Falekaupule
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The Falekaupule on each of the
Islands of Tuvalu Tuvalu consists of nine separate islands: six atolls and three reef islands. An atoll typically consists of several islets: Tuvalu has a total of 124 islands and islets. Each island is surrounded by a coral reef. Tuvalu's small, widely scattered a ...
is the traditional assembly of elders or ''te sina o fenua'' (literally: "grey-hairs of the land" in the
Tuvaluan language Tuvaluan (), often called Tuvalu, is a Polynesian language closely related to the Ellicean group spoken in Tuvalu. It is more or less distantly related to all other Polynesian languages, such as Hawaiian, Māori, Tahitian, Samoan, Tokelauan ...
). Under the Falekaupule Act (1997), the powers and functions of the ''Falekaupule'' are now shared with the ''Kaupule'' on each island, which is the executive arm of the ''Falekaupule'', whose members are elected. The ''Kaupule'' has an elected president - ''pule o kaupule''; an appointed treasurer - ''ofisa ten tupe''; and is managed by a committee appointed by the ''Kaupule''. The Falekaupule Act (1997) defines the ''Falekaupule'' to mean "traditional assembly in each island ... composed in accordance with the Aganu of each island". ''Aganu'' means traditional customs and culture. The ''Falekaupule'' on each island has existed from time immemorial and continues to act as the local government of each island. Generally men aged 50 years, and on some islands men aged 60 years, do most of the talking and decision making at meetings of the community councils (''Falekaupule''), which are organised according to the law and custom of each island. Although women can vote in meetings of the Falekaupule on 7 of the 9 islands, most do no exercise their voting rights. The traditional island meeting hall where important matters are discussed and which is also used for wedding celebrations and community activities is also known as the ''falekaupule'' or '' maneapa''.


Establishment of the Kaupule

Section 5 (1) of the Falekaupule Act (1997) establishes the ''Kaupule'' of each ''Falekaupule'', with six members who are elected as provided for in section 8. Section 5 (1) establishes that the ''Kaupule'' is the executive arm of the ''Falekaupule'' and performs all the functions conferred on the ''Falekaupule'' by the Falekaupule Act or any other Act, except for certain specified functions. Under section 6 the ''Kaupule'' is a “body corporate having perpetual succession and a common seal and shall be capable of suing and being sued and of acquiring, holding and disposing of movable and immovable property.” Under section 18 provides for the election of the ''Pule o Kaupule'' - the person elected to preside over a ''Kaupule''.


Functions of the Falekaupule

As described in section 40 and Schedule 3 of the Falekaupule Act (1997) the general functions of a ''Falekaupule'' includes local government functions related to agriculture, livestock and fisheries; building and town or village planning; education; forestry and trees; land; relief of famine and drought; markets; public health; public order, peace and safety; communications and public utilities; trade and industry; and other miscellaneous functions. The educational function of the ''Falekaupule'' includes responsibility to build, equip, maintain or manage any kindergarten primary school and primary school in the ''Falekaupule'' area; to supervise the compulsory education of children or specified categories of children between the ages of 5 and 15 years in accordance with the Education Act; and to grant and maintain scholarships or bursaries to persons resident in the ''Falekaupule'' area to attend any school or other educational institution in Tuvalu or elsewhere. The government secondary school in Tuvalu is
Motufoua Secondary School Motufoua Secondary School is a boarding school for children on Vaitupu atoll, Tuvalu. it is the largest high school in Tuvalu. As Tuvalu consists of nine islands, the students reside on Vaitupu during the school year and return to their home is ...
, which is located on
Vaitupu Vaitupu is the largest atoll of the nation of Tuvalu. It is located at 7.48 degrees south and 178.83 degrees east. There are 1,061 people (2017 Census) living on with the main village being Asau. Geography The island, which covers approxima ...
. Students board at the school during the school term, returning to their home islands each school vacation.
Fetuvalu Secondary School Fetuvalu Secondary School is a day school in the Pacific island nation of Tuvalu that is operated by the Church of Tuvalu and is located on Funafuti atoll. The school re-opened in 2003 having been closed for 5 years; the school offered Form 3 and a ...
, a day school operated by the
Church of Tuvalu The Congregational Christian Church of Tuvalu ( Tuvaluan: ''Te Ekalesia Kelisiano Tuvalu'', EKT), commonly the Church of Tuvalu, is a Christian Church which is the state church of Tuvalu, although this status merely entitles it to "the privilege o ...
, is on Funafuti. Among the miscellaneous functions the ''Falekaupule'' is responsible for registering marriages, births or deaths. The ''Falekaupule'' is also directed to preserve the heritage of each island such as promoting and regulating the development of an arts and crafts industry; and the protection and preservation of the traditional culture of the ''Falekaupule'' area, including powers to prohibit or control the removal from it of any antique artifact. In accordance with section 41 and Schedule 3 “ shall be the duty of every Falekaupule and of every Kaupule to use its resources to assist the police in the detection and prevention of crime within the area of its authority.”


