Constitution of the Independent State of Papua New Guinea/Part II

by The Government of Papua New Guinea

PART II.—THE NATIONAL LEGAL SYSTEM

PART II.—THE NATIONAL LEGAL SYSTEM.

Division 1.—The Laws of Papua New Guinea

Division 1.—The Laws of Papua New Guinea.

9. The laws.

The laws of Papua New Guinea consist of—

• (a) this Constitution; and

• (b) the Organic Laws; and

• (c) the Acts of the Parliament; and

• (d) Emergency Regulations; and

• (da)^[1] the provincial laws; and

• (e) laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and

• (f) the underlying law,

and none other.

10. Construction of written laws.

All written laws (other than this Constitution) shall be read and construed subject to—

• (a) in any case—this Constitution; and

• (b) in the case of Acts of the Parliament—any relevant Organic Laws; and

• (c) in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.

Division 2.—Constitutional Laws

Division 2.—Constitutional Laws.

Subdivision A.—Supreme Law

Subdivision A.—Supreme Law.

11. Constitution, etc., as Supreme Law.

• (1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

• (2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

12. Organic Laws.

• (1) For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is—
  • (a) for or in respect of a matter provision for which by way of an Organic Law is expressly authorized by this Constitution; and
  • (b) not inconsistent with this Constitution; and
  • (c) expressed to be an Organic Law.

• (2) An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.

• (3) Nothing in this section prevents an Organic Law from—
  • (a) making any provision that might be made by an Act of the Parliament; or
  • (b) requiring any provision to be made by an Act of the Parliament that might otherwise be so made,

but any such provision may be altered by the same majority that is required for any other Act of the Parliament.

Subdivision B.—Constitutional Alteration and Organic Laws

Subdivision B.—Constitutional Alteration and Organic Laws.

13. Alterations of the Constitution.

This Constitution may be altered only by law made by the Parliament that—

• (a) is expressed to be a law to alter this Constitution; and

• (b) is made and certified in accordance with Section 14 (making of alterations to the Constitution and Organic Laws).

14. Making of alterations to the Constitution and Organic Laws.

• (1) Subject to Sections 12(3) (Organic Laws) and 15 (urgent alterations), a proposed law to alter this Constitution, or a proposed Organic Law, must be supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with Section 17 ("prescribed majority of votes") expressed on at least two occasions after opportunity for debate on the merits.

• (2) Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been—
  • (a) during different meetings of the Parliament; and
  • (b) separated in time by at least two months,

and the proposed law must be published by the Speaker in full in the National Gazette, and circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament not less than one month before it is formally introduced into the Parliament.

• (3) Amendments to a proposed law to amend this Constitution or a proposed Organic Law shall not be moved unless they have been circulated to members of the Parliament before the end of the meeting of the Parliament at which the first opportunity for debate referred to in Subsection (1) occurs.

• (4) Subject to Subsection (6), in his certificate given under Section 110 (certification as to making of laws), the Speaker must certify that the requirements of Subsections (1), (2) and (3) or Section 15 (urgent alterations), as the case may be, have been complied with.

• (5) The certificate referred to in Subsection (4) shall state—
  • (a) the date on which each vote was taken; and
  • (b) in relation to each vote—
    • (i) the number of seats in the Parliament at the time; and
    • (ii) the respective numbers of members of the Parliament voting for and against the proposal, and where the requirements of Subsection (2) were waived under Section 15 (urgent alterations) for and against the motion for the waiver,

and is, in the absence of proof to the contrary, conclusive evidence of the matter so stated.

• (6) Unless the Parliament decides otherwise in any particular case, Subsection (1) does not apply where the Speaker, after consultation with the Chief Justice or a Judge nominated by the Chief Justice for the purpose, certifies that the proposed law—
  • (a) does not affect the substance of any provision to be altered by it; or
  • (b) is designed to correct a self-evident error or omission; or
  • (c) is merely incidental to or consequential on some other alteration of this Constitution or of any other law,

and such a law may be made in the same way as Acts of the Parliament.

• (7) The Supreme Court may, on the application of any person made within four weeks after the date of a certificate under Subsection (6) or such further time as a Judge, on application made within that period, considers reasonable in the particular circumstances, disallow the certificate, but otherwise the certificate is conclusive.

15. Urgent alterations.

• (1) The provisions of this section cease to have effect at the first moment of the fourth anniversary of Independence Day.

• (2) Subject to Subsection (5), the requirements of Section 14(2) (making of alterations to the Constitution and Organic Laws) may be waived, on the ground of urgency, by the Parliament by a division in accordance with the Standing Orders of the Parliament by a two-thirds absolute majority vote.

