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

by The Government of Papua New Guinea

PART III.—BASIC PRINCIPLES OF GOVERNMENT

PART III.—BASIC PRINCIPLES OF GOVERNMENT.

Division 1.—National Goals and Directive Principles

Division 1.—National Goals and Directive Principles.

25. Implementation of the National Goals and Directive Principles.

• (1) Except to the extent provided in Subsections (3) and (4), the National Goals and Directive Principles are non-justiciable.

• (2) Nevertheless, it is the duty of all governmental bodies to apply and give effect to them as far as lies within their respective powers.

• (3) Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.

• (4) Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or of any other body prescribed for the purposes of Division III.2 (leadership code), which shall take the National Goals and Directive Principles fully into account in all cases as appropriate.

Division 2.—Leadership Code

Division 2.—Leadership Code.

26. Application of Division 2.

• (1) The provisions of this Division apply to and in relation to—
  • (a) the Prime Minister, the Deputy Prime Minister and the other Ministers; and
  • (b) the Leader and Deputy Leader of the Opposition; and
  • (c) all other members of the Parliament; and
  • (d)^[VI] members of Provincial Assemblies and Local-level Governments; and
  • (e) all constitutional office-holders within the meaning of Section 221 (definitions); and
  • (f) all heads of Departments of the National Public Service; and
  • (g) all heads of or members of the boards or other controlling bodies of statutory authorities; and
  • (h) the Commissioner of Police; and
  • (i) the Commander of the Defence Force; and
  • (j) all ambassadors and other senior diplomatic and consular officials prescribed by an Organic Law or an Act of the Parliament; and
  • (k) the public trustee; and
  • (l) the personal staff of the Governor-General, the Ministers and the Leader and Deputy Leader of the Opposition; and
  • (m) executive officers of registered political parties as defined by Section 128 ("registered political party"); and
  • (n) persons holding such public offices as are declared under Subsection (3) to be offices to and in relation to which this Division applies.

• (2) This Division applies to and in relation to a person referred to in Subsection (1) not only in the office referred to in that subsection but also in any other office or position that he holds under any law by virtue of that office.

• (3)^[VII] An Organic Law or an Act of the Parliament may declare any public office (including an office in a provincial government or a local-level government body) to be an office to and in relation to which this Division applies.

• (4) In the event of doubt as to whether a person is a person to whom this Division applies, the decision of the Ombudsman Commission is final.

27. Responsibilities of office.

• (1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not—
  • (a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
  • (b) to demean his office or position; or
  • (c) to allow his public or official integrity, or his personal integrity, to be called into question; or
  • (d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

• (2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

• (3) It is the further duty of a person to whom this Division applies—
  • (a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
  • (b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

• (4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

• (5) A person to whom this Division applies who—
  • (a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
  • (b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),

• is guilty of misconduct in office.

28. Further provisions.

• (1) For the purposes of this Division, an Organic Law—
  • (a) may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and
  • (b) shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and
  • (c) shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and
  • (d) may prescribe specific acts that constitute misconduct in office; and
  • (e) may create offences (including offences by persons to whom this Division applies and offences by other persons); and
  • (f) shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and
  • (g) shall establish independent tribunals that—
    • (i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and
    • (ii)^[VIII] are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and
  • (h) may make any other provision that is necessary or convenient for attaining the objects of this Division.

• (1A)^[IX] An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that—
  • (a) there was no serious culpability on the part of a person found guilty of misconduct in office; and
  • (b) public policy and the public good do not require dismissal,

• it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

• (2)^[X] Where an independent tribunal referred to in Subsection (1)(g) makes a recommendation to the appropriate authority in accordance with that paragraph or with Subsection (1A), the appropriate authority shall act in accordance with the recommendation.

• (3)^[XI] For the purposes of Subsections (1)(g), (1A) and (2), "the appropriate authority"—
  • (a) in relation to—
    • (i) a person holding an office referred to in Section 26(1)(a), (b), (c) or (d) (application of Division 2); or
    • (ii) a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

• • means the Head of State; and

• • (b) in relation to a person holding any other office to which this Division applies—means the appropriate appointing authority.

• (4) An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him.

• (5) Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and—
  • (a) no such proceedings are a bar to any other proceedings provided for by law; and
  • (b) no other proceedings provided for by law are a bar to proceedings under that paragraph.

29. Prosecution of misconduct in office.

• (1) Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).