Falekaupule Trust Fund (FTF)

The role of each ''Falekaupule'' in the economy of each island is assisted by the operation of the Falekaupule Trust Fund (FTF), which is a trust fund for outer island development that was established following the success of the
Tuvalu Trust Fund The Tuvalu Trust Fund is an international sovereign wealth fund established to benefit Tuvalu, a small, central Pacific island nation, by providing income to cover shortfalls in the national budget, underpin economic development, and help the na ...
in the management of the
Economy of Tuvalu Tuvalu is a Polynesian island nation located in the Pacific Ocean, midway between Hawaii and Australia, with a population of 11,192 per the 2017 census. The economy of Tuvalu is constrained by its remoteness and lack of economies of scale. Gover ...
. The
Asian Development Bank The Asian Development Bank (ADB) is a regional development bank established on 19 December 1966, which is headquartered in the Ortigas Center located in the city of Mandaluyong, Metro Manila, Philippines. The bank also maintains 31 field office ...
(ADB) provided A$6 million in loan funds, with the FTF being established in July 1999 and with the funds being invested in February 2000. The
Government of Tuvalu The politics of Tuvalu takes place in a framework of a parliamentary representative democratic monarchy, whereby the Monarch is the head of state, represented by the Governor-General, while the Prime Minister is the head of government. Executiv ...
agreed to match the amount provided by the ADB, with contributions from each of the eight island communities of Tuvalu, and with the contributions from the island contributions also matched by the Government. The governance structure of the FTF follows that of the Tuvalu Trust Fund, but each with island community having a representative on the board and the government provides a non-voting chair. In 2001 the value of the FTF was around $15 million of which $1.2 million was contributed by the island communities.


Limits to the power of the Falekaupule

The traditional power of the high-chief, or
ulu-aliki This is a list of currently reigning constituent monarchs, including Traditional authority, traditional rulers and governing constitutional monarchs. Each monarch listed below reigns over a legally recognised dominion, but in most cases possess ...
, and the sub-chiefs ( alikis) and the ''Falekaupule'' was without challenge. The consequence of defying the customary authority of the ''Falekaupule'' could result in customary process known as ''falaesea'' (to banishment a person from the island). A possible example of banishment is that in the late 17th century fighting occurred in Niutao between competing leaders. The followers of the defeated leaders were forced off
Niutao Niutao is a reef island in the northern part of Tuvalu. It is one of the nine districts (islands) of Tuvalu. It is also one of the three districts that consist of only one island - not counting the three islets inside the closed lagoon. Niutao has ...
and were allowed to settle on
Nanumea Nanumea is the northwesternmost atoll in the Polynesian nation of Tuvalu, a group of nine coral atolls and islands spread over about of the Pacific Ocean just south of the equator and west of the International Date Line. Nanumea is with a pop ...
. Tuvalu is now
parliamentary democracy A parliamentary system, or parliamentarian democracy, is a system of democratic governance of a state (or subordinate entity) where the executive derives its democratic legitimacy from its ability to command the support ("confidence") of the ...
with the ''
Constitution of Tuvalu The Constitution of Tuvalu states that it is “the supreme law of Tuvalu” and that “all other laws shall be interpreted and applied subject to this Constitution”; it sets out the Principles of the Bill of Rights and the Protection of the ...
'' stating that it is "the supreme law of Tuvalu" and that "all other laws shall be interpreted and applied subject to this Constitution"; it sets out the Principles of the Bill of Rights and the Protection of the Fundamental Rights and Freedoms. Therefore, the traditional power of the ''Falekaupule'' is proscribed by the Constitution and by other elements of the
Law of Tuvalu The Law of Tuvalu comprises the legislation voted into law by the Parliament of Tuvalu and statutory instruments that become law; certain Acts passed by the Parliament of the United Kingdom (during the time Tuvalu was either a British protectorate ...
.


