Constitution

Tuvalu 1986 Constitution (reviewed 2010)

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Table of Contents

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-

  1. appointment and confirmation of appointment; and
  2. promotion and demotion; and
  3. transfer from office to office or from place to place (except movement within a common cadre); and
  4. disciplinary action; and
  5. suspension; and
  6. 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-
    1. consultants, advisers or agents (without executive authority or power of direction of members of a State Service) who are-
      1. employed on an honorary basis; or
      2. remunerated by fees or commission only, with or without travelling or subsistence allowances, expense allowances or similar allowances; or
    2. except as provided by or under an Act of Parliament-
      1. the holders of offices listed in section 161 (application of Division 5); or
      2. the members of the staff of statutory authorities; or
      3. members of, or members of the staff of, local governments or authorities.
  2. Nothing in this Part prevents the creation of-
    1. statutory offices; or
    2. statutory corporations or authorities; or
    3. 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-
    1. a Public Service; and
    2. the Tuvalu Police.
  2. Subject to this Part, Acts of Parliament may make provision for and in relation to-
    1. a Prison Service; and
    2. other State Services of Tuvalu.

140. Creation etc., of offices, etc., in State Services

Subject to any Act of Parliament, the Cabinet may-

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  1. create or abolish offices or positions in State Services; and
  2. determine the qualifications for offices or positions in State Services; and
  3. 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-
    1. approval by Parliament, or by any other person or authority; or
    2. consultation with Parliament or with the members of Parliament, or with any other person or authority.

142. Localization

  1. In this section “localization” means preference in public employment (either generally or in respect of an office or position, or a class of offices or positions) for-
    1. citizens of Tuvalu; or
    2. persons whose usual places of residence (apart from the requirements of employment) are in Tuvalu; or
    3. 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-
    1. by or under an Act of Parliament; or
    2. 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 I (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-
    1. he is a member of Parliament; or
    2. he is a candidate for election as a member of Parliament; or
    3. he is the holder of-
      1. any other office or position established by this Constitution; or
      2. an office or position in a State Service; or
      3. 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-
    1. if he is removed from office under Division 5 (Removal etc., of certain officials); or
    2. subject to subsection (2), if he resigns by notice in writing to the Head of State; or
    3. if he ceases to be qualified for appointment by virtue of section 145(2) (which relates to disqualification from appointment); or
    4. at the end of the period of four years after the date of his appointment.
  2. A resignation under subsection (1)(b) takes effect on the date on which it is received by the Head of State, or on such later date as is fixed by agreement between the member and the Minister responsible for Public Service matters.

148. Exclusion of members of the Commission from certain employment

  1. This section does not apply to a person who has been acting temporarily in the office of a member of the Public Service Commission only for a period of less than six consecutive months.
  2. Nothing in this section prevents other or additional disqualifications being imposed by or under an Act of Parliament on-
    1. a member or former member of the Public Service Commission, or
    2. a person referred to in subsection (1),because of his membership or former membership of the Commission.
  3. A member of the Public Service Commission is not eligible for appointment to any office or position referred to in section 145(2)(c) (which relates to certain offices and positions the holders of which are disqualified from appointment to the Public Service Commission).

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-
    1. 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
    2. all personnel matters connected with the Public Service; and
    3. 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-
    1. may at any time; and
    2. 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)-
    1. shall be published in any manner prescribed for the publication of subordinate legislation; and
    2. shall immediately be forwarded by the Minister responsible for Public Service matters to the Speaker, for presentation to Parliament.
  3. Except in relation to personnel matters, the Public Service Commission is responsible to the Cabinet for the performance of its functions.

151. Appeals within State Services

  1. The independence conferred on the Public Service Commission by section 150 (independence of the Commission) is not affected by any provision of an Act of Parliament providing for an appeal, to an independent tribunal or authority established by an Act of Parliament, from-
    1. a decision of the Commission; or
    2. any recommendation or advice to the Commission; or
    3. 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)-
    1. may apply generally, or in respect of any part of Tuvalu or of any place specified in the instrument of delegation; and
    2. may be made subject to such conditions, limitations and restrictions as are so specified.
  3. A delegation under this section is revocable, in writing, at will, and no delegation prevents the performance of a function by the Commission.
  4. If a delegation under this section relates to personnel matters, in performing the delegated function the delegate is subject to the same freedom from direction or control as the Commission, and the provisions of sections 150 (independence of the Commission) and 151, (appeals with State Services) with the necessary modifications, apply accordingly.