• (2) If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead.

30. Other authority.

Where another authority is prescribed under Section 28 (further provisions) that authority—

• (a) shall be composed of a person or persons who are declared under Section 221(1) (definitions) to be a constitutional office-holder; and
• (b) is not subject to direction or control by any person or authority.

31. Disqualifications on dismissal.

• (1) A person who has been dismissed from office under this Division for misconduct in office is not eligible—
  • (a) to election to any elective public office; or
  • (b) for appointment as Head of State or as a nominated member of the Parliament; or
  • (c)^[XII] for appointment to a provincial legislature or provincial executive (including the office of head of a provincial executive), or to a local-level government body,

• for a period of three years after the date of his dismissal.

• (2) In the event of doubt as to whether an office or position is an office or position to which Subsection (1) (a), (b) or (c) applies, the decision of the Ombudsman Commission is final.

Division 3.—Basic Rights

Division 3.—Basic Rights.

Subdivision A.—Introductory

Subdivision A.—Introductory.

32. Right to freedom.

• (1) Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

• (2) Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—
  • (a) does not injure or interfere with the rights and freedoms of others; and
  • (b) is not prohibited by law,

• and no person—
  • (c) is obliged to do anything that is not required by law; and
  • (d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

• (3) This section is not intended to reflect on the extra-legal existence, nature or effect of social, civic, family or religious obligations, or other obligations of an extra-legal nature, or to prevent such obligations being given effect to by law.

33. Other rights and freedoms, etc.

Nothing in this Division derogates the rights and freedoms of the individual under any other law and, in particular, an Organic Law or an Act of the Parliament may provide further guarantees of rights and freedoms and may further restrict the limitations that may be placed on, or on the exercise of, any right to freedom (including the limitations that may be imposed under Section 38 (general qualifications on qualified rights)).

34. Application of Division 3.

Subject to this Constitution, each provision of this Division applies, as far as may be—

• (a) as between individuals as well as between governmental bodies and individuals; and
• (b) to and in relation to corporations and associations (other than governmental bodies) in the same way as it applies to and in relation to individuals,

except where, or to the extent that, the contrary intention appears in this Constitution.

Subdivision B.—Fundamental Rights

Subdivision B.—Fundamental Rights.

35. Right to life.

• (1) No person shall be deprived of his life intentionally except—
  • (a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or
  • (b) as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law—
    • (i) for the defence of any person from violence; or
    • (ii) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
    • (iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or
    • (iv) in order to prevent him from committing an offence; or
    • (v) for the purpose of suppressing piracy or terrorism or similar acts; or
  • (c) as the result of a lawful act of war.

• (2) Nothing in Subsection (1)(b) relieves any person from any liability at law in respect of the killing of another.

36. Freedom from inhuman treatment.

• (1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

• (2) The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.

37. Protection of the law.

• (1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

• (2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

• (3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

• (4) A person charged with an offence—
  • (a)^[XIII] shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
  • (b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
  • (c) shall be given adequate time and facilities for the preparation of his defence; and
  • (d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
  • (e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
  • (f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

• (5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

• (6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.

• (7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

• (8) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

• (9) No person shall be tried for an offence for which he has been pardoned.

• (10) No person shall be compelled in the trial of an offence to be a witness against himself.

• (11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

• (12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

• (13) Nothing in Subsection (12) prevents a court or other authority from excluding from the hearing of the proceedings before it persons, other than the parties and their legal representatives, to such an extent as the court or other authority—
  • (a) is by law empowered to do and considers necessary or expedient in the interests of public welfare or in circumstances where publicity would prejudice the interests of justice, the welfare of persons under voting age or the protection of the private lives of persons concerned in the proceedings; or
  • (b) is by law empowered or required to do in the interests of defence, public safety or public order.

• (14) In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

• (15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

• (16) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.

• (17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

• (18) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

• (19) Persons under voting age who are in custody in connection with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age.

• (20) An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made, the reason for so doing shall be endorsed on the file of the offender.

• (21) Nothing in this section—
  • (a) derogates Division III.4 (principles of natural justice); or
  • (b) affects the powers and procedures of village courts.

• (22) Notwithstanding Subsection 21(b) the powers and procedures of village courts shall be exercised in accordance with the principles of natural justice.

Subdivision C.—Qualified Rights

Subdivision C.—Qualified Rights.

General.

