Development of the Constitution
Work on the Constitution was first started by village committees in the 1990s. The General Fono declared 1995 as the "Year of the Constitution" and constitutional workshops were held in the villages. As a result of these workshops, in 1996 the General Fono's Special Constitutional Committee produced a draft Constitution of Tokelau, now referred to as the "First Glimpse". Much of the First Glimpse, such as the Preamble, has been incorporated into the present Constitution.
The Constitution is made up of the important rules for the government of Tokelau. It relates mainly to the national government of Tokelau. It is built on the 3 villages.
The Constitution is a special law. It is like the trunk of the Breadfruit tree. It has strong roots in the Villages of Tokelau and contains all the essential elements for the government of Tokelau as a nation.
The laws of the General Fono are ordinary laws. They are like the branches of the Breadfruit tree. They depend on the trunk. The leaves and breadfruit are like the decisions made under the laws. The trunk is firm but the branches and leaves may change or be changed.
The Constitution is important for Tokelau's self-government - it is separate from the question whether Tokelau should self-determine. The Constitution is a matter for Tokelau and can be chaged at any time according to the provisions set out in it.
The Constitution was written by Tokelau. This is different to the Cook Islands and Niue whose Constitutions were written by New Zealand.
Acceptance of the treaty package will require a few changes to the Tokelau Constitution to reflect the new relationship with New Zealand and in particular the continued use of New Zealand courts by Tokelau.
The Articles of the Constitution
The Preamble records the key values of Tokelau such as the importance of God, co-operation and interdependence, free decision-making, culture and customs, family, and good standards of living.
The principles set out in the Preamble have an important role in interpreting the Constitution and other laws.
Olohega is mentioned in the Preamble as part of the historical and cultural story of Tokelau. The exercise of self-determination by Tokelau has no effect on the status of Olohega. Olohega is part of the USA (Treaty of Tokehega). That situation is unlikely to change. It could not change except with the agreement of the USA. The owners of Olohega are those identified as the owners by the law of American Samoa. The rights of the owners in respect of land use are governed by the law of American Samoa.
Definition of Tokelau - Article 1
The definition of 'Tokelau' is territorial and could include new areas as established by international law.
Villages - Article 2
The villages are the source of all authority in Tokelau. The main law relating to the villages is the Village Incorporation Rules 1986.
The General Fono - Articles 3, 4, 5
The number of members of the General Fono is related to the population of each village.
The members are chosen by each village and serve for the duration of the Faipule's term.
The meetings of the General Fono are held at least twice a year and the dates are fixed by the Council for the Ongoing Government.
The quorum for the General Fono is at least two-thirds of the membership, including no fewer than 4 members from each village.
Decision-making is by voting by simple majority.
The General Fono is subject to its Standing Orders. The Standing Orders contain the rules for procedure.
The centre of national government is the village where the General Fono is based for the time-being. The idea of a "capital" assumes central administrative functions. The nature of Tokelau is that the villages are 3 separate administrative centres.
The executive powers of the General Fono relate to matters of national interest such as the budget, national public service, transport and telecommunications.
Treaty making will be conducted by the Council for the Ongoing Government. Treaties are effective only after a resolution of the General Fono.
Signing for Tokelau is by the Ulu of Tokelau or the 3 Faipule as the Council for the Ongoing Government decide.
The Council for the Ongoing Government of Tokelau - Article 6
The Council for the Ongoing Government is the standing committee of the General Fono. The Council members are 3 Faipule and the 3 Pulenuku. The Ulu of Tokelau is the titular head and the position is rotated between the 3 Faipule.
The duties of the Council include conducting the ongoing business of Tokelau. The Council has no law-making power. The Council reports regularly to the General Fono.
Head of State
Under the Constitution, the role of the Head of State is symbolic. State executive function is performed on a daily basis by the Ulu of Tokelau and the Council for the Ongoing Government of Tokelau.
The Head of State is the Sovereign in Right of the Realm of New Zealand. The current Head of State is Her Majesty Queen Elizabeth the Second. If Tokelau self-determines, it will be in free association with New Zealand so the Head of State will remain the same.
Law-making - Article 7
Draft rules can be introduced to the General Fono by members of the Council for the Ongoing Government.
There must be consultation with Taupulega either before introduction or following referral by the General Fono.
If urgent rules are needed they can be passed without Taupulega consultation. A Taupulega then has one month to give notice to the Council if it wishes to reject those Rules.
Courts of Tokelau - Articles 8, 9, 10, 11
The Courts are the Commissioners' Courts, the High Court and the Court of Appeal.
Court procedures are contained either in the Constitution or in General Fono Rules.
Commissioners are designated by each Taupulega according to its own process and appointed by the General Fono for a term of 3 years.
The High Court has general jurisdiction in Tokelau. The High Court can exercise its powers either in or outside Tokelau.
