Tuvalu: The Constitutional Crisis Not Heard Around the World
September 13, 2023
In 2012, Tuvalu, a small island nation located in the Pacific Ocean, experienced an event that never took place in the country's history. In December of that year, Tuvalu's Minister of Finance, Lotoala Metia, passed away which led to both government and opposition having seven members in parliament. According to Section 88 of Tuvalu's constitution, "There shall be a bye-election as soon as practicable after the occurrence of any casual vacancy in the membership of Parliament." Metia represented the island of Nukufetau in parliament and just before his passing, tensions arose because the local island council (Falakapule) dismissed island officials. Willy Telavi, Tuvalu's Prime Minister at the time, saw the dismissal of the island officials as wrongful and would not hold the by-election until that issue was resolved. In February 2013, opposition accused the government of an unnecessary delay, and in April of that year, Taukelina Finikaso, an opposition MP, filed a claim in the High Court of Tuvalu. On May 24th, the Court ruled in favor of the opposition, stating the by-election must take place by the end of June.
The by-election was held in late June and opposition candidate Elisala Pita won the election, garnering 67% of the vote. This win gave the then-opposition a majority in parliament. With a majority, opposition wanted Telavi to summon parliament so a vote of no confidence in his government could be passed but according to the constitution, "Sessions of Parliament shall be held in such a way that no period of 12 months intervenes between the end of one session and the beginning of the next." Telavi summoned parliament after the death of Metia in December 2012 and exercised his constitutional power to not have to summon parliament until December 2013. Governor-General Iakoba Italeli, Queen Elizabeth II's representative, exercised his reserve power at the request of opposition and ordered Telavi to summon parliament. When parliament sat on July 30th, a failed motion for parliament to be dissolved was directly followed by the resignation of Taom Tanukale, Tuvalu's Minister of Health. The logic behind his resignation became clear when the Speaker of Parliament, Kamuta Latasi, adjourned parliament for six weeks so a by-election for the vacant seat could take place. The attorney-general, the government's main legal advisor, overruled Latasi and allowed the motion of no confidence to go ahead with the vacant seat. On July 31st, Italeli called for parliament to sit on August 2nd which was followed by Telavi advising Queen Elizabeth II to remove Italeli from office on the grounds he was no longer working with the government and Italeli dismissing Telavi as prime minister because a majority of parliament did not have confidence in him. Italeli utilized his reserve powers to appoint Enele Sopoaga as caretaker prime minister until an official vote could be held. On August 2nd, a vote of no confidence in the Telavi government was passed with an eight to four vote. On August 4th, Sopoaga was elected prime minister with an eight to five vote.
Prior to the vote of no confidence, an ex parte application was submitted to Gordon Ward, Tuvalu's Chief Justice of the High Court, by the office of the attorney-general requesting an order on the legality of the prime minister and governor-general removing each other fromoffice. Included in the ex parte application were five declarations, but Ward only accepted three: Itateli did in fact use his best judgment to act from July 3rd, 2013 to August 1st, 2013, the speaker of parliament cannot refuse to suspend parliament because a seat is vacant and that parliament is able to consider of vote of no confidence even if there are vacant seats.
To assess the validity of Italeli's removal of Telavi from office, Section 64 of Tuvalu's constitution must be looked at. According to Section 64, the prime minister can be removed from office if, "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," but this can only take place if a medical examination of the prime minister is completed. Telavi was never given a medical examination so according to Anne Twomey, Italeli's use of reserve power can only be justified by, "That it is an implied power that exists outside of the prescriptive provisions of the Constitution, perhaps justified by the doctrine of necessity or the principles of responsible government." Nevertheless, even if Italeli's dismissal of Telavi was invalid, it was validated with a vote of no confidence. According to Section 63 2(f) of Tuvalu's Constitution, "The office of the Prime Minister becomes vacant if a motion of no confidence in the Government receives in Parliament the votes of a majority of the total membership of Parliament."
Before Tuvalu's case, a constitutional crisis regarding the role of the governor-general took place in Tuvalu's large neighbor, Australia. Gough Whitlam was elected Prime Minister in 1972, giving the Australian Labor Party (ALP) rule for the first time in over two decades. By 1975, the ALP had a majority in the House but not the Senate. The opposition majority in the House at times crossed the aisle to pass legislation but other times did not. Tensions between the government and opposition had already been high and on October 15th of that year, Malcolm Fraser, the leader of the opposition in the Senate, announced that the opposition would continue to block supply bills until a new election was called for the House. In a private meeting on November 11th, 1975, Fraser declined Gough's request to hold a half-senate election to resolve the deadlock between the two chambers of government. Gough met with Kerr later that day to give a document ordering a half-senate election but before he was able to, Kerr gave Gough a document dismissing him from his position as prime minister. As caretaker prime minister, appointed by Kerr, Fraser orchestrated the passing of the supply bills and called for a double dissolution.
While Australia's constitutional crisis included the dismissal of the prime minister by the governor-general, there are differences between the two cases. First, Kerr was in communication with the Royal Palace prior to dismissing Gough to confirm he had this reserve power. In 2020, The High Court of Australia ruled in Hocking vs DG National Archives of Australia, that the communication between Kerr and the Palace must be publicly released under the Archives Act of 1983. In Tuvalu, there is no record of Italeli communicating with the Royal Palace regarding the potential to dismiss Telavi as prime minister before it took place. Secondly, according to Wallace Brown, in 1977, results from a referendum resulted in a constitutional alteration which stated "A member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant," and the appointed senator must affiliate with the same party as the senator he or she is replacing." The governor-general preserved the power to dismiss the prime minister. Unlike Australia, Tuvalu's political leaders
moved on from this event without amending its constitution and research provides no reasoning for the unresponsiveness of Tuvalu's government.
The lack of response from Tuvalu's government hasn't proved disastrous yet but another period with a non-functional government could prove costly. The United Nations Development Programme (UNDP) started a review of Tuvalu's constitution in 2016 after recognizing issues with the role of religion and gender but also with the roles of the prime minister, governor-general, and speaker. The UNDP reported, "The constitution does not include clear language requiring an investiture vote, for example, nor does it have temporal limits on votes of no confidence." While the review was completed in October 2022, the published results have been limited. Although Tuvalu's government is not required to accept the recommendations of the UNDP, it is an opportunity for positive change to occur.
Constitutional crises in Tuvalu and Australia that lead to a non-functional government can have vast differences based on the development level of each country. A period with a non-functioning government would be less felt by Australians than by Tuvaluans because Australia is significantly more developed than Tuvalu. Tuvaluans continue to face harsher effects of climate change and its government, when functioning, actively passes legislation and communicates with countries to assist with adapting and mitigating these effects. Tuvalu's parliament is currently working on an amendment to include their land and maritime boundaries to ensure they are reserved regardless of how high the sea level rises. Tuvalu's population, although small, relies on its government substantially more than Australia's does and a non-functioning government in Tuvalu would leave its citizens in despair regarding their future. In a time of emergency because of climate change, the passivity of Tuvalu's government regarding the country's constitutional crisis of 2012-2013, could have long-term effects on the political stability and development of its future.
John Augé is a second year Master's of International Relations candidate at Johns Hopkins School of Advanced International Studies (SAIS). His regional focus area of interest is the Pacific with his research and work revolving around sustainable development, climate justice, and intangible cultural heritage. John previously worked for the Tuvalu Climate Action Network (TuCAN), the country's leading NGO fighting climate change.