DIVISION 4. PERSONNEL FUNCTIONS

154. Application of Division 4

  1. This Division applies to and in relation to any Act of Parliament made for the purposes of section 139 (the State Services) establishing a State Service, and to any regulations or other subsidiary legislation made under such an Act.
  2. The provisions of this Division shall be read subject to this Constitution and in particular to-
    1. section 142 (Localization); and
    2. Division 5 (Removal, etc., of Certain Officials).

155. The Public Service

Authority in relation to personnel matters in respect of members of the Public Service shall be vested in the Public Service Commission.

156. Magistrates

  1. The provisions of this section apply in relation to a magistrate of a subordinate court irrespective of whether he is a member of the Public Service.
  2. Authority in relation to personnel matters in respect of magistrates of subordinate courts in their capacity as magistrates shall be vested in the Head of State, acting in accordance with the advice of the Public Service Commission, subject to the approval, either general or specific, of the Chief Justice or a person authorized by him for the purpose.

157. The Police Force

  1. An office of 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.

158. Secretaries to Ministries

  1. In this section-
    1. “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
    2. a reference to the appointment of a Secretary includes a reference to-
      1. his appointment from outside the Public Service; and
      2. his promotion or transfer from some other office outside a common cadre.
  2. Secretaries-
    1. shall be appointed only with the concurrence of the Cabinet; and
    2. 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-
    1. 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
    2. may be suspended or removed from office in accordance with Division 5 (Removal, etc., of Certain Officials).
  3. The Secretary to Government-
    1. 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
    2. may be suspended or removed from office in accordance with Division 5 (Removal, etc., of Certain Officials).
  4. The Attorney-General-
    1. 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
    2. may be suspended or removed from office in accordance with Division 5 (Removal, etc., of Certain Officials).
  5. The Commissioner of Police-
    1. 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
    2. may be suspended or removed from office in accordance with Division 5 (Removal, etc., of Certain Officials).
  6. The functions of the Head of State under this Division in relation to the personal staff of the Governor-General who are members of a State Service shall be exercised by the Governor-General acting in his own deliberate judgment.

DIVISION 5. REMOVAL, ETC., OF CERTAIN OFFICIALS

160. Interpretation of Division 5

In this Division-

“the appropriate authority”, in relation to an office or position to which this Division applies, means-

  1. 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
  2. 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-

  1. that other person or authority; and
  2. a member of that other authority.

161. Application of Division 5

  1. This Division applies to the offices of-
    1. Secretary to Government; and
    2. Attorney-General; and
    3. Auditor-General; and
    4. Commissioner of Police; and
    5. members of the Public Service Commission,

    and any other office or position to which this Division is applied by an Act of Parliament.

  2. The provisions of this Division shall be read subject to section 142 (localization).

162. Removal of prescribed officials from office

  1. Subject to section 164 (contract employment), the holder of an office or position to which this Division applies may be removed from office only-
    1. 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
    2. 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-
    1. the question of his removal from office has been referred to a tribunal appointed under subsection (3); and
    2. 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-
    1. a chairman who is qualified for appointment as a Judge of the High Court; and
    2. 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-
    1. is the Governor-General; or
    2. is a member of Parliament; or
    3. is a member of the appropriate authority in relation to the person concerned; or
    4. is, or has been within the preceding 12 months, a subordinate of the person concerned; or
    5. has been involved in formulating advice on the question.
  5. The tribunal shall investigate the question and report on it to the appropriate authority, with its advice whether the person concerned should be removed from office.
  6. The provisions of Schedule 3 (procedure, etc., of the Public Service Commission and Certain Tribunals) apply to and in respect of the tribunal.

163. Suspension of prescribed officials

  1. If the question of removing a person from office has been referred to a tribunal under section 162 (removal of prescribed officials from office), the appropriate authority may suspend him from office.
  2. A suspension under subsection (1)-
    1. may be lifted at any time by the appropriate authority; and
    2. 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-

  1. 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
  2. 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.

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