Sources of law - Article 12
The sources of law are the Constitution, General Fono Rules, Village Rules, the custom of Tokelau and general principles of international law.
If the Referendum result is yes, the Constitution will be the supreme law of Tokelau.
All other laws should be consistent with the Constitution. Inconsistent laws are invalid.
Public service - Article 13
The appointment of public servants is based on merit.
Public servants are employed in accordance with General Fono Rules.
Finance - Article 14
Public money is paid into the Tokelau government account.
Money can only be withdrawn from the Tokelau government account if it is authorised in the budget and if it is in accordance with a General Fono Rule.
Taxes can only be imposed through a General Fono Rule.
Land - Article 15
All land is under the control of the Taupulega unless stated in the Constitution or a General Fono Rule.
Customary land is held under the custom of the village.
Special land is land that is not customary land.
All matters relating to ownership of special land will be determined by the High Court.
Land or any interest in land cannot be transferred to a non-Tokelauan.
Land can be used for a national purpose, but only where there is agreement between that village and the Tokelau government.
Human rights - Article 16
Human rights are outlined in the Universal Declaration of Human Rights and reflected in the International Covenant on Civil and Political Rights.
The rights of individuals are exercised in the context of Tokelau village life.
The Council for the Ongoing Government considers on application any breaches of human rights.
The decision by Council is final and has the value of a High Court judgment.
Citizenship - Article 17
The citizenship of Tokelau is New Zealand citizenship.
The passports are New Zealand passports.
The present law on citizenship is continued in the draft treaty.
Amendments to the Constitution - Article 18
The Constitution is a matter for Tokelau and can be changed at any time according the provisions set out in it.
The existing rules in the Constitution will change status at the time of self-determination. The rules will become entrenched. This means that they can only be changed if all 3 Taupulega agree to the change.
Commencement and transitional matters - Article 19
The Constitution will become the supreme law of Tokelau after the repeal of the Tokelau Act 1948.
After the Constitution commences, holders of public office and public officers will continue in office as if they were appointed under the Constitution.
The High Court and Court of Appeal of New Zealand will act as the High Court and Court of Appeal of Tokelau and when exercising Tokelau jurisdiction will apply Tokelau law.
Most existing laws will continue to be in force after the commencement of the Constitution.
Overview of Treaty of Free Association
What is a Treaty?
A treaty is a contract which is governed by international law. A treaty is made in writing. A treaty is an agreement between states.
What is Free Association?
Imagine a spectrum between integration at one end and independence at the other end. Free association is a point somewhere in between. Free association usually means that a state manages its own laws and also has a special relationship with an independent state that will share its citizenship and provide economic assistance and defence.
Integration means that the territory will be merged in another state and be governed as any other district of that state.
Independence means that a state has complete authority over its affairs including citizenship.
What is the role of the Treaty of Free Association?
The Treaty of Free Association is an agreement with New Zealand that guarantees Tokelau for the future the same conditions as at present. A treaty with New Zealand would make the relationship formal and would have the support of the New Zealand Parliament. The treaty would give strength to the relationship thus giving Tokelau the advantage of security.
A treaty would make the current 3 year understanding on economic support a secure arrangement for the future. The treaty would give Tokelau greater protection against policy changes in New Zealand.
The treaty package reflects the present situation. Acceptance of the treaty package has the purpose of maintaining the present conditions with additional guarantees as to financial security and international affairs.
The treaty package makes clear in its words and supporting documents that Tokelau will remain associated with New Zealand. It will be associated with New Zealand in the Realm of New Zealand which includes the Cook Islands and Niue.
The treaty package is not for independence; there will therefore be no Tokelau citizenship. Tokelauans will continue to have New Zealand citizenship.
The treaty package requires Tokelau to take national responsibility. There will be no control from Wellington. Wellington will no longer have the power to make law for Tokelau or to control the Tokelau public service.
How will the rights of Tokelauans living overseas be affected by the treaty package?
The treaty package will have no affect on Tokelauans living overseas. Their rights are governed by the countries in which they live.
Tokelau immigration laws provide all Tokelauans with an unconditional right of entry whatever their citizenship.
Land rights in Tokelau, including those of Tokelauans living overseas, are unaffected by the self-determination process.
The Articles of the Treaty of Free Association
The Preamble records the history of the special relationship between New Zealand and Tokelau. It also recalls the principles of partnership and shared values for the continuous development of this relationship.
Relationship of Free Association - Article 1
The key features of the free association will be - partnership, cooperation, shared values, respect for human rights, and respect for the principles of the United Nations.
Culture and heritage - Article 2
New Zealand undertakes to protect Tokelau culture both in New Zealand and Tokelau.
Citizenship - Article 3
New Zealand citizenship will continue as at present.
Economic support and infrastructure development support - Article 4
The current system for economic and infrastructure development support is guaranteed for the future.
Administrative, technical and specialist support - Article 5
Tokelau will deliver services in Tokelau and can request New Zealand assistance for administrative, technical and specialist support.
