Tuvalu 1986 Constitution (reviewed 2010)

PART VII. THE COURTS

DIVISION 1. GENERAL

119. The judicial system

The judicial system of Tuvalu consists of-

1. the Sovereign in Council (as provided for in Division 4); and
2. the Court of Appeal for Tuvalu (as provided for in Division 3); and
3. the High Court of Tuvalu (as provided for in Division 2); and
4. such other courts and tribunals as are provided for by or under Acts of Parliament.

DIVISION 2. THE HIGH COURT

Subdivision A. Establishment, etc

120. Establishment of the High Court

1. A High Court of Tuvalu is established.
2. The High Court is a superior court of record.

121. Composition of the High Court

The High Court is constituted by the Chief Justice of Tuvalu and any other Judges appointed under section 123 (other Judges).

122. The Chief Justice of Tuvalu

1. An office of Chief Justice of Tuvalu is established.
2. The Chief Justice shall be appointed by the Head of State, acting in accordance with the advice of the Cabinet, for such period as is specified in the instrument of his appointment.

123. Other Judges

If the Cabinet is satisfied that the appointment of an additional Judge is necessary for the proper performance of the functions of the High Court, the Head of State, acting in accordance with the advice of the Cabinet given after consultation with the Chief Justice, may appoint a person to be a Judge of the High Court-

1. for such period; or
2. 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-

1. 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
2. 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.

126. Tenure of office of Judges

1. A Judge of the High Court vacates his office-
   1. on death; or
   2. if he is removed from office under section 127 (removal of Judges from office); or
   3. subject to subsection (2), if he resigns by notice in writing to the Head of State; or
   4. at the end of the period of his appointment; or
   5. 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-
   1. 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
   2. in accordance with this section.
2. A Judge of the High Court may be removed from office by Parliament, by resolution, if-
   1. the question of his removal from office has been referred to a tribunal appointed under subsection (3); and
   2. 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-
   1. the Prime Minister; and
   2. in the case of a Judge other than the Chief Justice, the Chief Justice,

   shall appoint an independent tribunal consisting of a chairman and at least one other member, each of whom is qualified for appointment as a Judge of the High Court, to investigate the question.

4. The tribunal shall investigate the question and report on it to Parliament, with its advice whether or not the Judge should be removed from office.
5. The provisions of Schedule 3 (procedure, etc., of the Public Service Commission and certain Tribunals) apply to and in respect of the tribunal.

128. Suspension of Judges

1. If the question of removing a Judge of the High Court from office has been referred to a tribunal under section 127 (removal of Judges from office) the Head of State, acting in accordance with the advice of the Cabinet may suspend the Judge from office.
2. A suspension under subsection (1)-
   1. may be lifted at any time by the Head of State, acting in accordance with the advice of the Cabinet; and
   2. 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-
   1. 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
   2. in relation to questions as to membership of Parliament – as provided by section 100 (questions as to membership of Parliament); and
   3. in relation to other questions as to the interpretation or application of this Constitution – as provided by section 131 (constitutional interpretation); and
   4. in relation to appeals generally – as provided by section 132 (appellate jurisdiction of the High Court); and
   5. in other matters – as provided for by sections 14(3) (which relates to the effect of Parliamentary declarations of purpose) and 133 (other jurisdiction, etc., of the High Court), and otherwise in this Constitution.
2. Subject to any Act of Parliament providing for the jurisdiction of two or more members of the High Court sitting together, the jurisdiction of the High Court may be exercised by the Chief Justice or a single Judge.

131. Constitutional interpretation

1. Subject to subsection (2), the High Court has original jurisdiction to determine any question as to the interpretation or application of this Constitution.
2. Where-
   1. any question as to the interpretation or application of this Constitution arises in any proceedings in a subordinate court; and
   2. that court is of the opinion that the question involves a substantial question of law,

   the court may, and shall if a party to the proceedings so requests, refer the question to the High Court for determination.

132. Appellate jurisdiction of the High Court

The High Court has such jurisdiction to determine appeals from decisions of subordinate courts as is provided for by this Constitution or by or under Acts of Parliament.

133. Other jurisdiction, etc., of the High Court

The High Court has such other jurisdiction, power and authority as are conferred by or under Acts of Parliament.

DIVISION 3. THE COURT OF APPEAL

134. Establishment of the Court of Appeal

1. A Court of Appeal for Tuvalu is established.
2. The Court of Appeal shall be constituted as provided for by an Act of Parliament.
3. Parliament shall not proceed upon a Bill for an Act referred to in subsection (2) after its first reading in Parliament unless the Speaker has obtained, and has presented to Parliament, a report from the Chief Justice on the proposal.

135. Jurisdiction of the Court of Appeal

1. Subject to-
   1. section 41(2) (which relates to frivolous or vexatious appeals against determinations as to contraventions of the Bill of Rights); and
   2. section 100(2) (appeals on questions as to membership of Parliament); and
   3. 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-
   1. with the leave of the Court of Appeal-
      1. in the case of a final decision on a question as to the interpretation or application of this Constitution; or
      2. in the case of a final decision in proceedings under Division 5 (Enforcement of the Bill of Rights) of Part ii;
      3. in the case of-
         1. a final decision; or
         2. 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

   2. 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-
   1. is made during or for the purposes of some legal proceedings; and
   2. is incidental to those proceedings; and
   3. does not finally dispose of those proceedings.