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

by The Government of Papua New Guinea

PART VI.—THE NATIONAL GOVERNMENT

PART VI.—THE NATIONAL GOVERNMENT.

Division 1.—General Principles

Division 1.—General Principles.

99. Structure of Government.

• (1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.

• (2) The National Government consists of three principal arms, namely:—
  • (a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and
  • (b) the National Executive; and
  • (c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.

• (3) In principle, the respective powers and functions of the three arms shall be kept separate from each other.

• (4) Subsection (2) is descriptive only and is non-justiciable.

Division 2.—The National Parliament

Division 2.—The National Parliament.

Subdivision A.—The Legislative Power

Subdivision A.—The Legislative Power.

100. Exercise of the legislative power.

• (1) Subject to this Constitution, the legislative power of the People is vested in the National Parliament.

• (2) Subsection (1) does not prevent a law from conferring on an authority other than the Parliament legislative powers or functions (including, if the law so provides, a further power or further powers of delegation and subdelegation).

• (3) Nothing in any Constitutional Law enables or may enable the Parliament to transfer permanently, or divest itself of, legislative power.

Subdivision B.—Composition of the National Parliament

Subdivision B.—Composition of the National Parliament.

101. Membership.

• (1) Subject to this section, the Parliament is a single-chamber legislature, consisting of—
  • (a) a number of members elected from single-member open electorates; and
  • (b) a number of members elected from single-member provincial electorates; and
  • (c) not more than three nominated members, appointed and holding office in accordance with Section 102 (nominated members).

• (2) An Organic Law shall make provision for the number of open and provincial electorates.

• (3) No member may represent two or more electorates at the same time.

• (4) The precise number of open electorates and of provincial electorates and their boundaries shall be determined from time to time in accordance with Section 125 (electorates).

• (5) An alteration to the number of electorates or to the boundaries of an electorate takes effect for the purposes of the next general election and of succeeding elections.

102. Nominated members.

The Parliament may, from time to time, by a two-thirds absolute majority vote, appoint a person (other than a member) to be a nominated member of the Parliament.

103. Qualifications for and disqualifications from membership.

• (1) A member of the Parliament must be not less than 25 years of age.

• (2)^[XVIII] A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.

• (3) A person is not qualified to be, or to remain, a member of the Parliament if—
  • (a) he is not entitled to vote in elections to the Parliament; or
  • (b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or
  • (c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
  • (d) he is otherwise disqualified under this Constitution.

• (4) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—
  • (a) the end of any statutory period allowed for appeals against the conviction or sentence; or
  • (b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.

• (5) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.

• (6) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.

• (7) In this section—

"appeal" includes any form of judicial appeal or judicial review;

"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.

104. Normal term of office.

• (1) An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.

• (2) The seat of a member of the Parliament becomes vacant—
  • (a) if he is appointed as Governor-General; or
  • (b) upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament; or
  • (c) if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or
  • (d) if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or
  • (e) if, except as authorized by or under an Organic Law or an Act of the Parliament, he directly or indirectly takes or agrees to take any payment in respect of his services in the Parliament; or
  • (f) if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership); or
  • (g) on his death; or
  • (h) if he is dismissed from office under Division III.2 (leadership code).

• (3) For the purposes of Subsection (2)(d), a meeting of the Parliament commences when the Parliament first sits following a general election, prorogation of the Parliament or an adjournment of the Parliament otherwise than for a period of less than 12 days and ends when next the Parliament is prorogued or adjourned otherwise than for a period of less than 12 days.

105. General elections.

• (1) A general election to the Parliament shall be held—
  • (a) within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or
  • (b) if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election—
    • (i) a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or
    • (ii) the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or
  • (c) if the Parliament, by an absolute majority vote, so decides.

• (2) The Head of State, acting with, and in accordance with, the advice of the Electoral Commission, shall fix the first and last days of the period during which polling shall take place and the date by which the writs for a general election shall be returned.

• (3) In advising the Head of State under Subsection (2), and in conducting the election, the Electoral Commission shall do its best to ensure that—
  • (a) in a case to which Subsection (1)(a) applies—the date for the return of the writs is fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election; and
  • (b) in a case to which Subsection (1)(b) or (c) applies—the date for the return of the writs is fixed as soon as may reasonably be after the date of the relevant decision of the Parliament.

106. By-elections.

If the office of an elected member of the Parliament becomes vacant otherwise than by virtue of Section 104(2)(b) (normal term of office), an election shall be held to fill the vacancy unless the vacancy occurs—

• (a)^[XIX] within the period of 12 months before the fifth anniversary of the date fixed for the return of the writs for the previous general election; or

• (b) after the writ has been issued for an election under Section 105(1) (general elections) and before the day fixed for the return of that writ, writs for a general election are issued, the first-mentioned writ shall be deemed to have been revoked.

Subdivision C.—The Speaker and the Deputy Speaker

Subdivision C.—The Speaker and the Deputy Speaker.

107. Offices of Speaker and Deputy Speaker.

• (1) There shall be offices of Speaker and Deputy Speaker of the National Parliament.

• (2) The Speaker and the Deputy Speaker must be members of the Parliament, and shall be elected by the Parliament by secret ballot in accordance with the Standing Orders of the Parliament.

• (3) The Speaker and the Deputy Speaker hold office, and their offices become vacant, in accordance with the Constitutional Laws and the Standing Orders of the Parliament.

• (4)^[XX] No Minister or Parliamentary Leader of a registered political party may be the Speaker or Deputy Speaker, and if a Speaker or Deputy Speaker becomes a Minister or Parliamentary Leader of a registered political party he vacates his office as Speaker or Deputy Speaker, as the case may be.

108. Functions of the Speaker and Deputy Speaker.

• (1) The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.

• (2) In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (Acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.

• (3) A Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.

Subdivision D.—Powers, Privileges and Procedures

Subdivision D.—Powers, Privileges and Procedures.

109. General power of law-making.

• (1) Subject to this Constitution, the Parliament may make laws, having effect within and outside the country, for the peace, order and good government of Papua New Guinea and the welfare of the People.

• (2) In particular, Acts of the Parliament, not inconsistent with the Constitutional Laws, may provide for all matters that are necessary or convenient to be prescribed for carrying out and giving effect to this Constitution.

• (3) No law made by the Parliament is open to challenge in any court on the ground that—
  • (a) it is not for the peace, order or good government of Papua New Guinea or the welfare of the People; or
  • (b) it purports to have extra-territorial effect.

• (4) Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.

110. Certification as to making of laws.

• (1) Subject to Section 137(3) (Acts of Indemnity) and to any Act of the Parliament made for the purposes of Subsection (3), the Speaker shall certify under the National Seal, in accordance with the Standing Orders of the Parliament, that a law has been made by the Parliament and, subject to Subsection (2), the law comes into operation on the date of the certificate.

• (2) Nothing in Subsection (1) prevents a law—
  • (a) being expressed to come, or to be deemed to have come, into force on a date specified by, or fixed in accordance with, law; or
  • (b) being retrospective or retroactive.

• (3) An Act of the Parliament or the Standing Orders of the Parliament may make provision under which a law made by the Parliament may, at the direction of the Head of State, acting with, and in accordance with, the advice of the National Executive Council, be recommitted to the Parliament for the consideration of amendments proposed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.

111. Right to introduce bills, etc.

• (1)^[XXI] Subject to Section 210 (executive initiative) and to an Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties), any member of the Parliament is entitled to introduce into the Parliament, in accordance with, and subject to any reasonable restrictions contained in, the Standing Orders of the Parliament, a petition, question, bill, resolution or motion.

