Tuvalu

I. Country History

The Tuvalu Islands are situated in the Pacific Ocean, between Hawaii and Australia. Their closest neighbors are the Kiribati islands, Samoa and Fiji. Tuvalu is the fourth smallest country in the world, and it is amongst the most remote islands in the pacific. It is made up of 9 islands, with 5 coral true atolls, 3 reef atolls, and 1 island with both characteristics.   Tuvalu’s land area is approximately 26 square kilometers, the average elevation is 1 meter above sea level, and the highest point is approximately 5 meters above sea level. Besides, because of the limited availability of land, there is an overpopulation on Funafuti, the main island, and there is not enough space to create infrastructures for waste disposal. This results in the pollution of the water and the soil, which is thus not fertile and does not have the capacity to support a lot of agricultural production. In recent years, Tuvaluans have resorted to imports of foods and goods.

While the land area is small, the Marine Exclusive Economic Zone, spans 900,000 square kilometers, making the waters Tuvalu’s most valuable resource. The composition and morphology of the island makes it highly vulnerable to environmental issues, like sea level rise or erosion.

Tuvalu was formerly known as Ellice Islands, named after Edward Ellice, a British politician, who owned the boat thanks to which the atoll of Funafuti was discovered in 1819. The islands were first inhabited 2000 years ago by Samoa and Tonga peoples, but the most recent culture seems to go back only 300 years. The Ellice islands were under British protectorate from 1892 to 1916. In 1974, the Ellice islands voted for independency, and they finally became independent on October 1st 1978. Tuvalu applied for commonwealth membership and became a member of the United Nations in 2000. The name Tuvalu, meaning “eight islands standing together” was adopted during the independence of the country. 

II. Type of System

• The Executive

The British monarch is the Head of State, they are represented by the Governor General, appointed on the advice of the prime minister and the cabinet. The Prime minister is chosen by the elected members of Parliament, and the Cabinet is appointed by the Governor General. The Cabinet is comprised of the prime minister, the deputy prime minister and the members of parliament. The attorney general is the legal advisor of the government, the secretary to government coordinates the work of ministries and offices of government.

• The Legislature

The Parliament is elected through universal suffrage and is composed of one chamber of 15 members. Each island elects two members apart from Nukulaelae, which has the smallest population, which elects one member. The parliamentary elections are held every four years.

• The Judiciary

According to Section 122 of the Constitution of Tuvalu, “The judicial system of Tuvalu consists of – (a) the Sovereign in Council (as provided for in Division 4); and (b) the Court of Appeal for Tuvalu (as provided for in Division 3); and (c) the High Court of Tuvalu (as provided for in Division 2); and (d) such other courts and tribunals as are provided for by or under Acts of Parliament.” The “other courts and tribunals” provided by Acts of parliament include, Senior Magistrates' Courts, Island Courts, and Land Courts.

• The Court System

- The Sovereign in Council

Section 139 of the Constitution states that an appeal can be made from a decision of the court of appeal to the sovereign in council, which has jurisdiction to hear appeals on three matters according to section 1.a. of the Constitution : “(i) in the case of a final decision on a question as to the interpretation or application of this Constitution; or (ii) in the case of a final decision in proceedings under Division 5 (Enforcement of the Bill of Rights) of Part II; (iii) in the case of – (A) a final decision; or (B) an interlocutory decision, that is to say, a decision of a kind referred to in subsection (2),”

- The Court of Appeal

Under Section 138 of the Constitution, this court has jurisdiction to hear of matters regarding appeals against determinations as to contraventions of the Bill of Rights, appeals on questions as to membership of Parliament and any act of Parliament.

- The High Court

The High Court is established under Section 123 of the Constitution, and Section 133 sets the jurisdiction of the High court, which relates to : the bill of right and its enforcement, questions of membership or parliament, constitutional interpretation, appellate jurisdiction of the high court, effects of parliamentary declaration of purpose and other jurisdictions.

Under Section 56 of the Criminal Procedure Code (CPC), “The High Court may inquire into and try any offence subject to its jurisdiction at any place where it has power to hold sittings: Provided that, except under section 70 of the CPC, no criminal case shall be brought under the cognisance of the High Court unless the same shall have been previously investigated by a magistrate’s court and the accused person shall have been committed for trial before the High Court.” Section 53 of the CPC sets the general authority of the high court and magistrates : " The High Court and every magistrate’s court has authority to cause to be brought before it any person who — (a) is within Tuvalu and is charged with an offence committed within, or which may be inquired into or tried within, the local limits of its jurisdiction; or (b) is within the local limits of its jurisdiction and is charged with an offence committed within Tuvalu, or which according to law may be dealt with as if it had been committed within Tuvalu, and to deal with the accused person according to its jurisdiction.”

