Tuvalu 1986 Constitution (reviewed 2010) - Page 13 of 17

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SCHEDULE 1. RULES FOR THE INTERPRETATION OF THE CONSTITUTION (Section 4)

1. Application of Schedule 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.
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.
This Schedule shall be read subject to section 4 (interpretation of the Constitution)

2. General definitions

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-
  1. their repeal, with or without re-enactment or the substitution of new provisions; and
  2. the modification of them or of their application; and
  3. their suspension, in whole or in part, or the lifting of any suspension; and
  4. 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;
  
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  “Appropriation Bill” means a Bill dealing only with appropriations of public money and matters incidental to appropriations of public money;
  
  “the Attorney-General” means the Attorney-General for Tuvalu whose office is provided for by section 79 (the Attorney-General);
  
  “the Auditor-General” means the Auditor-General for Tuvalu whose office is provided for by section 170 (establishment of the office of Auditor-General);
  
  “Bill” means a proposed Act of Parliament that has been introduced into Parliament;
  
  “bye-election” means an election of a member of Parliament consequent on a casual vacancy;
  
  “caretaker government” means a Cabinet continuing in office under section 71 (caretaker governments);
  
  “the Chief Justice” means the Chief Justice of Tuvalu whose office is provided for by section 122 (the Chief Justice of Tuvalu);
  
  “the Clerk of Parliament” means the Clerk of Parliament whose office is provided for by section 115 (Clerk of Parliament and other officers);
  
  “committee of Parliament” means a committee-
  
  appointed in accordance with the Rules of Procedure of Parliament, or in accordance with an Act of Parliament; and
  
  consisting of members of Parliament with or without other persons, and includes-
  
  a committee of the whole Parliament; and
  
  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 person appointed under section 69 (acting Ministers) to perform temporarily the functions of the Deputy Prime Minister; and
  
  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 naval, military or air force, or a coastguard or maritime surveillance service, whether of Tuvalu or of some other country; or
  
  the Tuvalu Police or any other police force established by Act of Parliament; or
  
  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-
  
  the Government; or
  
  a local government or authority; or
  
  a department, branch, agency or instrumentality of the Government or of a local government or authority; or
  
  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 person appointed in accordance with section 56(2) (which relates to the appointment of an acting Governor-General); or
  
  the Speaker, performing under section 56 (acting Governor-General)any of the functions of the Governor-General;
  
  “the Head of State” means-
  
  the Sovereign; or
  
  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);
  
  “meeting”, in relation to Parliament, means any period of sitting days during which Parliament-
  
  is not prorogued; and
  
  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 person appointed under section 69 (acting Ministers) to perform temporarily the functions of a Minister; and
  
  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-
  
  any body of persons, corporate or unincorporate; and
  
  the holder (whether substantive or other) of-
  
  any office or position in a State Service; or
  
  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 Minister performing the functions of the Prime Minister under section 68 (acting Prime Minister); and
  
  a person performing the functions of the Prime Minister in a caretaker Government;
  
  “prorogation” means the prorogation of Parliament under section 117 (prorogation of Parliament);
  
  “public officer” means a member of the Public Service;
  
  “Public Service” means the permanent civil administrative Ministries controlled by the Secretary to Government or a Secretary and subject to Executive supervision;
  
  “rules of court” means any law made by a competent authority for regulating the practice and procedure of a court;
  
  “the rules of Procedure of Parliament” means any rules made under section 108 “(Rules of Procedure)”;
  
  “the Secretary to Government” means the Secretary to Government whose office is provided for in section 78 (Secretary to Government);
  
  “session”, in relation to Parliament, means the series of sitting days occurring during the period-
  
  commencing with the first sitting day after Parliament is prorogued, or after a general election; and
  
  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-
  
  the Sovereign in Council; and
  
  the Court of Appeal; and
  
  the High Court;
  
  “superior court”, in relation to another court, means a court which has jurisdiction to determine appeals from, or to review, decisions of the other court;
  
  “taxation” includes rates, charges, fees and imposts of any kind;
  
  “the Tuvalu Police” means the State Service provided for by section 139(1)(b) (which relates to the establishment of the Tuvalu Police);
  
  “the United Kingdom” means the United Kingdom of Great Britain and Northern Ireland;
  
  “writing” includes any method of reprinting or reproducing words in a visible form;
  
  “year” means any period of 12 months.
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.
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

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.
The Schedules to this Constitution form part of this Constitution.
The head-notes to the sections of this Constitution do not form part of this Constitution, but other headings do form part of it.
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

This Constitution is intended to be read as a whole.
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-

the masculine gender includes the female gender; and
the feminine gender includes the masculine gender, and
the singular number includes the plural; and
the plural number includes the singular.