• (2) The petition, question, bill, resolution or motion shall be dealt with as provided by the Standing Orders of the Parliament.

• (3) The Standing Orders of the Parliament may make provision for priority to be given to Government business at certain times or in certain circumstances.

112. Presiding in the Parliament.

• (1) Subject to Subdivision C (the Speaker and the Deputy Speaker) and to Subsection (2), the Standing Orders of the Parliament shall make provision in respect of the chairmanship of the Parliament and of Committees of the Whole.

• (2) No Minister may preside in the Parliament or in a Committee of the Whole.

113. Quorum.

• (1) The quorum for a sitting of the Parliament is one-third of the number of seats in the Parliament at the time.

• (2) The Standing Orders of the Parliament shall make provision for the action to be taken in the event of a lack of or loss of a quorum at any time.

114. Voting in the Parliament.

• (1)^[XXII] Subject to Subsection (5) and except as otherwise provided by a Constitutional Law or the Standing Orders of the Parliament, all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting.

• (2)^[XXIII] Subject to Subsection (5), the member presiding does not have a deliberative vote except—
  • (a) on a motion of no confidence in the Prime Minister, the Ministry or a Minister, in accordance with an Organic Law referred to in Section 145 (motions of no confidence); or
  • (b) on any question which requires an affirmative vote greater than a simple majority.

• (3)^[XXIV] Subject to Subsection (5), except in a case where he has voted under Subsection (2), in the event of an equality of votes on a question, the member presiding has a casting vote, but if he fails to use it the motion shall be deemed to be withdrawn.

• (4) The Standing Orders of the Parliament shall make provision for the manner in which a vote is to be taken and recorded.

• (5)^[XXV] An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and the Strengthening of Political Parties) may restrict the voting rights of a member of the Parliament in certain circumstances.

115. Parliamentary privileges, etc.

• (1) The powers (other than legislative powers), privileges and immunities of the Parliament and of its members and committees are as prescribed by or under this section and by any other provision of this Constitution.

• (2) There shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament).

• (3) No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such, but this subsection does not affect the operation of Division III.2 (leadership code).

• (4) No member of the Parliament is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise, or has said before or submitted to the Parliament or a committee of the Parliament.

• (5) No member of the Parliament or other person is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of—
  • (a) an act done under the authority of the Parliament or under an order of the Parliament or a committee of the Parliament; or
  • (b) words spoken or used, or a document or writing made or produced, under an order or summons made or issued under the authority of the Parliament or a committee of the Parliament.

• (6) Members of the Parliament are free from arrest for civil debt during meetings of the Parliament and during the period commencing three days before, and ending three days after, a meeting when they are travelling from their respective electorates to attend the meeting or are returning to their electorates from the meeting.

• (7) No process issued by any court in the exercise of its civil jurisdiction shall be served or executed through the Speaker, an officer of the Parliament or a member of the Parliamentary Service, or within the precincts of the Parliament (as defined by or under an Act of the Parliament) while it is sitting.

• (8) The powers conferred by Section 109 (general powers of law-making) extend to the making of laws—
  • (a) declaring further powers (other than legislative powers), privileges and immunities of the Parliament, and of its members and committees; and
  • (b) providing for the manner in which powers, privileges and immunities provided for by or under this section may be exercised or upheld.

• (9) The powers and privileges conferred by or under this section do not and shall not include the power to impose or provide for the imposition of a fine, imprisonment, forfeiture of property or other penalty of a criminal nature, but this subsection does not prevent the creation of offences for the purposes of this section that are triable within the National Judicial System.

116. Disallowance of subordinate laws.

• (1) All subordinate legislative enactments made under an Act of the Parliament—
  • (a) shall be tabled in the Parliament as soon as practicable, and in any event within seven sitting days of the Parliament, after being made; and
  • (b) are subject to disallowance in whole or in part by decision of the Parliament,
• in accordance with Section Sch.1.18 (disallowance, etc.) and the Standing Orders of the Parliament.

• (2) Subject to Section Sch.1.18 (disallowance, etc.) an Act of the Parliament may make further provision as to the disallowance of a subordinate legislative enactment or part of a subordinate legislative enactment under this section, and as to the effect of such a disallowance on or in respect of rights and liabilities under or affected by the disallowed enactment or part.

• (3) Failure to comply with Subsection (1) does not invalidate a subordinate legislative enactment.

117. Treaties, etc.

• (1) In this section, unless the contrary intention appears—

• • "treaty" means an agreement between States that—
    • (a) is governed by international law; and
    • (b) creates a relationship binding at international law on Papua New Guinea,
  • whether embodied in a single instrument or in two or more related instruments and whatever may be its designation, but does not include a visiting forces agreement entered into in accordance with Section 206 (visiting forces);

• • "treaty document" means—
    • (a) the text of a treaty that it is proposed to accept or to ratify; or
    • (b) a statement of the effect of such a treaty; or
    • (c) a copy of the document by which it is intended that Papua New Guinea will express its consent to be bound by such a treaty.

• (2) Subject to Subsection (3), the consent of Papua New Guinea to be bound as a party to a treaty may be given only—
  • (a) by the Head of State, acting with, and in accordance with, the advice of the National Executive Council; or
  • (b) by a Minister authorized either generally or specifically for the purpose by the Head of State, acting with, and in accordance with, the advice of the National Executive Council; or
  • (c) otherwise in accordance with international law, usage and practice,
• and in accordance with this section.

• (3) Subject to Subsection (5), the consent of Papua New Guinea to be bound as a party to a treaty shall not be given—
  • (a) unless a treaty document relating to the treaty has been presented to the Parliament for at least ten sitting days; or
  • (b) if within ten sitting days of the Parliament after the day on which the treaty document was presented to the Parliament the Parliament, by an absolute majority vote, disapproves the giving of the consent.

• (4) The fact that the Parliament has disapproved the giving of the consent of Papua New Guinea to be bound as a party to a treaty does not prevent the re-presentation to the Parliament of a treaty document relating to the treaty, and in that event Subsection (3) once again applies.

• (5) Subsection (3) does not apply if—
  • (a) the Parliament has, by an absolute majority vote, waived the requirements of that subsection; or
  • (b) both the Speaker (acting on behalf of the Parliament) and the Prime Minister are satisfied that the giving of the consent of Papua New Guinea to be bound as a party to the treaty is too urgent a matter to allow of compliance with that subsection, or that compliance would not be in the national interest.

• (6) A certificate of the Speaker as to any matter arising under this section is, before all courts and all persons acting judicially, conclusive evidence of the facts certified to.

• (7) Notwithstanding the consent of Papua New Guinea to be bound as a party to a treaty, no treaty forms part of the municipal law of Papua New Guinea unless, and then only to the extent that, it is given the status of municipal law by or under a Constitutional Law or an Act of the Parliament.

• (8) Legislative approval or ratification of a treaty does not, without more, give it the status of municipal law for the purposes of Subsection (7).

Subdivision E.—The Committee System

Subdivision E.—The Committee System.

118. Permanent Parliamentary Committees.

• (1) In order to ensure full and active participation by backbenchers in the work of the Parliament and of government, there shall be the following Permanent Parliamentary Committees which, in principle, should cover all major fields of the activities of the National Government:—
  • (a) a Public Accounts Committee, established in accordance with Subdivision VIII.1.C (the Public Accounts Committee); and
  • (b) such other committees as are determined by the Parliament from time to time.

• (2) The Parliament shall, subject to this Constitution, make provision by Organic Law, by Act of the Parliament, Standing Order or otherwise, for the establishment, membership, jurisdiction, functions, powers and procedures of the Permanent Parliamentary Committees, and in particular for empowering such a Committee to call for persons, papers and records.

