Tuvalu 1986 Constitution (reviewed 2010)

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-
   1. the Court of Appeal; and
   2. 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-
   1. defence; or
   2. national security; or
   3. public safety; or
   4. public order; or
   5. the protection of the international standing and reputation of Tuvalu and its products (including the supply of labour overseas); or
   6. the protection and development of Tuvaluan values and culture.
3. A reference in this Part to consent is a reference to consent whether express or implied.
4. Where this Part requires or permits the consent of a person under the age of 18 years, the consent may be given on his behalf by one of his parents or guardians.

DIVISION 2. THE PRINCIPLES OF THE BILL OF RIGHTS

10. Freedom under law

1. Freedom based on law consists of the least restriction on the activities of individuals consistent with the public welfare and the maintenance and development of Tuvalu and Tuvaluan society in accordance with this Constitution and, in particular, in accordance with the Principles set out in the Preamble.
2. Everyone has the right to freedom based on law, and accordingly, subject to this Constitution-
   1. everyone has the legal right to do anything that-
      1. does not injure others or interfere with the rights and freedoms of others; and
      2. is not prohibited by law; and
   2. no-one may be-
      1. legally obliged to do anything that is not required by law; or
      2. 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:-
   1. the right not to be deprived of life (see section 16); and
   2. personal liberty (see sections 17 and 18); and
   3. security for his person (see sections 18 and 19); and
   4. the protection of the law (see section 22); and
   5. freedom of belief (see section 23); and
   6. freedom of expression (see section 24); and
   7. freedom of assembly and association (see section 25); and
   8. protection for the privacy of his home and other property (see section21); and
   9. 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-
   1. with respect for the rights and freedoms of others and for the national interest; and
   2. in acceptance of Tuvaluan values and culture, and with respect for them.
3. The purpose of this Part is to protect those rights and freedoms, subject to limitations on them that are designed primarily to give effect to subsection(2).

12. Application of Part II

1. Each provision of this Part applies, as far as may be-
   1. between individuals as well as between governmental bodies and individuals; and
   2. 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. Except in relation to any act that is done under a valid law which accords with traditional standards, values and practices, any act that is done under a valid law but that in the particular case-
   1. is harsh or oppressive; or
   2. is not reasonable in the circumstances; or
   3. is otherwise not reasonably justifiable in a democratic society having a proper respect for human rights and dignity,

   is an unlawful act.

3. The burden of showing that subsection (2) applies in respect of an act is on the party claiming that it does apply.
4. Nothing in this section affects the operation of any other law under which an act may be held to be unlawful.

13. The Principles of the Preamble

The Principles set out in the Preamble are adopted as part of the basic law of Tuvalu, from which human rights and freedoms derive and on which they are based.

14. Parliamentary declarations of purpose

1. When the purpose of an Act of Parliament is specifically declared in the Act, then in considering the possible effect on that Act of Division 3 (Protection of the Fundamental Rights and Freedoms) a court shall give due weight to that declaration as a statement of the considered opinion of Parliament.
2. If an Act of Parliament specifically declares that a certain provision is required in the national interest, a court shall, subject to subsection (3), presume that the provision was reasonably required in the national interest.
3. Subsection (2) does not apply if the High Court is satisfied that the provision could not reasonably be said to have been intended primarily to serve the national interest.

15. Reasonably justifiable in a democratic society

1. Notwithstanding anything to the contrary in this Part, other than-
   1. section 33 (hostile disciplined forces); and
   2. 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-
   1. traditional standards, values and practices, as well as previous laws and judicial decisions, of Tuvalu; and
   2. law, practices and judicial decisions of other countries that the court reasonably regards as democratic; and
   3. international conventions, declarations, recommendations and judicial decisions concerning human rights; and
   4. any other matters that the court thinks relevant.
6. Notwithstanding subsection (5), any law, or any act done under a valid law, which accords with traditional standards, values and practices shall not contravene subsection (1) above, unless the relevant traditional standard, value or practice would be regarded by an ordinary modern citizen of Tuvalu as one which should be eliminated.