• (3) The requirements of Section 14(2) (making of alterations to the Constitution and Organic Laws) shall not be waived under Subsection (2) unless—
  • (a) at least four days' notice of the intention in accordance with the Standing Orders of the Parliament to invoke Subsection (2) has been given; and
  • (b) the proposed law has been circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament and published in full by the Speaker in the National Gazette at least four days before the motion to invoke Subsection (2) is moved; and
  • (c) the opportunities for debate referred to in Section 14(1) (making of alterations to the Constitution and Organic Laws) have been separated in time by at least two weeks, but not necessarily during different meetings of the Parliament.

• (4) Amendments to a proposed law to amend this Constitution or a proposed Organic Law to which this section applies shall not be moved unless they have been circulated to members of the Parliament before the end of the first debate on the matter.

• (5) This section does not apply to proposed laws to alter the following provisions of this Constitution, or Organic Laws made for the purposes of any such provision:—
  • (a) this section;
  • (b) the Preamble;
  • (c) Division II.2. (Constitutional Laws);
  • (d) Division III.1. (National Goals and Directive Principles);
  • (e) Division III.2. (leadership code);
  • (f) Division III.3. (basic rights);
  • (g) Division III.5. (basic social obligations);
  • (h) Part IV. (citizenship);
  • (i) Division VI.2. (the National Parliament);
  • (j) Division VI.3. (special instances of the legislative powers);
  • (k) Division VI.5. (the administration of justice);
  • (ka)^[2] Part VIA. (provincial government and local level government);
  • (l) Division VII.2. (the Public Services Commission);
  • (m) Division VII.4. (special provisions in relation to the Police Force);
  • (n) Division VII.5. (special provisions in relation to the Defence Force);
  • (o) Part VIII. (supervision and control);
  • (p) Part IX. (constitutional office-holders and constitutional institutions);
  • (q) Part X. (emergency powers).

16. Indirect alterations.

• (1) No Constitutional Law takes effect so as to affect the operation of any provision of such a law in force immediately before the commencement of the first-mentioned law unless it was made in the manner and form required for the alteration of that provision.

• (2) For the avoidance of doubt, it is hereby declared that Subsection (1) extends to Schedule 1 (Rules for Shortening and Interpretation of the Constitutional Laws) in its application to any provision of this Constitution.

17. "Prescribed majority of votes".

• (1) Subject to this section, in relation to a proposed law to alter any provision of this Constitution the prescribed majority of votes for the purposes of Section 14 (making of alterations to the Constitution and Organic Laws) is the majority of votes prescribed by this Constitution in relation to that provision, or if no majority is prescribed a two-thirds absolute majority vote.

• (2) For the purposes of Subsection (1) the prescribed majority of votes for this subsection, Sections 3, 6, 8, 20, 21, 23, 24, 26 to 31 (inclusive), 63, 68, 69, 73, 77 to 98 (inclusive), 101, 103, 104, 110, 117, 138, 139, 150, 156, 165, 167, 171, 184 to 187 (inclusive), 206, 248 to 252 (inclusive), 264 to 268 (inclusive), Sch.1.21, Sch.2.1 to Sch.2.14 (inclusive), Schedules 3, 4 and 5 is an absolute majority.

• (3) For the purposes of Subsection (1) the prescribed majority of votes for this subsection, Sections 35, 36, 50, 57, 105, 106, 109, 113, 125, 126, 155, 157, 160, 163, 217, 235, 239, 243, 244, 245 and 269 is a three-quarters absolute majority.

• (4) Subject to this section, for the purpose of a proposed law to add a new provision to this Constitution the prescribed majority of votes is the same as the prescribed majority of votes that would be required to alter that provision if it was already enacted.

• (5) Subject to Section 12(3) (Organic Laws), in relation to a proposed Organic Law the prescribed majority of votes is—
  • (a) in the case of a proposed Organic Law to alter a provision of an Organic Law—the same as the majority that would be required for the making of the provision proposed to be altered; and
  • (b) in any other case—
    • (i) the majority of votes (not being less than an absolute majority) prescribed by this Constitution for the making of the Organic Law; and
    • (ii) if no majority is prescribed, a two-thirds absolute majority.

• (6) Where, by virtue of the operation of the preceding provisions of this section, there are different prescribed majorities in relation to different provisions of a proposed law, the prescribed majority of votes in relation to the law as a whole is the greatest of those majorities.

• (7) Nothing in this section prevents different majorities being prescribed in respect of different aspects or subject-matters of a provision.