• (3) No Minister may be a member of a Permanent Parliamentary Committee.

• (4) In principle, membership of the Permanent Parliamentary Committees should be spread as widely as practicable among the backbenchers.

119. Chairmen and Deputy Chairmen.

• (1) There shall be a Chairman and a Deputy Chairman of each Permanent Parliamentary Committee.

• (2) In principle, either the Chairman or the Deputy Chairman of each Permanent Parliamentary Committee should be a member of the Parliament who is recognized by the Parliament as being generally committed to support the Government in the Parliament, and the other should be a member of the principal party or group, or coalition of parties or groups, that is recognized by the Parliament as being not so committed.

• (3) Subject to any Act of the Parliament and to the Standing Orders of the Parliament, in the event of the absence or non-availability to act of the Chairman, the Deputy Chairman has all the rights, privileges, powers, functions, duties and responsibilities of the Chairman.

• (4)^[XXVI] An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and the Strengthening of Political Parties) may provide that in certain circumstances a member of the Parliament is not eligible to be appointed to or hold the office of Chairman or Deputy Chairman of a Permanent Parliamentary Committee.

120. Roles of Chairmen and Deputy Chairmen of Permanent Parliamentary Committees.

• (1) The Chairman and Deputy Chairman of each Permanent Parliamentary Committee shall be granted full access to each Minister having responsibilities relevant to the jurisdiction and functions of his Committee and, by arrangement with the Minister, to the head of the Minister's department, and are entitled to be briefed and consulted on major policy issues.

• (2) In relation to any information given to or obtained by them under Subsection (1), the Chairman and the Deputy Chairman are under the same obligation, whether by law or by convention, as to confidentiality as is the Minister but this principle does not prevent the Chairman or Deputy Chairman from briefing the members of his Permanent Parliamentary Committee on major policy issues.

• (3) In relation to any information given to him under Subsection (2), a member of a Permanent Parliamentary Committee is under the same obligation, whether by law or convention, as to confidentiality as is the Minister.

121. Sessional Committees, Select Committees, etc.

Nothing in this Subdivision prevents the Parliament from establishing Sessional or Select Committees or other committees for any purpose, or prevents the Parliament from sitting as a Committee of the Whole.

122. Arrangement of Parliamentary business in relation to Committees.

The business of the Parliament shall be so arranged as to allow reasonable time for committees of the Parliament to perform their functions adequately, and the Standing Orders of the Parliament shall make provision to ensure that such time is allowed either within or outside the sitting hours of the Parliament.

123. Membership of Parliamentary Committees.

Each committee of the Parliament shall consist only of members of the Parliament, but nothing in this section prevents the establishment, by statute or otherwise, of commissions or committees of any other kind.

Subdivision F.—Calling, etc., of the Parliament

Subdivision F.—Calling, etc., of the Parliament.

124. Calling, etc.

• (1)^[XXVII] The Parliament shall be called to meet not more than seven days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.

• (2) An Organic Law shall make provision for the calling of meetings of the Parliament.

• (3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament.

Subdivision G.—Electorates and Elections

Subdivision G.—Electorates and Elections.

125. Electorates.

• (1) The number of open electorates and of provincial electorates and their boundaries shall be determined by the Parliament in accordance with recommendations from a Boundaries Commission from time to time, at intervals determined by or under an Organic Law, being intervals of not more than 10 years.

• (2) In recommending open electorates and open electorate boundaries, the Boundaries Commission shall, taking into account any considerations laid down by an Organic Law, endeavour to ensure that all open electorates contain approximately the same population, within limits prescribed by an Organic Law.

• (3) The Parliament may accept or reject, but may not amend, any recommendation of the Boundaries Commission under Subsection (1).

• (4) The Boundaries Commission is not subject to direction or control by any person or authority.

• (5) An Organic Law shall make further provision for and in respect of the appointment, constitution and procedures of the Boundaries Commission, and for safeguarding its independence, and in relation to the procedures for formulating and considering its recommendations.

• (6)^[XXVIII] An Organic Law relating to provinces or to Provincial Governments and Local-level Governments may confer or impose on the Boundaries Commission powers, functions, duties or responsibilities in relation to the boundaries of provinces and of provincial electorates.

126. Elections.

• (1) Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.

• (2) General elections shall be held in accordance with Sections 105 (general elections) and 106 (by-elections), as required.

• (3) The members of the Parliament (other than the nominated members) shall be elected under a system of universal, adult, citizen suffrage in accordance with Section 50 (right to vote and stand for public office) and the other Constitutional Laws, and the voting age is 18 years.

• (4) A citizen's right to vote in an election to the Parliament is as provided by Section 50 (right to vote and stand for public office).

• (5) No non-citizen may vote in an election for the Parliament.

• (6) The Electoral Commission is not subject to direction or control by any person or authority.

• (7) An Organic Law shall make provision for and in respect of—
  • (a) the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; and
  • (b) the electoral system; and
  • (c) safeguarding the integrity of elections; and
  • (d) appeals to the National Court in electoral matters.

• (8)^[XXIX] An Organic Law relating to provinces or provincial government may confer or impose on the Electoral Commission powers, functions, duties or responsibilities in relation to provincial elections.

Subdivision H.—Protection of Elections from Outside or Hidden Influence, and Strengthening of Political Parties

Subdivision H.^[XXX]—Protection of Elections from Outside or Hidden Influence, and Strengthening of Political Parties.

127.^[XXXI] Purposes of Subdivision H.

The purposes of this Subdivision are—

• (a) to protect elections and to prevent candidates from being, or appearing to be or to have been, improperly influenced by outside (especially foreign) or hidden influences; and
• (b) to permit the funding of registered political parties; and
• (c) to restrict a member of the Parliament in certain circumstances from resigning or withdrawing from or failing to support a political party of which he is a member; and
• (d) to provide that in certain circumstances a member of the Parliament who—
  • (i) resigns or withdraws from the political party of which he is a member; or
  • (ii) fails to support the political party of which he is a member; or
  • (iii) is a member of a political party whose registration is cancelled,
• is guilty of misconduct in office; and
• (e) to restrict in certain circumstances the voting rights of a member of the Parliament,

and an Organic Law may make provision, in addition to the provisions expressly referred to in this Subdivision, for achieving those purposes.

128. "Registered political party".

In this Subdivision, "registered political party" means a political party or organization registered under an Organic Law made for the purpose of Section 129(1)(a) (integrity of political parties).

129. Integrity of political parties.

• (1) An Organic Law shall make provision—
  • (a) requiring any political party or organization having political aims and desiring to nominate a candidate for election to the Parliament, or to publicly support such a candidate as representing its views, to register with the Electoral Commission such reasonable particulars as are prescribed by Organic Law; and
  • (b) requiring any such party or organization to disclose to the Ombudsman Commission or some other authority prescribed by the law in such manner, at such times and with such details as are prescribed in or under the law—
    • (i) its assets and income, and their sources; and
    • (ii) its expenditure on or connected with an election or the support of a candidate; and
  • (c) prohibiting non-citizens from membership of, and from contributing to the funds of, any such party or organization; and
  • (d) defining the corporations and organizations that are to be regarded as non-citizens for the purposes of a provision made for the purposes of paragraph (c); and
  • (e) limiting the amount of contributions that such a party or organization may receive from any source or sources; and
  • (f) requiring persons who have made, or may have made, contributions to any such party or organization to give to the Ombudsman Commission, or some other authority, details of any such contribution.
  • (g)^[XXXII] authorizing the funding of registered political parties from the National Budget and establishing a body to manage and distribute the funds in accordance with established procedures; and
  • (h)^[XXXIII] authorizing the payment in certain circumstances of a percentage of electoral expenses incurred by a female candidate in an election.