38. General qualifications on qualified rights.

• (1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—
  • (a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—
    • (i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—
      • (A) defence; or
      • (B) public safety; or
      • (C) public order; or
      • (D) public welfare; or
      • (E) public health (including animal and plant health); or
      • (F) the protection of children and persons under disability (whether legal or practical); or
      • (G) the development of under-privileged or less advanced groups or areas; or
    • (ii) in order to protect the exercise of the rights and freedoms of others; or
  • (b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

• to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

• (2) For the purposes of Subsection (1), a law must—
  • (a) be expressed to be a law that is made for that purpose; and
  • (b) specify the right or freedom that it regulates or restricts; and
  • (c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

• (3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.

39. "Reasonably justifiable in a democratic society", etc.

• (1) The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.

• (2) A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.

• (3) For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to—
  • (a) the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and
  • (b) the Charter of the United Nations; and
  • (c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and
  • (d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and
  • (e) judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and
  • (f) previous laws, practices and judicial decisions and opinions in the country; and
  • (g) laws, practices and judicial decisions and opinions in other countries; and
  • (h) 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, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and
  • (i) declarations by the International Commission of Jurists and other similar organizations; and
  • (j) any other material that the court considers relevant.

40. Validity of emergency laws.

Nothing in this Part invalidates an emergency law as defined in Part X (emergency powers), but nevertheless so far as is consistent with their purposes and terms all such laws shall be interpreted and applied so as not to affect or derogate a right or freedom referred to in this Division to an extent that is more than is reasonably necessary to deal with the emergency concerned and matters arising out of it, but only so far as is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

41. Proscribed acts.

• (1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
  • (a) is harsh or oppressive; or
  • (b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
  • (c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

• is an unlawful act.

• (2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

• (3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

Rights of All Persons.

42. Liberty of the person.

• (1) No person shall be deprived of his personal liberty except—
  • (a) in consequence of his unfitness to plead to a criminal charge; or
  • (b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or
  • (c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or
  • (d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or
  • (e) for the purpose of bringing him before a court in execution of the order of a court; or
  • (f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or
  • (g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or
  • (h)^[XIV] in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—
    • (i) his care or treatment or the protection of the community, under an order of a court; or
    • (ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);
  • (i)^[XV] in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

• (2) A person who is arrested or detained—
  • (a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
  • (b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
  • (c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,
• and shall be informed immediately on his arrest or detention of his rights under this subsection.^[XVI]

• (3) A person who is arrested or detained—
  • (a) for the purpose of being brought before a court in the execution of an order of a court; or
  • (b) upon reasonable suspicion of his having committed, or being about to commit, an offence,

• shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connection with the offence except by order of a court or judicial officer.

• (4) The necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with Subsection (3), but exigencies of travel which in the circumstances are reasonable may, without derogating any other protection available to the person concerned, be such a ground.

• (5) Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—
  • (a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and
  • (b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

• (6) A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

• (7) Where a person to whom Subsection (6) applies is refused bail—
  • (a) the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and
  • (b) the person or his representative may apply to the Supreme Court or the National Court in a summary manner for his release.

• (8) Subject to any other law, nothing in this section applies in respect of any reasonable act of the parent or guardian of a child, or a person into whose care a child has been committed, in the course of the education, discipline or upbringing of the child.

• (9) Subject to any Constitutional Law or Act of the Parliament, nothing in this section applies in respect of a person who is in custody under the law of another country—
  • (a) while in transit through the country; or
  • (b) as permitted by or under an Act of the Parliament made for the purposes of Section 206 (visiting forces).

43. Freedom from forced labour.

• (1) No person shall be required to perform forced labour.

• (2) In Subsection (1), "forced labour" does not include—
  • (a) labour required by the sentence or order of a court; or
  • (b) labour required of a person while in lawful custody, being labour that, although not required by the sentence or order of a court, is necessary for the hygiene of, or for the maintenance of, the place in which he is in custody; or
  • (c) in the case of a person in custody for the purpose of his care, treatment, rehabilitation or welfare, labour reasonably required for that purpose; or
  • (d) labour required of a member of a disciplined force in pursuance of his duties as such a member; or
  • (e) subject to the approval of any local government body for the area in which he is required to work, labour reasonably required as part of reasonable and normal communal or other civic duties; or
  • (f) labour of a reasonable amount and kind (including in the case of compulsory military service, labour required as an alternative to such service in the case of a person who has conscientious objections to military service) that is required in the national interest by an Organic Law that complies with Section 38 (general qualifications on qualified rights).