6. Time limits

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.
Where-
1. a time limit is imposed by this Constitution for any purpose; and
2. 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.
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

Where this Constitution requires or permits an act to be done by more than two persons, a majority of them may do it.
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.
A power conferred by this Constitution to determine the procedures of a body includes power to determine a quorum (not being fewer than a majority of the total membership).

9. References to “total membership”

A reference in this Constitution to the total membership of a body or authority is a reference to the total number of seats or places on the body or authority, irrespective of whether any of them are vacant.

10. Performance of constitutional functions

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.
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.
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

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-
1. it is for any reason not practicable to apply for the approval immediately; and
2. 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.
If later approval is refused, the refusal takes effect as a disallowance of the appointment or act.
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

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.
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.
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-
1. to remove or suspend a person so appointed; and
2. to appoint another person temporarily in the place of a person so removed or suspended; and
3. where the holder of the office or position is-
  1. unavailable; or
  2. unable to perform the functions of the office or position,
  to appoint a person temporarily in his place; and
4. 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.
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.
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-
1. to require the holder of the office or position to retire; or
2. to terminate any contract under which the holder of the office or position is employed; or
3. 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.
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-
1. on a date specified in the notice; or
2. 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.
When the holder of an office or position is on leave of absence pending relinquishment of the office or position-
1. another person may be appointed to the office or position; and
2. 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.
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-
1. he is on leave of absence pending relinquishment of the office or position; or
2. he is on leave without pay from the office or position; or
3. he is receiving a pension or some other similar allowance; or
4. he is a retired or reserve member of a naval, military or air force, or a special constable; or
5. he is a member of the staff of a local government or authority; or
6. 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.
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

Subject to subsection (2), a reference in this Constitution or any other law to the Sovereign of Tuvalu includes a reference to-
1. the Heirs and Successors of the Sovereign as declared or ascertained by or under an Act of Parliament; and
2. any person exercising the whole or the relevant part of the sovereignty of Tuvalu in accordance with an Act of Parliament.
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-
1. the Sovereign of the United Kingdom; or
2. any person exercising the whole or the relevant part of the sovereignty of the United Kingdom,
as the case requires, in accordance with the law in force in England.

14. References to the Sovereign of the United Kingdom

A reference in this Constitution or in any other law to the Sovereign of the United Kingdom includes a reference to any person exercising the whole or the relevant part of the sovereignty of the United Kingdom in accordance with the law in force in England.

15. Independence

Where this Constitution provides that any person or authority is not subject to the direction or control of any other person or authority, that provision does not prevent-

direction or control by a court in the performance of judicial functions conferred on it by law; and
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

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).
This section applies in a case where-
1. 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-
  1. in accordance with the advice of some other person or authority; or
  2. after consultation with some other person or authority; or
  3. subject to the approval of some other person or authority; and
2. 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.
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.
If in a case to which this section applies the prescribed authority acts as provided for by subsection (3)-
1. he or it shall, as soon as practicable, report the circumstances to-
  1. the relevant person or authority referred to in subsection (2)(a)(i) (ii) or (iii); and
  2. the Speaker, for presentation to Parliament; and
2. 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-

the exercise of the judgment must not be arbitrary or capricious; and
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

In this section, “repeal” includes revocation, cancellation, suspension and expiry.
The repeal of any provision of this Constitution does not-
1. revive anything that was not in force or existing immediately before the repeal took effect; or
2. affect the previous operation of the repealed provision, or anything duly done or suffered under it; or
3. affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed provision; or
4. affect any penalty, forfeiture or punishment incurred in respect of an offence against the repealed provision; or
5. affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
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.
If a provision of this Constitution is repealed and re-enacted (with or without modification), a reference in any other law to the repealed provision shall, unless the context indicates otherwise, be read as a reference to the substituted provision.

20. Effect of disallowance

Where this Constitution provides that a law or any other thing may be disallowed, the disallowance takes effect in the same way as a repeal, revocation or cancellation would take effect, except that if the disallowed law or thing altered any other law or thing the disallowance revives the other law, or the previous situation, as the case may be as in existence immediately before the disallowance.

21. Multiple oaths, etc

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.
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.
Where-
1. 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
2. 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.