• (2) Where another authority is prescribed by the law under Subsection (1)(b), that authority—
  • (a) shall be composed of a person or persons who are declared under paragraph (i) of the definition of "constitutional office-holder" in Section 221 (definitions) to be a constitutional office-holder; and
  • (b) is not subject to direction or control by any person or authority.

• (3) An Organic Law made for the purposes of Subsection (1) may provide that the value of any assistance given otherwise than in cash shall be taken into account as expenditure or contributions for any purpose of that subsection or of that law.

130. Integrity of candidates.

• (1) An Organic Law shall make provision—
  • (a) requiring a candidate or former candidate for election to the Parliament to disclose to the Ombudsman Commission or some other authority prescribed by the law, in such manner, at such times and with such details as are prescribed by or under the law—
    • (i) any assistance (financial or other) received by him in respect of his candidature, and its source; and
    • (ii) the amount or value of his electoral expenses; and
  • (b) prohibiting a candidate or former candidate for election to the Parliament from accepting from a non-citizen assistance (financial or other) in respect of his candidature; and
  • (c) defining the corporations and organizations that are to be regarded as non-citizens for the purposes of a provision made for the purposes of paragraph (b); and
  • (d) regulating or restricting the amount or kind of such assistance that may be received from any source other than a registered political party; and
  • (e) prohibiting a candidate for election to the Parliament from holding himself out as representing any party or organization other than a registered political party that has publicly adopted him as its candidate.

• (2) Where another authority is prescribed by the law under Subsection (1)(b), that authority—
  • (a) shall be composed of a person or persons who are declared under paragraph (i) of the definition of "constitutional office-holder" in Section 221 (definitions) to be a constitutional office-holder; and
  • (b) is not subject to direction or control by any person or authority.

• (3) An Organic Law made for the purposes of Subsection (1) may make provision for further defining what are to be regarded as assistance and electoral expenses for any purpose of that subsection or of that law, and in particular may provide that—
  • (a) the value of hospitality (including meals, accommodation and transport) of a kind and to a degree recognized by custom in the country shall not be taken into account as assistance; and
  • (b) the personal expenses of a candidate shall not be taken into account as electoral expenses.

• (4) In this section—
  • "electoral expenses", in relation to a candidate, means expenses incurred (whether before, during or after an election to the Parliament, including expenses incurred before the issue of the writ for election) by him or on his behalf on account of or in respect of the election;
  • "personal expenses", in relation to a candidate, means any reasonable costs incurred by him personally for travel and for living away from his home for the purposes of the election.

130A.^[XXXIV] Provisions relating to political parties.

An Organic Law made for the purposes of this Subdivision may—

• (a) restrict a member of the Parliament from resigning or withdrawing from a political party of which he is a member; and
• (b) restrict a member of the Parliament from failing to support, in certain circumstances, a political party of which he is a member; and
• (c) provide that, in certain circumstances, a member of Parliament who—
  • (i) resigns or withdraws from the political party of which he is a member; or
  • (ii) fails to support the political party of which he is a member; or
  • (iii) is a member of a political party whose registration is cancelled,
• is guilty of misconduct in office; and
• (d) permit a member of the Parliament who at the time of his election to the Parliament was not a member of a registered political party to join a registered political party; and
• (e) authorize the Head of State to invite a registered political party to form the Government in certain circumstances; and
• (f) restrict a member of the Parliament in certain circumstances, from exercising his voting rights in the Parliament.

Subdivision I.—General

Subdivision I.—General.

131.^[XXXV] The Parliamentary Salaries Tribunal [repealed].

132. The Parliamentary Service.

• (1) An Act of the Parliament shall make provision for and in respect of a Parliamentary Service, separate from the other State Services.

• (2) Within the Service, there shall be an office of Clerk of the National Parliament who shall, subject to Subsection (3), be the head of the Service.

• (3) The Service shall be subject to the direction and control of the Speaker and shall perform its functions impartially.

133. Standing Orders.

The Parliament may make Standing Orders and other rules and orders in respect of the order and conduct of its business and proceedings and the business and proceedings of its committees, and of such other matters as by law are required or permitted to be prescribed or provided for by the Standing Orders of the Parliament.

134. Proceedings non-justiciable.

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.

135. Questions as to membership, etc.

The National Court has jurisdiction to determine any question as to—

• (a) the qualifications of a person to be or to remain a member of the Parliament; or
• (b) the validity of an election to the Parliament.

136. Validation of Acts of the Parliament.

Where a person who has purported to sit or vote as a member of the Parliament at a meeting of the Parliament or of a committee of the Parliament—

• (a) was not duly qualified to be elected or appointed, or to continue, as a member of the Parliament; or
• (b) had vacated his office as a member of the Parliament,

all things done or purporting to have been done by the Parliament or by the committee, as the case may be, shall be deemed to have been as validly done as if that person had, when so sitting or voting, been duly qualified to be elected or appointed or to continue as a member of the Parliament, or had not vacated his office, as the case may be.

Division 3.—Special Instances of the Legislative Power

Division 3.—Special Instances of the Legislative Power.

137. Acts of Indemnity.

• (1) If—
  • (a) a provision of a Constitutional Law has been contravened or not complied with; and
  • (b) the Parliament is satisfied that—
    • (i) the contravention or non-compliance was made in good faith and in exceptional circumstances for the purpose, or with the intention, of upholding this Constitution or protecting Papua New Guinea, or of dealing with an emergency for which no provision or no adequate provision appeared to exist; and
    • (ii) no blameworthiness attaches to some person or some persons concerned in the contravention or non-compliance,
• the Parliament may make a special law (to be known as an "Act of Indemnity") in relation to that person or those persons.

• (2) An Act of Indemnity shall—
  • (a) specify the contravention or non-compliance; and
  • (b) certify as to the Parliament's satisfaction concerning the matters specified in Subsection (1)(b)(i) and (ii); and
  • (c) identify or provide for the identification of the person or persons to whom it relates; and
  • (d) provide for the making of full compensation to any person suffering injury as a result of the contravention or non-compliance; and
  • (e) be made in accordance with the procedures laid down by this Constitution for the making of Organic Laws; and
  • (f) be passed by an absolute majority vote of the Parliament.

• (3) Before the Speaker certifies under Section 110 (certification as to making of laws) as to the Act, he shall refer the question, whether the Act complies with this section, for the opinion of the Supreme Court in accordance with Section 19 (special references to the Supreme Court), and until the Court advises that the Act does so comply he shall not so certify it.

• (4) An Act of Indemnity—
  • (a) relieves, and shall be expressed to relieve, the person or persons concerned from all liability for, and from all legal consequences of, the contravention or non-compliance; and
  • (b) if a person concerned has been convicted of an offence in respect of or arising out of the contravention or non-compliance, takes effect as a free pardon,
• but in respect only of acts done before the Parliament was formally advised of the intention to propose the Act.

• (5) An Act of Indemnity does not take effect as a Constitutional Law.

• (6) An Act of Indemnity shall not be amended or extended in any way, and its repeal does not affect the operation of Subsection (4).

Division 4.—The National Executive

Division 4.—The National Executive.

Subdivision A.—The National Executive and the Executive Power

Subdivision A.—The National Executive and the Executive Power.

138. Vesting of the executive power.

Subject to this Constitution, the executive power of the People is vested in the Head of State, to be exercised in accordance with Division V.2 (functions, etc., of the Head of State).

