PART V. THE EXECUTIVE
DIVISION 1. THE EXECUTIVE AUTHORITY OF TUVALU
61. Vesting of the executive authority
- The executive authority of Tuvalu is primarily vested in the Sovereign, and in the Governor-General as the representative of the Sovereign.
- The executive authority so vested in the Sovereign shall be exercised in accordance with section 52 (performance of functions by the Head of State).
- Nothing in this section prevents a law from conferring functions on any other person or authority.
62. Offices of Ministers
- An office of Prime Minister is established.
- 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.
- The number of offices of Minister (other than the office of Prime Minister) shall not exceed one half of the total membership of Parliament.
- 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.
- Subject to section 71 (caretaker governments) and to subsection (6), all Ministers (including the Prime Minister) must be members of Parliament.
- If it is necessary to appoint a Minister (other than a Prime Minister) at anytime-
- after Parliament is dissolved under section 118 (dissolution of Parliament); and
- 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.
- Subject to sections 68 (acting Prime Minister) and 76 (proceedings in Cabinet), all Ministers other than the Prime Minister rank equally.
63. The Prime Minister
- The Prime Minister shall be elected by the members of Parliament in accordance with Schedule 2 (Election and Appointment of Prime Minister).
- The office of the Prime Minister becomes vacant-
- on death; or
- when a new election to the office of Prime Minister is completed; or
- if he ceases to be a member of Parliament for any reason other than the dissolution of Parliament; or
- if he resigns his office by notice in writing to the Head of State; or
- if he is removed from office under section 64 (removal from office of an incapacitated Prime Minister); or
- if a motion of no confidence in the Government receives in Parliament the votes of a majority of the total membership of Parliament.
- 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
- If in the opinion of the Head of State, acting in his own deliberate judgment after consultation, in confidence, with the other Ministers-
- the Prime Minister is unable to perform properly the functions of his office because of infirmity of body or mind; and
- 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.
- The persons appointed under subsection (1) shall investigate the question and make a joint professional report to the Head of State personally.
- 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-
- the Prime Minister; and
- the Speaker; and
- the Cabinet,
remove the Prime Minister from office.
65. Suspension of Prime Minister
- 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.
- A suspension under subsection (1)-
- may be lifted at any time by the Head of State, acting in his own deliberate judgment; and
- 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.
- 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
- 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.
- The office of a Minister other than the Prime Minister becomes vacant-
- on death; or
- when a new election to the office of Prime Minister is completed; or
- if the Minister ceases to be a member of Parliament for any reason other than the dissolution of Parliament; or
- subject to subsection (3), if the Minister resigns his office by notice in writing to the Head of State; or
- if the Minister is removed from office by the Head of State, acting in accordance with the advice of the Prime Minister; or
- in the circumstances set out in section 63(2)(f) (which relates to votes of no confidence in Government).
- 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
- This section applies when the Prime Minister is-
- absent from Tuvalu; or
- for any other reason unable to perform the functions of his office.
- 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.
- If-
- there is no office of Deputy Prime Minister; or
- there is a vacancy in the office of Deputy Prime Minister; or
- the Deputy Prime Minister is absent from Tuvalu; or
- 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
- When-
- subject to section 71 (caretaker governments), the office of a Minister other than the Prime Minister is vacant; or
- a Minister other than the Prime Minister is-
- absent from Tuvalu; or
- 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.
- 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-
- the performance of any function of the Prime Minister by another Minister in accordance with section 68 (acting Prime Minister); or
- 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.
71. Caretaker governments
- 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.
- If the Prime Minister-
- dies; or
- ceases to be a member of Parliament for any reason other than the dissolution of Parliament; or
- is removed from office under section 64 (removal from office of an incapacitated Prime Minister),
then subsections (4)-(7) apply.
- 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.
- 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.
- If-
- there is no office of Deputy Prime Minister; or
- subject to section 69 (acting ministers), there is a vacancy in the office of Deputy Prime Minister; or
- the Deputy Prime Minister is absent from Tuvalu; or
- 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.