44. Freedom from arbitrary search and entry.

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that makes reasonable provision for a search or entry—

• (i) under an order made by a court; or
• (ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or
• (iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or
• (iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or
• (v) for the purpose of inspecting or taking copies of documents relating to—
  • (A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or
  • (B) the affairs of a company in accordance with a law relating to companies; or
• (vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connection with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or

(b) that complies with Section 38 (general qualifications on qualified rights).

45. Freedom of conscience, thought and religion.

• (1) Every person has the right to freedom of conscience, thought and religion and the practice of his religion and beliefs, including freedom to manifest and propagate his religion and beliefs in such a way as not to interfere with the freedom of others, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).

• (2) No person shall be compelled to receive religious instruction or to take part in a religious ceremony or observance, but this does not apply to the giving of religious instruction to a child with the consent of his parent or guardian or to the inclusion in a course of study of secular instruction concerning any religion or belief.

• (3) No person is entitled to intervene unsolicited into the religious affairs of a person of a different belief, or to attempt to force his or any religion (or irreligion) on another, by harassment or otherwise.

• (4) No person may be compelled to take an oath that is contrary to his religion or belief, or to take an oath in a manner or form that is contrary to his religion or belief.

• (5) A reference in this section to religion includes a reference to the traditional religious beliefs and customs of the peoples of Papua New Guinea.

46. Freedom of expression.

• (1) Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law—
  • (a) that imposes reasonable restrictions on public office-holders; or
  • (b) that imposes restrictions on non-citizens; or
  • (c) that complies with Section 38 (general qualifications on qualified rights).

• (2) In Subsection (1), "freedom of expression and publication" includes—
  • (a) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and
  • (b) freedom of the press and other mass communications media.

• (3) Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations—
  • (a) for the communication of ideas and information; and
  • (b) to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,

• and generally for enabling and encouraging freedom of expression.

47. Freedom of assembly and association.

Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, except to the extent that the exercise of that right is regulated or restricted by a law—

• • (a) that makes reasonable provision in respect of the registration of all or any associations; or

• • (b) that imposes reasonable restrictions on public office-holders; or

• • (c) that imposes restrictions on non-citizens; or

• • (d) that complies with Section 38 (general qualifications on qualified rights).

48. Freedom of employment.

• (1) Every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated or restricted voluntarily or by a law that complies with Section 38 (general qualifications on qualified rights), or a law that imposes restrictions on non-citizens.

• (2) Subsection (1) does not prohibit reasonable action or provision for the encouragement of persons to join industrial organizations or for requiring membership of an industrial organization for any purpose.

49. Right to privacy.

Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).

Special Rights of Citizens.

50. Right to vote and stand for public office.

• (1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
  • (a) is under sentence of death or imprisonment for a period of more than nine months; or
  • (b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,

• has the right, and shall be given a reasonable opportunity—
  • (c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
  • (d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
  • (e) to hold public office and to exercise public functions.

• (2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

51. Right to freedom of information.

• (1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of—
  • (a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization); or
  • (b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities as are prescribed by Organic Law or Act of the Parliament; or
  • (c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or
  • (d) parliamentary papers the subject of parliamentary privilege; or
  • (e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to completion; or
  • (f) papers relating to lawful official activities for investigation and prosecution of crime; or
  • (g) the prevention, investigation and prosecution of crime; or
  • (h) the maintenance of personal privacy and security of the person; or
  • (i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for the regulation or supervision of financial institutions; or
  • (j) geological or geophysical information and data concerning wells and ore bodies.

• (2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.

• (3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.

• (4) This section does not authorize—
  • (a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or
  • (b) withholding information from the Parliament.

52. Right to freedom of movement.

• (1) Subject to Subsection (3), no citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country, except in consequence of a law that provides for deprivation of personal liberty in accordance with Section 42 (liberty of the person).

• (2) No citizen shall be expelled or deported from the country except by virtue of an order of a court made under a law in respect of the extradition of offenders, or alleged offenders, against the law of some other place.

• (3) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the exercise of the right referred to in Subsection (1), and in particular may regulate or restrict the freedom of movement of persons convicted of offences and of members of a disciplined force.