139. The National Executive.

The National Executive consists of—

• (a) the Head of State acting in accordance with Division V.2 (functions, etc., of the Head of State); and
• (b) the National Executive Council.

140. Conferring of powers, etc., outside the National Executive.

Except where the contrary intention appears, nothing in this Constitution prevents an Organic Law or a statute from conferring or imposing powers, functions, duties or responsibilities on a person or authority outside the National Executive.

Subdivision B.—The Ministry

Subdivision B.—The Ministry.

141. Nature of the Ministry: collective responsibility.

The Ministry is a Parliamentary Executive, and therefore—

• (a) no person who is not a member of the Parliament is eligible to be appointed to be a Minister, and, except as is expressly provided in this Constitution to the contrary, a Minister who ceases to be a member of the Parliament ceases to hold office as a Minister; and
• (b) it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive; and
• (c) it is liable to be dismissed from office, either collectively or individually, in accordance with this Subdivision.

142. The Prime Minister.

• (1) An office of Prime Minister is hereby established.

• (2) The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

• (3) If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

• (4) If the Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of the Parliament, and the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

• (5) The Prime Minister—
  • (a) shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145 (motions of no confidence), a motion of no confidence in him or the Ministry, except where the motion is moved within the last 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election; and
  • (b) may be dismissed from office in accordance with Division III.2 (leadership code); and
  • (c) may be removed from office by the Head of State, acting in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed by the National Authority responsible for the registration or licensing of medical practitioners have jointly reported in accordance with an Act of the Parliament that, in their professional opinions, the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.

• (6) The Prime Minister may be suspended from office—
  • (a) by the tribunal appointed under an Organic Law made for the purposes of Section 28 (further provisions), pending an investigation into a question of misconduct in office within the meaning of Division III.2 (leadership code), and any resultant action; or
  • (b) in accordance with an Act of the Parliament, pending an investigation for the purposes of Subsection (5)(c), and any resultant action by the Parliament.

• (7)^[XXXVI] An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties) may provide that in certain circumstances a member of the Parliament is not eligible to be appointed to or hold the office of Prime Minister.

143. Acting Prime Minister.

• (1) Subject to Subsection (2) an Act of the Parliament shall make provision for and in respect of the appointment of a Minister to be Acting Prime Minister to exercise and perform the powers, functions, duties and responsibilities of the Prime Minister when—
  • (a) there is a vacancy in the office of Prime Minister; or
  • (b) the Prime Minister is suspended from office; or
  • (c) the Prime Minister is—
    • (i) absent from the country; or
    • (ii) out of speedy and effective communication; or
    • (iii) otherwise unable or not readily available to perform the duties of his office.

• (2) Where a Prime Minister is dismissed under Section 142(5)(a) (the Prime Minister) the person nominated under Section 145(2)(a) (motions of no confidence)—
  • (a) becomes the Acting Prime Minister until he is appointed a Prime Minister in accordance with Section 142(2) (the Prime Minister); and
  • (b) may exercise and perform all the powers, functions, duties and responsibilities of a Prime Minister.

• (3) The question whether the occasion for the appointment of an Acting Prime Minister or for the exercise or performance of a power, function, duty or responsibility by an Acting Prime Minister, under this section has arisen or has ceased, is non-justiciable.

144. Other Ministers.

• (1) There shall be such number of Ministers (other than the Prime Minister), not being less than six or more than one quarter of the number of members of the Parliament from time to time, as is determined by or under an Organic Law.

• (2) The Ministers, other than the Prime Minister, shall be appointed by the Head of State, acting with, and in accordance with, the advice of the Prime Minister.

• (3) A Minister, other than the Prime Minister, may be suspended from office in accordance with an Organic Law made for the purposes of Section 28(2) (further provisions).

• (4) A Minister other than the Prime Minister—
  • (a) shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145 (motions of no confidence), a motion of no confidence in him; and
  • (b) may be dismissed from office—
    • (i) by the Head of State, acting with, and in accordance with, the advice of the Prime Minister; or
    • (ii) in accordance with Division III.2 (leadership code).

• (5)^[XXXVII] An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties) may provide that in certain circumstances a member of the Parliament is not eligible to be appointed to or hold the office of Minister.

145. Motions of no confidence.

• (1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—
  • (a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
  • (b) of which not less than one week's notice, signed by a number of members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.

• (2) A motion of no confidence in the Prime Minister or the Ministry—
  • (a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and
  • (b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.

• (3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.

• (4)^[XXXVIII] A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of eighteen months commencing on the date of the appointment of the Prime Minister.

146. Resignation.

• (1) The Prime Minister may resign from office by notice in writing to the Head of State.

• (2) A Minister other than the Prime Minister may resign from office by notice in writing to the Prime Minister.

147. Normal term of office.

• (1) Unless he earlier—
  • (a) dies; or
  • (b) subject to Subsection (2), resigns; or
  • (c) subject to Subsection (3), ceases to be qualified to be a Minister; or
  • (d) is dismissed or removed from office,
• a Minister (including the Prime Minister) holds office until the next appointment of a Prime Minister.

• (2) Notwithstanding Subsection (1)(b)—
  • (a) a Prime Minister who resigns; and
  • (b) a Ministry that resigns collectively,
• shall continue in office until the appointment of the next Prime Minister.

• (3) Notwithstanding Subsection (1)(c), a Minister who—
  • (a) ceases, by reason of a general election, to be a member of the Parliament; but
  • (b) remains otherwise qualified to be a member of the Parliament,
• shall continue in office until the next appointment of a Prime Minister.

148. Functions, etc., of Ministers.

• (1) Ministers (including the Prime Minister) have such titles, portfolios and responsibilities as are determined from time to time by the Prime Minister.

• (2) Except as provided by a Constitutional Law or an Act of the Parliament, all departments, sections, branches and functions of government must be the political responsibility of a Minister, and the Prime Minister is politically responsible for any of them that are not specifically allocated under this section.

• (3) Subsection (2) does not confer on a Minister any power of direction or control.

Subdivision C.—The National Executive Council

Subdivision C.—The National Executive Council.

149. The National Executive Council.

• (1) A National Executive Council is hereby established.

• (2) The Council shall consist of all the Ministers (including the Prime Minister when he is present as Chairman).

• (3) The functions of the Council are—
  • (a) to be responsible, in accordance with this Constitution, for the executive government of Papua New Guinea; and
  • (b) such other functions as are allocated to it by this Constitution or any other law.

• (4) Except where the contrary intention appears, nothing in this Constitution prevents the powers, functions, duties or responsibilities of the Council from being exercised, as determined by it, through a Minister.

• (5) Subject to any Organic Law or Act of the Parliament, the procedures of the Council are as determined by it.

150. The Secretary to the National Executive Council.

• (1) An office of Secretary to the National Executive Council is hereby established.

• (2) Subject to any Act of the Parliament, the functions and responsibilities of the Secretary of the Council shall be as determined by the Council.

Subdivision D.—The Power of Mercy

Subdivision D.—The Power of Mercy.

151. Grant of pardon, etc.

• (1) Subject to this Subdivision, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may grant to a person convicted of an offence or held in penal detention under a law of Papua New Guinea—
  • (a) a pardon, either free or conditional; or
  • (b) a remission or commutation of sentence; or
  • (c) a respite of the execution of sentence; or
  • (d) a less severe form of punishment for that imposed by any sentence,
• and may remit or refund, in whole or in part, any fine, penalty or forfeiture paid or payable to a governmental body.

• (2) Where an offence has been committed, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may grant a pardon, either free or conditional, to an accomplice who gives evidence that leads to the conviction of a principal offender.

