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Governor-General Doctor Tomasi Puapua holds the key to Tuvalu's constitutional dilemma, the country's high court has ruled. Declaring he has no powers to order besieged Prime Minister Saufatu Sopoanga to advise Puapua to convene parliament immediately, Chief Justice of Tuvalu (who's also Tonga's Chief Justice) Justice Gordon Ward did outline the constitutional options opened to the head of state.

Dr Robert Woonton (left)... receiving the Gift to the Earth award from WWF Vice-President Sara Morrison. Photo: FOTOPRESS/Dean Purcell.

"It is not for the court to tell the Governor- General how he should reach his decision, he must do that in his own deliberate judgement," Ward said in a ruling handed down by notice.

"However, I would suggest that, if his consideration of the evidence still leaves him uncertain as to what is the true support for the Prime Minister in the House, he should take the course which allows it to be determined with certainty and that must be done in Parliament. A fair and democratic government would require it to be determined as soon as possible and that would be impracticable if he was to comply with the present advice given under 116(1)."

Justice Ward is referring to the section of Tuvalu's constitution that calls on the Governor-General to convene parliament "in accordance with the advice of the cabinet."

In what Sopoanga would obviously declare as a victory for him and his minority government, Justice Ward said the prime minister is not breaching the constitution by not advising the early convening of parliament, and for not resigning even though he has lost his one seat majority in the 15-member legislature.

In arriving at this observation, Justice Ward relied heavily on a similar case in the Solomon Islands involving one-time Prime Minister Billy Hilly and the country's Governor-General.

For the same reason, even where the Governor-General is advised a majority of members oppose the government, he can only be sure that is the case if and when there is a vote in the House, and until then, he will continue to receive the advice of the cabinet as part of the government of the day.

Even if, as occurred in Hilly's case, the Prime Minister admits he does not have the support of the majority but still does not resign, there is nothing in our constitution to support the contention he has, by that, forfeited the right to advise the Governor General.

Our constitution requires the Governor- General to act in accordance with the advise of cabinet and there is no suggestion that in order to tender such advice, the cabinet has to represent a majority government. "I accept that is correct," said Ward.

He was petitioned by the unofficial leader of Tuvalu's opposition Amasone Kilei after Sopoanga, realising that one of the two new MPs elected in a by-election in May had opted to join Kilei, delayed the next sitting of parliament to November 4.

Kilei argued this was a deliberate attempt by Sopoanga to delay a no-confidence motion against his government.

While Ward said the law does not give him the powers to grant Kilei's application, the opposition MP would be comforted by the clear and elaborate constitutional directions the court ruling did give Tuvalu's Governor-General.

Ward said the sequence of events for the Governor General, therefore, should be:

• Decide in his own deliberate judgement on the evidence he has and, if he asks for it, any further information from the Prime Minister, whether it is impracticable to comply with the requirements of section 116(1) because it would be inconsistent with the aims of fair and democratic government.
• If he so decides, he will certify that decision in writing.
• If he does so certify, he may then consult with such persons or bodies he considers proper to assist his decision what is the best action to take in relation to the time of the next meeting of Parliament.
• Take any action he considers to be appropriate under section 116(1) but acting in his own deliberate judgement and not in accordance with any advice from Cabinet.
• Should he decide to take action, he must as soon as practicable, report the circumstances to Cabinet and the Speaker. In the circumstances of this case, he would not need to take any further action under section 17(4)(b).