Emergency and disaster relief - Article 6
New Zealand will assist Tokelau in coping with emergencies and natural disasters. It will also include Tokelau in its disaster relief and mitigation schemes in the Pacific.
Defence, security and maritime surveillance - Article 7
New Zealand will continue to be responsible for the defence and security of Tokelau.
New Zealand will also continue to assist Tokelau in maritime surveillance, fisheries protection, and search and rescue operations.
Tokelau International Trust Fund - Article 8
New Zealand will continue to support the Tokelau International Trust Fund and assist Tokelau to seek contributions for the Fund from states and international organisations.
It may be easier to obtain gifts for the Tokelau Trust Fund if Tokelau is no longer a colony of New Zealand.
New Zealand will continue to contribute to the Tokelau Trust Fund.
International relations - Article 9
Tokelau will conduct its own international relations and enter into treaties in its own right.
Tokelau would have greater freedom in establishing its own treaty relationships with countries in the region and would not require the assistance of New Zealand to make a treaty.
If Tokelau accepts the treaty package it will end its status as a colony and Tokelau will then be free to receive aid from foreign countries.
New Zealand will continue to assist Tokelau in the conduct of its international relations at Tokelau's request.
Consultation - Article 10
New Zealand and Tokelau will maintain close consultation.
There shall be regular meetings between New Zealand and Tokelau.
Change of status Article 11
Tokelau has the option to re-open discussions with New Zealand on the nature of the relationship if it wishes. Tokelau will be free at any time to be independent.
Supporting documents - Article 12
Supporting documents agreed from time to time between New Zealand and Tokelau provide details for implementation of the Treaty. The supporting documents can be amended at the ministerial level.
Entry into force - Article 13
The Treaty will come into force on the date that it is signed.
There is a Referendum Commission for organising a referendum and declaring the result.
There are Voting Officers for each voting place. They are well-trained and will look after each voting place and be responsible for the counting of the vote. They are not involved in any other aspect of the Referendum.
There is a national Register of Voters. This is based on the Register of 2005 and will include all persons newly qualified till July 2007. The Register of 2007 will be published on 1 August 2007 at TALO and the Taupulega Offices of each village.
The right to vote belongs to the inhabitants of Tokelau. This right was established by the General Fono. The General Fono decision is consistent with international law. Under international law, the inhabitants of a colony exercise the right to self-determination because these are the people who will be impacted most by decolonisation.
Tokelau residents do not have a right to vote in New Zealand elections. New Zealand residents do not have a right to vote in Tokelau elections or in the self-determination referendum.
The Referendum Rules 2006 made by the General Fono establish a residency requirement for voter eligibility with some exceptions in favour of invalids, students, and public servants. From the date of a voter application a Tokelauan must have been resident in Tokelau for at least 3 consecutive months in the preceding 18 months, and a non-Tokelauan must have been permanently resident for not less than the preceding 5 years. Voter registration for the November Referendum closes on 2 July 2007.
Anybody on the voter register may vote on the voting day.
The vote is written, individual and secret. The system makes it impossible to know how an individual or a village voted. The integrity of the referendum system is monitored by the United Nations.
The voters have only one proposal to consider. No alternative is presented. Voters will accept or reject the treaty package. A rejection does not mean acceptance of some other system for the future. A rejection does not mean support for the present situation, for integration, or for anything else. It is simply a rejection of this particular package.
The vote is a national vote. The votes in the 3 villages, in Apia and from residents abroad will be counted together in one place at the same time. In 2006 the result of the vote was declared within 1 hour of the close of voting.
Referendum result = acceptance
If at least 67% of the people vote for the treaty package, self-determination will be effective from a time to be agreed by the governments of Tokelau and New Zealand.
After a 'yes' vote Tokelau would need time to organise itself for the new system.
After a 'yes' vote New Zealand would need at least several months in which to pass the laws necessary to recognise the Tokelau vote and for Parliament to approve the Treaty for signing.
For both governments there are times in the political cycle when it is easier to get things done than at other times.
Tokelau also often has to take account of seasonal and transport factors.
The New Zealand Government has accepted the treaty package. It is usual government practice for successive governments to honour the undertaking made by their predecessors.
The Administrator of Tokelau is also Head of a Special Relations Unit. This is the New Zealand Ministry of Foreign Affairs Unit that deals with Tokelau and Niue. After Tokelau is decolonised, there will be no Administrator of Tokelau - just the Head of the Special Relations Unit for the New Zealand Government.
Referendum result = rejection
If the treaty package is not accepted, Tokelau will remain a colony.
New Zealand will control Tokelau government as it presently can through the New Zealand Parliament or the Governor-General.
Tokelau will not have self-determination until the people have voted in favour of a particular proposal.
Tokelau will have to vote again sometime in the future to decide its future status.
Tokelau will continue to have an Administrator.
© 2007 Malo Tokelau.
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