• (3) Except in a case referred to in Subsection (2) or as otherwise permitted by or under an Act of the Parliament, the exercise of the power conferred by Subsection (1) shall not be held out, offered or promised in advance of conviction.

• (4) Nothing in this section prevents the establishment by law of systems of probation, parole or release on licence, or any similar systems.

152. Advisory Committee on the Power of Mercy.

• (1) An Organic Law shall make provision for and in respect of an Advisory Committee on the Power of Mercy, and for and in respect of its appointment, constitution, powers and procedures.

• (2) Before giving any advice to the Head of State under Section 151(1) (grant of pardon, etc.), the National Executive Council shall consider a report from the Advisory Committee.

Subdivision E.—General

Subdivision E.—General.

153. Validity of executive acts.

• (1) Subsections (2), (3) and (4) are subject to any Constitutional Law or Act of the Parliament.

• (2) The question, whether the procedures prescribed for the National Executive Council have been or are being complied with, is non-justiciable.

• (3) The question, whether any, and if so what report has been given to the National Executive Council by the Advisory Committee on the Power of Mercy, is non-justiciable.

• (4) No act of a Minister is open to challenge on the ground that he was not empowered to perform the act, if some other Minister, or any Minister, was so empowered.

• (5) This section does not limit the jurisdiction or powers of the Ombudsman Commission, or of an authority or tribunal established under Division III.2 (leadership code).

Division 5.—The Administration of Justice

Division 5.—The Administration of Justice.

Subdivision A.—General Structure and Principles of the National Justice Administration

Subdivision A.—General Structure and Principles of the National Justice Administration.

154. The National Justice Administration.

The National Justice Administration consists of—

• (a) the National Judicial System; and
• (b) the Minister responsible for the National Justice Administration; and
• (c) the Law Officers of Papua New Guinea.

155. The National Judicial System.

• (1) The National Judicial System consists of—
  • (a) the Supreme Court; and
  • (b) the National Court; and
  • (c) such other courts as are established under Section 172 (establishment of other courts).

• (2) The Supreme Court—
  • (a) is the final court of appeal; and
  • (b) has an inherent power to review all judicial acts of the National Court; and
  • (c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

• (3) The National Court—
  • (a) has an inherent power to review any exercise of judicial authority; and
  • (b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,
• except where—
  • (c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
  • (d) the Supreme Court assumes jurisdiction under Subsection (4); or
  • (e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

• (4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

• (5) In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case.

• (6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.

156. The Law Officers.

• (1) The Law Officers of Papua New Guinea are—
  • (a) the principal legal adviser to the National Executive; and
  • (b) the Public Prosecutor; and
  • (c) the Public Solicitor.

• (2) An Act of the Parliament shall make provision for and in respect of the office referred to in Subsection (1)(a).

157. Independence of the National Judicial System.

Except to the extent that this Constitution specifically provides otherwise, neither the Minister responsible for the National Justice Administration nor any other person or authority (other than the Parliament through legislation) outside the National Judicial System has any power to give directions to any court, or to a member of any court, within that System in respect of the exercise of judicial powers or functions.

Subdivision B.—The Judicial Power

Subdivision B.—The Judicial Power.

158. Exercise of the judicial power.

• (1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

• (2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

159. Tribunals, etc., outside the National Judicial System.

• (1) Subject to Subsection (3), nothing in this Constitution prevents an Organic Law or a statute from conferring judicial authority on a person or body outside the National Judicial System, or the establishment by or in accordance with law, or by consent of the parties, of arbitral or conciliatory tribunals, whether ad hoc or other, outside the National Judicial System.

• (2) Nothing in, or done in accordance with, Subsection (1) affects the operation of Section 155(4) or (5) (the National Judicial System).

• (3) No person or body outside the National Judicial System, has, or may be given, power to impose a sentence of death or imprisonment, or to impose any other penalty as for a criminal offence, but nothing in this subsection prevents—
  • (a) the imposition, in accordance with law, of disciplinary detention or any other disciplinary punishment (other than death) by a disciplinary authority of a disciplined force on persons subject to the disciplinary law of the force; or
  • (b) the imposition, in accordance with law, of disciplinary punishments (other than death or detention) on members of other State or provincial services; or
  • (c) the imposition of reasonable penalties (other than death or detention) by an association on its members for breaches of its rules.

• (4) In Subsection (3)(a), "disciplined force" has the same meaning as in Section 207 (definition of "disciplined force").

Subdivision C.—The Supreme Court of Justice

Subdivision C.—The Supreme Court of Justice.

160. Establishment of the Supreme Court.

• (1) A Supreme Court of Justice is hereby established.

• (2) The Supreme Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.

161. Composition of the Supreme Court.

• (1) The Supreme Court shall consist of the Chief Justice, the Deputy Chief Justice and the other Judges of the National Court (excluding the acting Judges).

• (2) Subject to Section 162(2) (jurisdiction of the Supreme Court) and for the purposes of any hearing, the Supreme Court shall consist of at least three Judges.

• (3) In a hearing that consists of at least three Judges, the Chief Justice, the Deputy Chief Justice or the most senior Judge available shall preside over the Court.

162. Jurisdiction of the Supreme Court.

• (1) The jurisdiction of the Supreme Court is as set out in—
  • (a) Subdivision II.2.C (constitutional interpretation); and
  • (b) Subdivision III.3.D (enforcement); and
  • (c) Section 155 (the National Judicial System),
• and otherwise as provided by this Constitution or any other law.

• (2) In such cases as are provided for by or under an Act of the Parliament or the Rules of Court of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

• (3) The jurisdiction of the Supreme Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another such Judge or Judges.

• (4) The jurisdiction of the Supreme Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the Supreme Court.

Subdivision D.—The National Court of Justice

Subdivision D.—The National Court of Justice.

163. Establishment of the National Court.

• (1) A National Court of Justice is hereby established.

• (2) The National Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.

164. Composition of the National Court.

The National Court shall consist of—

• (a) the Chief Justice; and
• (b) the Deputy Chief Justice; and
• (c) subject to Section 165(2) (Acting Judges) not less than four or more than six other Judges, or such greater number as is determined by or under an Act of the Parliament.

165. Acting Judges.

• (1) A person who is qualified under Section 168 (qualifications) for appointment may be appointed to be an acting Judge of the National Court—
  • (a) to fill temporarily a vacancy; or
  • (b) in the case of the absence from duty for any reason of a Judge of that Court; or
  • (c) to meet a temporary unexpected workload or other exigency of the business of the Court.

• (2) An appointment under Subsection (1)(c) may be made without reference to the numerical limit imposed by Section 164 (composition of the National Court).

166. Jurisdiction of the National Court.

• (1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

• (2) In particular, the National Court has the jurisdiction set out in—
  • (a) Section 22 (enforcement of the Constitution); and
  • (b) Subdivision III.3.D (enforcement); and
  • (c) Section 155 (the National Judicial System),
• and otherwise as provided by this Constitution or any other law.

• (3) Subject to any Act of the Parliament and to the Rules of Court of the National Court, the jurisdiction of the National Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

• (4) The jurisdiction of the National Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another Judge or other Judges.

• (5) The jurisdiction of the National Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court.

167. Assistant Judges.

Subject to this section, an Act of the Parliament may make provision for and in respect of the appointment of Assistant Judges of the National Court, and for and in respect of their qualifications, privileges, powers, functions, duties and responsibilities, and of their terms and conditions of employment.

Subdivision E.—Appointment, etc., of Judges

Subdivision E.—Appointment, etc., of Judges.