- The Magistrates Court

This Court was established through the Magistrate’s Court Act. Section 20 of the CPC establishes the powers of the magistrates courts as : “Subject to any other provision of this Act and to the provisions of any other law for the time being in force in Tuvalu, every magistrate’s court shall have and exercise jurisdiction in civil and criminal matters as in this Act provided.”

The court has : 

-> Civil Jurisdiction under section 22 of the CPC: “(1) The jurisdiction of a magistrate’s court in civil causes and matters shall be limited as provided by this section and by any other law for the time being in force. (2) No magistrate’s court shall have jurisdiction in any civil cause or matter in respect of which original jurisdiction to hear and determine the same is conferred on a lands court by the Native Lands Act. (3) The Governor-General in consultation with the Chief Justice may by order limit the civil jurisdiction of magistrates’ courts in such manner as he may think fit and such an order may make different provision for the Senior Magistrate’s Court from that made for other magistrates’ courts. (4) Subject to any law for the time being in force, if in any suit or civil cause or matter before a magistrate’s court the title to any land is disputed or the question of the ownership thereof arises the court shall — (a) where original jurisdiction to hear and determine such dispute or question is conferred by law upon any lands court, transfer the dispute or question to that lands court for adjudication or determination and until such adjudication or determination (and if any appeal lies therefrom the effluxion of the time within which such appeal may be lodged and, if any such appeal is lodged, its final determination) adjourn the suit, civil cause or matter wherein such dispute or question arose; or (b) where original jurisdiction to hear and determine such dispute or question is not conferred by law on any lands court, if all the parties interested therein consent, adjudicate thereon or, if they do not so consent, apply to the High Court to transfer such suit, cause or matter to itself.”

-> Criminal jurisdiction under section 25 of the CPC: “(1) Subject to the provisions of any other law for the time being in force, the Senior Magistrate’s Court shall have jurisdiction to try summarily any criminal offence — (a) for which the maximum punishment prescribed by law for such offence does not exceed — (i) 14 years’ imprisonment; or (ii) a fine; or (iii) both such imprisonment and such fine; or (b) in respect of which jurisdiction is by any law expressly conferred upon the Senior Magistrate’s Court or it is expressly provided that such offence may be tried summarily: Provided that the maximum punishment which the Senior Magistrate’s Court may impose shall not exceed — (i) a term of imprisonment for 5 years; or (ii) a fine of $1,000; or (iii) both such imprisonment and such fine. (2) Subject to the provisions of any other law for the time being in force, a magistrate’s court shall have jurisdiction to try summarily any criminal offence — (a) for which the maximum punishment prescribed by law for such offence does not exceed — (i) imprisonment for a term of 1 year; or (ii) a fine of $200 dollars; or (iii) both such imprisonment and such fine; or (b) in respect of which jurisdiction is by any law expressly conferred upon a magistrate’s court or it is expressly provided that such offence may be tried summarily. (3) Notwithstanding the provisions of the preceding subsections, the Senior Magistrate, by order under his hand, may invest a magistrate’s court, and the Chief Justice, by order under his hand and the seal of the High Court, may invest the Senior Magistrate’s Court and any magistrate’s court with jurisdiction to try summarily any offence which would otherwise be beyond its jurisdiction.7 8 9 (4) In the case of consecutive sentences imposed by a magistrate’s court in respect of 2 or more distinct offences arising out of the same facts it shall not be necessary for such magistrate’s court to send the offender for trial before the High Court by reason only that the aggregate punishment for the several offences in respect of which such sentences are imposed is in excess of the punishment which it is competent to impose on conviction for a single offence: Provided that the aggregate punishment imposed in the form of consecutive sentences shall not exceed twice the amount of the punishment which such magistrate’s court is competent to impose in respect of one offence in the exercise of its ordinary jurisdiction.”

- The Island Courts

Each Island has a court, subordinated to the Senior Magistrates court. It has jurisdiction within the limits of the islands on which it is situated, on both civil and criminal causes. The Powers of the Island courts are determined in Section 5 of the Island Courts Act : “(1) Subject to the other provisions of this Act and of any other law for the time being in force in Tuvalu, an island court shall have and exercise the jurisdiction in civil causes and matters for the time being set out in Schedule 1 and in criminal causes and matters for the time being set out in Schedule 2. (2) The Governor-General, after consultation with the Chief Justice, may by notice add to, amend or delete any part of Schedules 1 or 2.”

- The Lands Court

Each Island has a Land court, established under the Native Lands act. These courts are responsible for matters relating to land, wills, inheritances and adoptions, etc…