section 81





2008 Revised Edition


Page 57



(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.

Section 83 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 58




(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

The Constitution of Tuvalu CAP. 1.02 Section 85





2008 Revised Edition


Page 59



(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 to be held after one month but not later than

three months after every dissolution of Parliament.5

Section 89 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 60




(2) There shall be a bye-election as soon as practicable after —
(a) the occurrence of any casual vacancy in the membership of Parliament;

or
(b) an Act of Parliament has been enacted to increase the number of

members of Parliament.6

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

The Constitution of Tuvalu CAP. 1.02 Section 92





2008 Revised Edition


Page 61



(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.

Section 94 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 62




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

The Constitution of Tuvalu CAP. 1.02 Section 96





2008 Revised Edition


Page 63



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.

Section 98 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 64




(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 —

The Constitution of Tuvalu CAP. 1.02 Section 100





2008 Revised Edition


Page 65



(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.

Section 102 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 66




(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.

The Constitution of Tuvalu CAP. 1.02 Section 105





2008 Revised Edition


Page 67



(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.

Section 107 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 68




(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.

The Constitution of Tuvalu CAP. 1.02 Section 108





2008 Revised Edition


Page 69



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.

Section 111 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 70




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 —

The Constitution of Tuvalu CAP. 1.02 Section 113





2008 Revised Edition


Page 71



(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).

Section 115 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 72




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

The Constitution of Tuvalu CAP. 1.02 Section 119





2008 Revised Edition


Page 73



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.

Section 121 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 74




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 practise 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.

The Constitution of Tuvalu CAP. 1.02 Section 126





2008 Revised Edition


Page 75



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.

Section 128 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 76




(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.

The Constitution of Tuvalu CAP. 1.02 Section 131





2008 Revised Edition


Page 77



(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.

Section 135 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 78




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

The Constitution of Tuvalu CAP. 1.02 Section 137





2008 Revised Edition


Page 79



(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 VIII
(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.

Section 139 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 80




(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.

The Constitution of Tuvalu CAP. 1.02 Section 142





2008 Revised Edition


Page 81



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

Section 146 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 82




(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 employment7
(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 on —
(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

The Constitution of Tuvalu CAP. 1.02 Section 149





2008 Revised Edition


Page 83



certain offices and positions the holders of which are disqualified from
appointment to the Public Service 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.

Section 151 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 84




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.

The Constitution of Tuvalu CAP. 1.02 Section 154





2008 Revised Edition


Page 85



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 Force8
(1) An office of Commissioner of Police is established as an office in the Tuvalu

Police.

(2) The Commissioner of Police shall be appointed in accordance with section
159(5)(a) (which relates to the appointment of the Commissioner of Police).

(3) Excluding the Commissioner 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 Commissioner of Police, subject to appeal to the Public
Service Commission in the case of removal or disciplinary action.

Section 158 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 86




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 —

The Constitution of Tuvalu CAP. 1.02 Section 160





2008 Revised Edition


Page 87



(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 Commissioner 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).9

(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

Section 162 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 88




(d) Commissioner of Police;10 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.11

(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.

The Constitution of Tuvalu CAP. 1.02 Section 163





2008 Revised Edition


Page 89



(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

Section 166 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 90




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).

The Constitution of Tuvalu CAP. 1.02 Section 167





2008 Revised Edition


Page 91



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) Commissioner of Police;12 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

Section 170 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 92




(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.

The Constitution of Tuvalu CAP. 1.02 Section 173





2008 Revised Edition


Page 93



(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.



SCHEDULE 1 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 94




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 Constitution of Tuvalu CAP. 1.02 SCHEDULE 1





2008 Revised Edition


Page 95



“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

SCHEDULE 1 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 96




(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 120
(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);

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 1





2008 Revised Edition


Page 97



“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;

SCHEDULE 1 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 98




“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;

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 1





2008 Revised Edition


Page 99



“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 whole.

(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

SCHEDULE 1 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 100




(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.

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 1





2008 Revised Edition


Page 101



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 person 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

SCHEDULE 1 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 102




(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 Commissioner of Police to retire.13

(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 —

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 1





2008 Revised Edition


Page 103



(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.

SCHEDULE 1 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 104




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 —

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 1





2008 Revised Edition


Page 105



(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.

SCHEDULE 1 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 106




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.

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 2





2008 Revised Edition


Page 107



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.

SCHEDULE 2 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 108




(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.

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 2





2008 Revised Edition


Page 109



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,

SCHEDULE 2 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 110




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 nominated, 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).

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 3





2008 Revised Edition


Page 111



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.

SCHEDULE 3 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 112




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.

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 4





2008 Revised Edition


Page 113



SCHEDULE 4

OATHS AND AFFIRMATIONS

(Sections 57, 72 and 112)

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 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 114




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.14

(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

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 5





2008 Revised Edition


Page 115



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).

SCHEDULE 5 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 116




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.

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 5





2008 Revised Edition


Page 117



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

SCHEDULE 5 CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 118




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.

The Constitution of Tuvalu CAP. 1.02 SCHEDULE 5





2008 Revised Edition


Page 119



(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.

ENDNOTES CAP. 1.02 The Constitution of Tuvalu





2008 Revised Edition Page 120




ENDNOTES


1 The Constitution is the Schedule to Tuvalu Ordinance 1 of 1986, which provides that the

Constitution comes into effect on the appointed day which, by LN 12/1986, is 1 October 1986
Amended by Act 2 of 1992, commences 18 August 1992 (LN 9/1992)
Amended by Act 5 of 2000, commences 23 August 2000 (LN 5/2000)
Amended by Act 4 of 2002, commences 1 July 2002 (LN 9/2002)
Amended by Act 5 of 2002, commences 1 July 2002 (LN10/2002)
Amended by Act 4 of 2007, commences 3 August 2007 (LN 3/2007)
2 By Act 1 of 1987 (Cap 4.28) 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”

3 Amended by Act 4 of 2007
4 see the assignments at Cap 1.02.2
5 Amended by Act 5 of 2002
6 Amended by Act 5 of 2000
7 Amended by Act 4 of 2002
8 Amended by Act 2 of 1992
9 Amended by Act 2 of 1992
10 Amended by Act 2 of 1992
11 applied to the People’s Lawyer by section 6 of the People’s Lawyer Act, (Cap 7.52)
12 Amended by Act 2 of 1992
13 Amended by Act 2 of 1992
14 By LN 14/1986 the following Order under paragraph 2(3) of Schedule 5 was made —

“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.”