168. Qualifications.

The qualifications for appointment as a Judge are as determined by or under an Act of the Parliament.

169. Appointment, etc., of the Chief Justice.

• (1) An office of Chief Justice of Papua New Guinea is hereby established.

• (2) The Chief Justice shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Minister responsible for the National Justice Administration.

• (3) In addition to his other powers, functions, duties and responsibilities, the Chief Justice, after consultation with the other Judges, is responsible for the organization of the affairs and the administration of the business of the Supreme Court and the National Court (other than, except to the extent allowed by or under an Act of the Parliament, matters relating to the National Public Service).

• (4) Where—
  • (a) there is a vacancy in the office of Chief Justice; or
  • (b) the Chief Justice is absent from the country or is absent from duty; or
  • (c) the Chief Justice is unable or unavailable to act; or
  • (d) the Chief Justice so directs,
• the powers, functions, duties and responsibilities (other than as acting Governor-General) of the Chief Justice may be exercised and performed by the next most senior Judge who is available.

• (5) The question, whether the occasion for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Judge under this section has arisen or has ceased, is non-justiciable.

170. Appointment of other Judges.

• (1) An office of Deputy Chief Justice of Papua New Guinea is hereby established.

• (2) The Deputy Chief Justice and the other Judges of the National Court (other than the Chief Justice) and acting Judges shall be appointed by the Judicial and Legal Services Commission.

• (3) No appointment of an acting Judge shall continue for a period of more than 12 months, but one extension for a period of not more than 12 months may be granted by the Judicial and Legal Services Commission.

• (4) The question, whether the occasion for the appointment of an acting Judge has arisen or has ceased, is non-justiciable.

171. Seniority of Judges.

• (1) Subject to Subsection (2), the Chief Justice is the most senior Judge, the Deputy Chief Justice is the second senior Judge and the other Judges (other than acting Judges) have seniority according to the dates of their respective appointments, unless otherwise stated in an instrument of appointment.

• (2) Unless otherwise stated in an instrument of appointment, acting Judges—
  • (a) rank in seniority after the other Judges; and
  • (b) have seniority as between themselves according to the dates of their respective appointments or last appointments, as the case requires.

Subdivision F.—Inferior Courts, the Magisterial Service, etc

Subdivision F.—Inferior Courts, the Magisterial Service, etc.

172. Establishment of other courts.

• (1) Subject to this Constitution, Acts of the Parliament may establish, or provide for the establishment of, courts within the National Judicial System in addition to the Supreme Court and the National Court, and may define, or provide for the definition of, their respective powers, functions and jurisdictions and their relationship with other components of the National Judicial System.

• (2) Courts established under Subsection (1) may include courts intended to deal with matters primarily by reference to custom or in accordance with customary procedures, or both.

• (3) Full-time members of courts established under Subsection (1) (other than courts referred to in Subsection (2)) shall be appointed by the Judicial and Legal Services Commission, and may be removed from office in accordance with an Act of the Parliament, but only for incapacity or misbehaviour (including, if applicable, misconduct in office).

• (4) Acts of the Parliament may make provision for or in respect of the appointment and removal from office of members of courts referred to in Subsection (2).

173. Establishment of the Magisterial Service.

• (1) A service to be known as the Magisterial Service is hereby established.

• (2) The Magisterial Service consists of—
  • (a) the Chief Magistrate; and
  • (b) subject to Section 174 (magistrates, etc., outside the Magisterial Service), all other members of courts established under Section 172 (establishment of other courts); and
  • (c) such other persons employed in connection with the National Judicial System as are prescribed by or under Acts of the Parliament.

• (3) The Chief Magistrate is responsible to the Judicial and Legal Services Commission for the efficient functioning and operation of the Magisterial Service.

• (4) Subject to the Constitutional Laws, an Act of the Parliament shall make provision for and in respect of the Magisterial Service.

174. Magistrates, etc., outside the Magisterial Service.

• (1) Unless and except to the extent that an Act of the Parliament makes provision to the contrary, members of village courts are not, as such, members of the Magisterial Service.

• (2) An Act of the Parliament may provide for part-time members of courts established under Section 172 (establishment of other courts), who need not be members of the Magisterial Service.

175. The Chief Magistrate.

• (1) An office of Chief Magistrate is hereby established.

• (2) The Chief Magistrate shall be appointed by the Judicial and Legal Services Commission.

• (3) Unless and except to the extent that an Act of the Parliament makes provision to the contrary, the Chief Magistrate is ex officio a member of all courts (other than village courts) established under Section 172 (establishment of other courts), and, if provision is made for grades of powers, functions or jurisdiction within any such courts, has all the powers, functions and jurisdiction of the highest grades.

• (4) In the performance of his functions under Section 173(3) (establishment of the Magisterial Service), the Chief Magistrate shall carry out any directions or instructions of the Judicial and Legal Services Commission.

Subdivision G.—The Public Prosecutor and the Public Solicitor

Subdivision G.—The Public Prosecutor and the Public Solicitor.

176. Establishment of offices.

• (1) Offices of Public Prosecutor and Public Solicitor are hereby established.

• (2) The Public Prosecutor and the Public Solicitor shall be appointed by the Judicial and Legal Services Commission.

• (3) Subject to this Constitution—
  • (a) in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority; but
  • (b) nothing in paragraph (a) prevents the Head of State, acting with, and in accordance with, the advice of the National Executive Council, giving a direction to the Public Prosecutor on any matter that might prejudice the 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).

• (4) The Prime Minister shall table in the National Parliament any direction to the Public Prosecutor at the next sitting of the Parliament after the direction is given unless, after consultation with the Leader of the Opposition, he considers that tabling of the direction is likely to prejudice the security, defence or international relations of Papua New Guinea.

• (5) Subject to Section 177(2) (functions of the Public Prosecutor and the Public Solicitor), in the performance of his functions under this Constitution the Public Solicitor is not subject to direction or control by any person or authority.

177. Functions of the Public Prosecutor and the Public Solicitor.

• (1) The functions of the Public Prosecutor are—
  • (a) in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and
  • (b) to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office.

• (2) The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular—
  • (a) to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and
  • (b) notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and
  • (c) in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be—
    • (i) limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and
    • (ii) granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament.

• (3) A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under Subsection (2)(b).

• (4) For the purposes of this section the need of a person is to be interpreted in relation to each particular case and, without limiting the generality of this expression, account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtain legal assistance other than by the Public Solicitor.

• (5) An Act of Parliament may make provision for the Public Solicitor to make a reasonable charge for services provided by him to persons in need of his help whom he considers are able to make a contribution towards the cost of these services.

• (6) An Act of the Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Subsections (1) and (2), on the Public Prosecutor or the Public Solicitor.

Subdivision H.—Removal from Office of Senior Judicial and Legal Office-holders

Subdivision H.—Removal from Office of Senior Judicial and Legal Office-holders.

178. Grounds of removal.

A Judge, the Public Prosecutor, the Public Solicitor or the Chief Magistrate may, during his term of office, be removed from office only—

• (a) for inability (whether arising from physical or mental infirmity or otherwise) to perform the functions and duties of his office; or
• (b) for misbehaviour; or
• (c) in accordance with Division III.2 (leadership code), for misconduct in office.

179. Removal from office of Chief Justice.

• (1) If the National Executive Council is satisfied that the question of the removal from office of the Chief Justice should be investigated, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may—
  • (a) appoint a tribunal under Section 181 (constitution, etc., of tribunals); and
  • (b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.

• (2) If the tribunal reports that there are good grounds for removing the Chief Justice from office, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may, by notice in writing to the Chief Justice, remove him from office.