- 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.
- 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).
DIVISION 3. THE CABINET
73. Establishment of the Cabinet
- A Cabinet is established for Tuvalu.
- 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 Ministers
- The Head of State, acting in accordance with the advice of the Prime Minister may-
- 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
- from time to time re-assign any such responsibility either on a substantive basis or on an acting basis.
- Except as provided by or under an Act of Parliament-
- all Ministries, offices and functions of Government shall be the responsibility of the Prime Minister or another Minister; and
- the Prime Minister is responsible for any function of Government that is not specifically assigned under this section.
76. Proceedings in Cabinet
- Meetings of the Cabinet shall be summoned by the Prime Minister or Minister appointed to act as Prime Minister.
- The Prime Minister shall, as far as practicable, attend and preside at all meetings of the Cabinet, and in his absence-
- if there is an office of Deputy Prime Minister and the Deputy Prime Minister is present – the Deputy Prime Minister shall preside; and
- in any other case – a Minister chosen by the Ministers present shall preside.
- 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-
- it is not practicable for a full quorum to be present; and
- 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.
- Subject to the requirement of a quorum in accordance with subsection (3)-
- the Cabinet may conduct any business even if there is a vacancy in its membership; and
- proceedings in Cabinet are valid even if a person who was not entitled to do so took part in those proceedings.
- 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
- The succeeding provisions of this section are subject to any Act of Parliament.
- 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.
- No question whether any procedures prescribed for the Cabinet have been, or are being, complied with shall be considered in any court.
- 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.
- 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
- An office of Secretary to Government is established as an office in the Public Service.
- The Secretary to Government shall be appointed in accordance with section 159(3)(a) (which relates to the appointment of the Secretary to Government).
- 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 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.
- 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
- An office of Attorney-General for Tuvalu is established as an office in the Public Service.
- The Attorney-General shall be appointed in accordance with section 159(4)(a) (which relates to the appointment of the Attorney-General).
- The Attorney-General is the principal legal adviser to the Government, and has such other functions as are prescribed.
- 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.
- Unless he is excused by or under the authority of Parliament, the Attorney-General-
- shall attend all meetings of Parliament; and
- 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).
- Unless he is excused by or under the authority of the Prime Minister, the Attorney-General shall attend all meetings of the Cabinet.
- Subject to the succeeding provisions of this section, in any case where he considers it desirable to do so the Attorney-General may-
- take criminal proceedings against any person before a court (other than a court-martial or other military tribunal) in respect of an offence; or
- take over and continue any criminal proceedings referred to in paragraph (a) that have been taken by any other person or authority; or
- 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.
- Subject to any Act of Parliament, the functions of the Attorney-General maybe performed-
- in person; or
- 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.
- 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.
- 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.
- 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.
- Subject to subsection (13), for the purposes of this section-
- an appeal from a decision in any proceedings; and
- a case stated or question of law reserved for the purpose of any proceedings,is part of those proceedings.
- The functions of the Attorney-General under subsection (7)(c) shall not be exercised in relation to-
- an appeal by a person convicted in any proceedings; or
- a case stated or question of law reserved at the instance of a person convicted in any proceedings; or
- a judicial review of any proceedings.
DIVISION 5. THE POWER OF MERCY
80. Commutation, etc., of sentences
- The Head of State, acting in accordance with the advice of the Cabinet, may-
- grant to a person a pardon, either free or subject to lawful conditions, for an offence; or
- 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
- 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
- substitute a less severe form of punishment for any punishment imposed on a person for an offence; or
- remit the whole or part of-
- any punishment imposed on a person for an offence; or
- any penalty, fine or forfeiture otherwise due to the Government on account of an offence.
- In any case in which the power of mercy is exercised in accordance with subsection (1), the Prime Minister shall present to Parliament-
- if the power is exercised during a meeting of Parliament – during that meeting; or
- 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.