• (8) No Organic Law may require a majority of votes for the alteration of a provision of an Organic Law greater than that by which the first-mentioned law was made.

• (9) Notwithstanding anything in this section, until 16 September 1980—
  • (a) for the purpose of a proposed law to add a new provision to this Constitution, the prescribed majority of votes is an absolute majority; and
  • (b) for the purpose of making an Organic Law for which there was provision in this Constitution when adopted the prescribed majority of votes is an absolute majority.

Subdivision C.—Constitutional Interpretation

Subdivision C.—Constitutional Interpretation.

18. Original interpretative jurisdiction of the Supreme Court.

• (1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

• (2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

19. Special references to the Supreme Court.

• (1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

• (2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.

• (3) The following authorities only are entitled to make application under Subsection (1):—
  • (a) the Parliament; and
  • (b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and
  • (c) the Law Officers of Papua New Guinea; and
  • (d) the Law Reform Commission; and
  • (e) the Ombudsman Commission; and
  • (ea)^[3] a Provincial Assembly or a Local-level Government; and
  • (eb)^[4] a provincial executive; and
  • (ec)^[5] a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and
  • (f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

• (4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—
  • (a) the form and contents of questions to be decided by the Court; and
  • (b) the provision of counsel adequate to enable full argument before the Court of any question; and
  • (c) cases and circumstances in which the Court may decline to give an opinion.

• (5) In this section, "proposed law" means a law that has been formally placed before the relevant law-making body.

Division 3.—Adoption, Reception and Development of Certain Laws

Division 3.—Adoption, Reception and Development of Certain Laws.

20. Underlying law and pre-Independence statutes.

• (1) An Act of Parliament shall—
  • (a) declare the underlying law of Papua New Guinea; and
  • (b) provide for the development of the underlying law of Papua New Guinea.

• (2) Until such time as an Act of Parliament provides otherwise—
  • (a) the underlying law of Papua New Guinea shall be as prescribed in Schedule 2 (adoption, etc., of certain laws); and
  • (b) the manner of development of the underlying law shall be as prescribed by Schedule 2 (adoption, etc., of certain laws).

• (3) Certain pre-Independence statutes are adopted and shall be adopted, as Acts of Parliament and subordinate enactments of Papua New Guinea, as prescribed by Schedule 2 (adoption, etc., of certain laws).

21. Purpose of Schedule 2.

• (1) The purpose of Schedule 2 (adoption, etc., of certain laws) and of the Act of the Parliament referred to in Section 20 (underlying law and pre-Independence statutes) is to assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea.

• (2) For the purpose set out in Subsection (1), a Law Reform Commission shall be established in accordance with Schedule 2 (adoption, etc., of certain laws), and certain special responsibilities are imposed by that Schedule on the National Judicial System (and in particular on the Supreme Court and the National Court) and on the Law Reform Commission.

Division 4.—General

Division 4.—General.

22. Enforcement of the Constitution.

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.

23. Sanctions.

• (1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—
  • (a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or
  • (b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

• or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

• (2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

• (3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

24. Use of certain materials as aids to interpretation.

• (1) The official records of debates and of votes and proceedings—
  • (a) in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and
  • (b) in the Constituent Assembly on the draft of this Constitution,

• together with that report and any other documents or papers tabled for the purposes of or in connection with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.

• (2) An Act of the Parliament may make provision for the manner of proof of the records and documents referred to in Subsection (1).

• (3) In Subsection (1), "the report of the Constitutional Planning Committee" means the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974.

Notes to Amendments

footnotes to amendments:

1↑ 

• Section 9(da) was inserted by Constitutional Amendment No. 1—Provincial Government.

2↑ 

• Section 15(ka) inserted by Constitutional Amendment No. 3—Provincial Government (Consequential Amendments).

3↑ 

• Section 19(3)(ea) was inserted by Constitutional Amendment No. 3—Provincial Government (Consequential Amendments);
• Section 19(3)(ea) was repealed and replaced by Constitutional Amendment No. 16—Provincial Governments and Local-level Governments.

4↑ 

• Section 19(3)(eb) was inserted by Constitutional Amendment No. 3—Provincial Government (Consequential Amendments).

5↑ 

• Section 19(3)(ec) was inserted by Constitutional Amendment No. 3—Provincial Government (Consequential Amendments);
• Section 19(3)(ec) was repealed and replaced by Constitutional Amendment No. 16—Provincial Governments and Local-level Governments.

References

• full PNG constitutional text; from Pacific Law Library.