In 2008 Tuvaluans rejected a constitutional referendum that proposed replacing the Queen of Tuvalu, with an elected president as the Head of State.
[7][8] The changes placed greater emphasis on Tuvaluan community values rather than Western concepts of individual entitlement.
[1] Simon Kofe, the Chair of the Constitutional Review Parliamentary Select Committee, summarised the changes to the Constitution as focussing on key areas: "(1) the climate crisis and recognition of Tuvalu's statehood; (2) enhancing the stability of governance; (3) judicial reforms; and (4) rights and culture.
Section 2(3) states: “The baseline coordinates declared by Schedule 6 shall remain unchanged, notwithstanding any regression of the low water mark or changes in geographical features of coasts or islands, due to sea-level rise or other causes, until and unless otherwise prescribed by an Act of Parliament.” Section 2(7) states: “The intent for perpetual Statehood prescribed in subsection (1) and the area of Tuvalu defined in subsection (2) constitutes the sovereign will of the people of Tuvalu.” The government of Tuvalu recognises that there is no international conventions that it can rely on that can recognise Tuvalu's new status as the effects of climate change are not addressed in the UN Convention on the Law of the Sea.
[17] Tuvalu, and other Pacific Ocean countries, support such a position on the impact on territorial boundaries caused by climate change.
The leaders of the Pacific Islands Forum countries published a declaration on 6 August 2021 that recalling that Pacific Islands Forum Members have a long history of support for the United Nations Convention on the Law of the Sea (the “Convention”), and which declaration ended with a proclamation: “that our maritime zones, as established and notified to the Secretary-General of the United Nations in accordance with the Convention, and the rights and entitlements that flow from them, shall continue to apply, without reduction, notwithstanding any physical changes connected to climate change-related sea-level rise.”[18][19] The 2023 amendments to the Constitution set out provisions related to: meetings of Parliament (section 119); the prorogation of Parliament (section 120); and the dissolution of Parliament (Section 121).
The 1986 version of the Constitution required that any person holding that position must have first held judicial office in “some country that has a legal system similar to that of Tuvalu”.
[15] The 2023 amendments to the Constitution balances Christian values, Tuvaluan values or culture, and also human rights recognised by international treaties and conventions, such as constitutional prohibitions on discrimination against people with disabilities and on the grounds of sex to provide greater protections for women.
Section 43 of the amended Constitution states: “There shall be a Charter of Duties and Responsibilities as contained in subsection (2) which shall declare the core values of Tuvaluan society in accordance with the principles of the Preamble and shall declare the fundamental duties and responsibilities of Tuvaluans in relation to themselves, their families, the community and the State”.
The statement in section 43, of the fundamental duties and responsibilities of Tuvaluans to themselves, their dependents, and others, includes: “to respect society, communities, islands, leaders, and cultural practices and norms; to know their duties and roles in society despite different religious beliefs and practices, to participate in and contribute to Island Communities; to work towards their own improvement, to live and work in peace and harmony with others and to use rights in a way that will not harm others.” (Section 43(2)(a)).
[1] The balancing process that is inherent in reconciling the Protection of the Fundamental Rights and Freedoms with Tuvaluan values or culture was considered, in relation to the 1986 drafting of the Constitution, in Teonea v Pule o Kaupule of Nanumaga.
In that case the High Court of Tuvalu, then subsequently the Court of Appeal of Tuvalu had to determine whether the freedoms of belief (s. 23); expression (s. 24) and assembly and association (s. 25) and the freedom from discrimination (s. 27) could be restricted when the Falekaupule (the traditional assembly of elders) of Nanumaga passed a resolution that had the effect of banning the Brethren Church from seeking converts in Nanumaga.
[22] Tuvaluans recognise the position of Governor-General is a prestigious role, the 2023 amendments to the Constitution provides for a process for the selection of the Governor-General of Tuvalu so that the position will rotation among the eight islands of the country.”[15] Part IV of the Constitution confirms the Head of State of Tuvalu is the King or Queen of the United Kingdom of Great Britain and Northern Ireland and provides for the rules for succession to the Crown.
Section 59 requires the Governor General to perform the functions of the Head of State when the Sovereign is outside Tuvalu or otherwise incapacitated.
[24] Part VI of the Constitution describes the Electoral laws, the role of the Parliament and the manner of exercise of the law-making power.
[27] Part IX of the Constitution establishes the office of Auditor-General and confirms parliamentary responsibility for finance and the National Budget.
Section 169(1) states “the raising and spending of money by the Government (including the imposition of taxation and the raising of loans) is subject to authorization and control by Parliament, and shall be regulated by an Act of Parliament.”[1] The role of the member of the Parliament of Tuvalu in the parliamentary democracy established in the Constitution, and the ability of a Falekaupule to direct an MP as to their conduct as a member, was considered in Nukufetau v Metia.
[28] When the Falekaupule attempted to enforce these directives through legal action, the High Court determined that the Constitution is structured around the concept of a parliamentary democracy;[29] and that “[o]ne of the most fundamental aspects of parliamentary democracy is that, whilst a person is elected to represent the people of the district from which he is elected, he is not bound to act in accordance with the directives of the electorate either individually or as a body.
The constitutional preservation of those traditional values is a vital part of present day Tuvalu but I cannot accept that a decision to implement them on one island is reasonable if it will seriously have an adverse effect on the whole country.
In the present case, I am satisfied that it was unreasonable for the Falekaupule to ignore the interests of the whole country over an affront to its dignity by one of the island community.”[31] The Chief Justice went on to state that “the carrying out of those threats by the orders banishing Metia and thus preventing him from properly performing the duties for which he was elected were clearly contrary to the spirit and intent of the Constitution and a totally unacceptable intrusion into the workings of the Tuvaluan Parliament.
[22] The Chief Justice stated that “In a country whose Constitution seeks to achieve a fair and democratic government, it must be contrary to the spirit of the Constitution for a Prime Minister who knows that he has actually lost his support in the House to try and stay in power by delaying the meeting of Parliament at which the loss of confidence would be confirmed.
Thus, in the present case, the Prime Minister could not be said to have flouted the aspirations of section 4 by remaining in power prior to the by-elections in May even though at that time he had clearly lost his majority but, once those elections appeared to have changed the balance of power, it would accord with the principles of fair and democratic government to allow Parliament to decide as soon as possible.”[22] The Chief Justice then stated “The electorate is entitled to expect its wishes to be reflected in the composition of government as soon as practicable after it has voted.
That must apply whenever the result of any election appears to have changed the balance of power in Parliament.”[22] The Chief Justice concluded by setting out the sequence of events for the Governor General to consider under what was then section 116(1), and is now section 119(1) of the 2023 Constitution, to assist his decision what is the appropriate action to take in relation to the time of the calling of the next meeting of Parliament.
[33][34] The 2013 Nukufetau by-election was won by the opposition candidate, which result meant that Telavi did not appear to have the support of a majority of the members of parliament.