53. Protection from unjust deprivation of property.

• (1) Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—
  • (a) the property is required for—
    • (i) a public purpose; or
    • (ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind,

• that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and
  • (b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.

• (2) Subject to this section, just compensation must be made on just terms by the expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of that interest by the Parliament, as well as to the person affected.

• (3) For the purposes of Subsection (2), compensation shall not be deemed not to be just and on just terms solely by reason of a fair provision for deferred payment, payment by instalments or compensation otherwise than in cash.

• (4) In this section, a reference to the taking of possession of property, or the acquisition of an interest in or right over property, includes a reference to—
  • (a) the forfeiture; or
  • (b) the extinction or determination (otherwise than by way of a reasonable provision for the limitation of actions or a reasonable law in the nature of prescription or adverse possession),

• of any right or interest in property.

• (5) Nothing in the preceding provisions of this section prevents—
  • (a) the taking of possession of property, or the acquisition of an interest in or right over property, that is authorized by any other provision of this Constitution; or
  • (b) any taking of possession or acquisition—
    • (i) in consequence of an offence or attempted offence against, or a breach or attempted breach of, or other failure to comply with a law; or
    • (ii) in satisfaction of a debt or civil obligation; or
    • (iii) subject to Subsection (6), where the property is or may be required as evidence in proceedings or possible proceedings before a court or tribunal,

• • in accordance with a law that is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind; or
  • (c) any taking of possession or acquisition that was an incident of the grant or acceptance of, or of any interest in or right over, that property or any other property by the holder or any of his predecessors in title; or
  • (d) any taking of possession or acquisition that is in accordance with custom; or
  • (e) any taking of possession or acquisition of ownerless or abandoned property (other than customary land); or
  • (f) any restriction on the use of or on dealing with property or any interest in or right over any property that is reasonably necessary for the preservation of the environment or of the national cultural inheritance.

• (6) Subsection (5)(b)(iii) does not authorize the retention of any property after the end of the period for which its retention is reasonably required for the purpose referred to in that paragraph.

• (7) Nothing in the preceding provisions of this section applies to or in relation to the property of any person who is not a citizen and the power to compulsorily take possession of, or to acquire an interest in, or right over, the property of any such person shall be as provided for by an Act of the Parliament.

54. Special provision in relation to certain lands.

Nothing in Section 37 (protection of the law) or 53 (protection from unjust deprivation of property) invalidates a law that is reasonably justifiable in a democratic society that has a proper regard for human rights and that provides—

• (a) for the recognition of the claimed title of Papua New Guinea to land where—
  • (i) there is a genuine dispute as to whether the land was acquired validly or at all from the customary owners before Independence Day; and
  • (ii) if the land were acquired compulsorily the acquisition would comply with Section 53(1) (protection from unjust deprivation of property); or
• (b) for the settlement by extra-judicial means of disputes as to the ownership of customary land that appear not to be capable of being reasonably settled in practice by judicial means; or
• (c) for the prohibition or regulation of the holding of certain interests in, or in relation to, some or all land by non-citizens.

55. Equality of citizens.

• (1) Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.

• (2) Subsection (1) does not prevent the making of laws for the special benefit, welfare, protection or advancement of females, children and young persons, members of underprivileged or less advanced groups or residents of less advanced areas.

• (3) Subsection (1) does not affect the operation of a pre-Independence law.

56. Other rights and privileges of citizens.

• (1) Only citizens may—
  • (a) vote in elections for, or hold, elective public offices; or
  • (b) acquire freehold land.

• (2) An Act of the Parliament may—
  • (a) define the offices that are to be regarded as elective public offices; and
  • (b) define the forms of ownership that are to be regarded as freehold; and
  • (c) define the corporations that are to be regarded as citizens,

• for the purposes of Subsection (1).

• (3) An Act of the Parliament may make further provision for rights and privileges to be reserved for citizens.

Subdivision D.—Enforcement

Subdivision D.—Enforcement.

57. Enforcement of guaranteed rights and freedoms.

• (1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

• (2) For the purposes of this section—
  • (a) the Law Officers of Papua New Guinea; and
  • (b) any other persons prescribed for the purpose by an Act of the Parliament; and
  • (c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

• have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

• (3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

• (4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

• (5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

• (6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.

58. Compensation.

• (1) This section is in addition to, and not in derogation of, Section 57 (enforcement of guaranteed rights and freedoms).