The relationship with members of parliament

The role of the member of the
Parliament of Tuvalu The Parliament of Tuvalu (called ''Fale i Fono'' in Tuvaluan, or ''Palamene o Tuvalu'') is the unicameral national legislature of Tuvalu. The place at which the parliament sits is called the ''Vaiaku maneapa''. The ''maneapa'' on each island is ...
in the parliamentary democracy established in the Constitution and the ability of ''Falekaupule'' to direct an MP as to their conduct as a member, was considered by the
High Court of Tuvalu The High Court of Tuvalu is the superior court of Tuvalu. It has unlimited original jurisdiction to determine the Law of Tuvalu and hears appeals from the lower courts. General jurisdiction of the High Court The High Court of Tuvalu has general ...
in ''Nukufetau v. Metia''. The ''Falekaupule'' of
Nukufetau Nukufetau is an atoll that is part of the nation of Tuvalu. The atoll was claimed by the US under the Guano Islands Act some time in the 19th century and was ceded in a treaty of friendship concluded in 1979 and coming into force in 1983. It has a ...
directed
Lotoala Metia Lotoala Metia (died 21 December 2012
, the elected member of parliament, as to which group of members he should join and when this directive was not followed the ''Falekaupule'' ordered Metia to resign as a member of parliament. When the ''Falekaupule'' attempted to enforce these directives through legal action, Ward CJ determined that the Constitution is structured around the concept of a parliamentary democracy; and that “ e 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. He is elected because a majority of the voters regard him as the candidate best equipped to represent them and their interests in the government of their country. He is bound by the rules of parliament and answerable to parliament for the manner in which he acts. Should he lose the confidence of the electorate, he cannot be obliged to resign and he can only be removed for one of the reasons set out in sections 96 to 99 of the Constitution.” The Chief Justice also considered the question as to whether an MP's customary obligation to obey the commands of the island as expressed by the ''Falekaupule'', overrides the MP’s duties to Parliament. The ''Falekaupule'' asserted that the customary process known as ''falaesea'' (to banishment a person who defied the customary authority of the ''Falekaupule'') provided the legal authority to order Metia to resign as a member of parliament. The Chief Justice stated that “ the fifth principle of the Preamble is to have any real meaning, it must apply to this case. The Constitution is law for the whole of Tuvalu. It clearly and properly acknowledges the customary role of, and respect for, the falekaupule on each island but, when support for an island's custom and tradition will have a disproportionate effect on the whole country, the island's interests must be subordinated to the national interest. 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.” 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. It should be borne in mind that the supremacy given Parliament by the Constitution is over the country as a whole and must, therefore, take precedence over purely local interests if the latter are in conflict with the national interest. I am satisfied that, as it was a challenge to parliamentary supremacy, it was unreasonable and was thus a breach of the defendant's right to procedural fairness. Similarly, the order of falaesea, although a part of the customary practices of Nukufetau, was so extremely disproportionate to the actions of the Falekaupule in similar previous cases as to be unfair.”


Ability to restrict the exercise of freedoms protected by the Constitution

''Teonea v. Pule o Kaupule of Nanumaga'' is a case that raised issues in relation to the balancing the freedoms of religion, expression and association that are set out in the
Constitution of Tuvalu The Constitution of Tuvalu states that it is “the supreme law of Tuvalu” and that “all other laws shall be interpreted and applied subject to this Constitution”; it sets out the Principles of the Bill of Rights and the Protection of the ...
against the values of Tuvaluan stability and culture that are also referred to in the Constitution. The dispute arose in July 2003 when the ''Falekaupule'' of
Nanumaga Nanumanga or Nanumaga is a reef island and a district of the Oceanian island nation of Tuvalu. It has a surface area of about 3 km² with a population of 491 (2017 Census). History On 9 May 1824 a French government expedition under Captain ...
passed a resolution that had the effect of banning the
Brethren Church The Brethren Church is an Anabaptist Christian denomination with roots in and one of several groups that trace its origins back to the Schwarzenau Brethren of Germany. Background The Brethren church tradition traces its roots back over 300 ...
from seeking converts in Nanumaga. The ''Falekaupule'' had decided that the preaching of the Brethren Church was causing division in the Nanumaga community. The decision of Ward CJ balanced the freedoms of religion, expression and association against the values of Tuvaluan stability and culture, with the Chief Justice accepting the evidence of the unrest and tension on Nanumaga. The decision of the Chief Justice was to refuse to grant the declaration sought by Mase Teonea – that the resolution was unlawful as it was contrary to the Constitution. In the
Court of Appeal of Tuvalu The Court of Appeal of Tuvalu is established by sections 134 & 135 of the Constitution of Tuvalu to hear appeals from decisions of the High Court of Tuvalu and to determine the Law of Tuvalu. The administration of the court is set out in the Supe ...
the majority judgments of Fisher and Paterson JJA allowed the appeal, so that the judgment of the Chief Justice was set aside. The Court of Appeal made the declaration that the resolution of the ''Falekaupule'' of 4 July 2003 was contrary to the Constitution. Tomkins JA provided a minority opinion in which he accepted the decision of the Chief Justice and would have dismissed the appeal. The approach to the constitutional questions that the Court of Appeal should take was described by Paterson JA who stated: :“ is my view that it is for the Court to determine whether the circumstances are such that it is necessary to regulate or place some restriction on the exercise of the rights at issue in this case. The balancing act requires a consideration of the importance of the freedoms in question and whether it is necessary to regulate or place some restrictions on the exercise of those freedoms if the exercise: : may be divisive, unsettling or offensive to the people; or : may directly threaten Tuvaluan values or culture. :Section 29(5) of the Constitution makes it clear that a restriction may be lawful even if it restricts religious freedom, if the exercise of the rights would lead to the results specified in section 29(4). This provision is subject to sections 12 and 15 which provides that any restriction must be reasonably justifiable in a democratic society that has a proper respect for human rights and dignity when considered in the light of the circumstances existing at the time.”


References

{{reflist, 2 Politics of Tuvalu