• (3) The Prime Minister shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament, and shall also forward copies to the Judicial and Legal Services Commission.

180. Removal from office of other Judges, etc.

• (1) If the Judicial and Legal Services Commission is satisfied that the question of the removal from office of a Judge (other than the Chief Justice), the Public Prosecutor, the Public Solicitor or the Chief Magistrate should be investigated, it may—
  • (a)* appoint a tribunal under Section 181 (constitution, etc., of tribunals); and
  • (b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.

• (2) If the tribunal reports that there are good grounds for removing the Judge, Public Prosecutor, Public Solicitor or Chief Magistrate from office, the Judicial and Legal Services Commission, may, by notice in writing to the Judge, Public Prosecutor, Public Solicitor or Chief Magistrate, as the case may be, remove him from office.

• (3) The Commission shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament.

181. Constitution, etc., of tribunals.

• (1) A tribunal for the purposes of Section 179 (removal from office of Chief Justice) or 180 (removal from office of other Judges, etc.) shall consist of a Chairman and two other members, each of whom must be—
  • (a) a Judge or former Judge of the Supreme Court or of the National Court; or
  • (b) a former Judge or acting Judge of the pre-Independence Supreme Court; or
  • (c) a Judge or former Judge of a court of unlimited jurisdiction of a country with a legal system similar to that of Papua New Guinea, or of a court to which an appeal from such a court lies.

• (2) The tribunal shall make due inquiry into any matter referred to it without regard to legal formalities or the rules of evidence, and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

182. Suspension.

• (1) Where a question has been referred to a tribunal under this Subdivision—
  • (a) the Head of State, acting with, and in accordance with, the advice of the National Executive Council, in the case of the Chief Justice; or
  • (b) the Judicial and Legal Services Commission, in any other case,
• may suspend the person concerned from office pending the report of the tribunal, and may remove the suspension at any time.

• (2) Unless otherwise determined by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, or by the Judicial and Legal Services Commission, as the case may be, the suspension shall be on full pay.

• (3) Where at the time of the suspension, a suspended Judge or Chief Magistrate was dealing with any judicial proceedings, he may continue and complete those proceedings, unless the Judicial and Legal Services Commission in the case of the Chief Justice, or the Chief Justice in any other case, otherwise orders.

Subdivision I.—The Judicial and Legal Services Commission

Subdivision I.—The Judicial and Legal Services Commission.

183. Establishment of the Commission.

• (1) A Judicial and Legal Services Commission is hereby established.

• (2) Subject to Subsection (3), the Commission consists of—
  • (a) the Minister responsible for the National Justice Administration, or a person nominated by him, who is the Chairman; and
  • (b) the Chief Justice; and
  • (c) the Deputy Chief Justice; and
  • (d) the Chief Ombudsman; and
  • (e) a member of the Parliament appointed by the Parliament.

• (3) When the Commission is considering a matter relating to the appointment or removal from office of a member of the Magisterial Service, or any other matter relating to the Magisterial Service prescribed for the purposes of this subsection by or under an Act of the Parliament, the Chief Magistrate is (except in a matter involving himself) an additional member of the Commission.

• (4) The Commission is not subject to direction or control by any person or authority.

• (5) An Organic Law may make further provision in respect of the constitution, powers, functions, duties and responsibilities of the Commission, and for guaranteeing its independence.

Subdivision J.—Miscellaneous

Subdivision J.—Miscellaneous.

184. Rules of court.

• (1) The Judges of the Supreme Court or of the National Court may make rules of court, not inconsistent with a Constitutional Law or an Act of the Parliament, with respect to the practice and procedure in and in relation to the Supreme Court or the National Court, as the case may be.

• (2) Without limiting the generality of Subsection (1), the rules may make provision for and in respect of—
  • (a) the practice and procedures in the offices of the Supreme Court and the National Court; and
  • (b) the service and execution of process and judgements of the Supreme Court and the National Court; and
  • (c) the service and execution within the country of process and judgements of foreign courts; and
  • (d) the issue by the Supreme Court or the National Court of letters of request for the service in a foreign country of process of the Supreme Court or the National Court, as the case may be, or for the examination of witnesses in a foreign country; and
  • (e) the costs of and relating to proceedings in the Supreme Court or the National Court; and
  • (f) the methods of pleading; and
  • (g) the attendance of witnesses and the taking of evidence; and
  • (h) the means by which particular facts may be proved, and the manner in which evidence of particular facts may be given, in any proceedings or in any application in connection with, or at any stage of, any proceedings.

• (3) The rules of court may require or permit legal argument to be submitted in writing.

• (4) If an Act of the Parliament comes into force that is inconsistent with a rule of court, the rule ceases to have effect to the extent of the inconsistency.

• (5) All rules of court shall be forwarded by the Chief Justice to the Speaker, for presentation to the Parliament, as soon as practicable after being made, and may be disallowed by the Parliament.

185. Lack of procedural provision.

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

186. Juries and assessors.

Nothing in this Division prevents the establishment, by or under an Act of the Parliament, of a system of juries or assessors.

187. Reports by Judges.

• (1) The Judges shall, at least once in each period of 12 months, at such times as are fixed by or under an Act of the Parliament or, subject to any such Act, by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, give to the Head of State, for presentation to the Parliament, a report on the work of the National Judicial System, with such recommendations as to improvement as they think proper.

• (2) Nothing in Subsection (1) prevents the Judges from making, on their own initiative or at the request of the Parliament or of the National Executive, other reports on any aspect of the work of the National Judicial System.

Notes to amendments

footnotes to amendments:

XVIII. ↑  Section 103(2) amended by Constitutional Amendment No. 15—Elections.

XIX. ↑  Section 106(a) amended by Constitutional Amendment No. 15—Elections.

XX. ↑  Subsection (4) amended by Constitutional Amendment No 22.

XXI. ↑  Subsection (1) amended by Constitutional Amendment No 22.

XXII. ↑  Subsection (1) amended by Constitutional Amendment No 22.

XXIII. ↑  Subsection (2) amended by Constitutional Amendment No 22.

XXIV. ↑  Subsection (3) amended by Constitutional Amendment No 22.

XXV. ↑  Subsection (5) added by Constitutional Amendment No 22.

XXVI. ↑  Subsection (4) added by Constitutional Amendment No 22.

XXVII. ↑  Section 124(1) amended by Constitutional Amendment No. 15—Elections.

XXVIII. ↑  Section 125(6) amended by Constitutional Amendment No. 16—Provincial Governments and Local-level Governments.

XXIX. ↑  Section 126(8) was added by Constitutional Amendment No. 2—Provincial Government Elections.

XXX. ↑  Subdivision H amended by Constitutional Amendment No 22.

XXXI. ↑  Section 127 repealed and replaced by Constitutional Amendment No 22.

XXXII. ↑  Paragraph (g) added by Constitutional Amendment No 22.

XXXIII. ↑  Paragraph (h) added by Constitutional Amendment No 22.

XXXIV. ↑  Section 130A inserted by Constitutional Amendment No 22.

XXXV. ↑ 

• Section 131(3) was repealed and replaced by Constitutional Amendment No. 6— Benefits and Pensions.
• Section 131 was repealed by Constitutional Amendment No. 9— Salaries and Remuneration Commission.

XXXVI. ↑  Subsection (7) added by Constitutional Amendment No 22.

XXXVII. ↑  Subsection (5) added by Constitutional Amendment No 22.

XXXVIII. ↑  Section 145(4) amended by Constitutional Amendment No. 14—Notices of No Confidence.

References

• full PNG constitutional text; from Pacific Law Library.