• (2) A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

• (3) Subject to Subsections (4) and (5), damages may be a awarded against any person who committed, or was responsible for, the infringement.

• (4) Where the infringement was committed by a governmental body, damages may be awarded either—
  • (a) subject to Subsection (5), against a person referred to in Subsection (3); or
  • (b) against the governmental body to which any such person was responsible,

• or against both, in which last case the court may apportion the damages between them.

• (5) Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if—
  • (a) the action was an action made unlawful only by Section 41(1) (proscribed acts); and
  • (b) the action taken was genuinely believed by that person to be required by law,

• but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.

Division 4.—Principles of Natural Justice

Division 4.—Principles of Natural Justice.

59. Principles of natural justice.

• (1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

• (2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

60. Development of principles.

In the development of the rules of the underlying law in accordance with Schedule 2 (adoption, etc., of certain laws) particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organization.

61. Basic rights and freedoms.

For the avoidance of doubt, it is hereby declared that nothing in the preceding provisions of this Division derogates any of the rights and freedoms provided for by Division 3 (basic rights).

62. Decisions in "deliberate judgement".

• (1) Where a law provides or allows for an act to be done in the "deliberate judgement" of a person, body or authority, the principles of natural justice apply only to the extent that the exercise of judgement must not be biassed, arbitrary or capricious.

• (2) Except—
  • (a) to the extent provided for by Subsection (1); and
  • (b) in accordance with Section 155(5) (the National Judicial System); and
  • (c) as provided by a Constitutional Law or an Act of the Parliament,

• an act to which Subsection (1) applies is, to the extent to which it is done in the deliberate judgement of the person concerned, non-justiciable.

Division 5.—Basic Social Obligations

Division 5.—Basic Social Obligations.

63. Enforcement of the Basic Social Obligations.

• (1) Except to the extent provided in Subsections (3) and (4), the Basic Social Obligations are non-justiciable.

• (2) Nevertheless, it is the duty of all governmental bodies to encourage compliance with them as far as lies within their respective powers.

• (3) Where any law, or any power conferred or duty imposed by any law (whether the power or duty be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised, complied with or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to enforce or encourage compliance with the Basic Social Obligations, or at least not to derogate them, it is to be understood, applied, exercised, complied with or enforced in that way.

• (4) Subsection (1) does not apply in the exercise of the jurisdiction of the Ombudsman Commission or other body prescribed for the purposes of Division III.2 (leadership code), which shall take the Basic Social Obligations fully into account in all cases as appropriate.

Notes to amendments

VI. ↑ 

• Section 26(1)(d) was repealed and replaced by Constitutional Amendment No. 3—Provincial Government (Consequential Amendments);
• Section 26(1)(d) was repealed and replaced by Constitutional Amendment No.12—Leadership Code;
• Section 26(1)(d) was repealed and replaced by Constitutional Amendment No. 16—Provincial Governments and Local-level Governments.

VII. ↑ 

• Section 26(3) was repealed and replaced by Constitutional Amendment No. 3—Provincial Government (Consequential Amendments);
• Section 26(3) was repealed and replaced by Constitutional Amendment No. 16—Provincial Governments and Local-level Governments.

VIII. ↑  Section 28(1)(g)(ii) was repealed and replaced by Constitutional Amendment No 4.—Leadership Code.

IX. ↑  Section 28(1A) was added by Constitutional Amendment No 4.—Leadership Code.

X. ↑  Section 28(2) was repealed and replaced by Constitutional Amendment No 4.—Leadership Code.

XI. ↑  Section 28(3) was repealed and replaced by Constitutional Amendment No 4.—Leadership Code.

XII. ↑ 

• Section 31(1)(c) was repealed and replaced by Constitutional Amendment No. 3—Provincial Government (Consequential Amendments);
• Section 31(1)(c) was amended by Constitutional Amendment No. 16—Provincial Governments and Local-level Governments.

XIII. ↑  Section 37(4)(a) was amended by Constitutional Amendment No. 13—Protection of the Law.

XIV. ↑  Section 42(1)(h) repealed and replaced by Constitutional Amendment No.11—Liberty of the Person.

XV. ↑  Section 42(1)(i) added by Constitutional Amendment No.11—Liberty of the Person.

XVI. ↑  Section 42(2) amended by Constitutional Amendment No.11—Liberty of the Person.

References

• full PNG constitutional text; from Pacific Law Library.