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

by The Government of Papua New Guinea

PART VII.—THE STATE SERVICES

PART VII.—THE STATE SERVICES.

Division 1.—Introductory

Division 1.—Introductory.

188. Establishment of the State Services.

• (1) The following State Services are hereby established:—
  • (a) the National Public Service; and
  • (b) the Police Force; and
  • (c) the Papua New Guinea Defence Force; and
  • (d) the Parliamentary Service.

• (2) Acts of the Parliament may make provision for or in respect of other State Services.

189. Civilian control.

All of the State Services other than the Defence Force shall be civilian services, and all of the State Services shall be subject at all times to ultimate civilian control.

Division 2.—The Public Services Commission

Division 2.—The Public Services Commission.

190.Note-XLII Establishment of the Commission.

• (1) A Public Services Commission is hereby established.

• (2) The Commission shall consist of three members who shall be appointed for a term of five years by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with any appropriate Permanent Parliamentary Committee.

• (3) All of the members of the Commission must be citizens who have gained substantial experience in the National Public Service.

• (4) Subject to this Constitution, an Act of the Parliament shall make provision for and in respect of the appointment and the conditions of employment of the members of the Commission, and for and in respect of its constitution, powers and procedures.

191.Note-XLIII Functions of the Commission.

• (1) The Public Services Commission shall be responsible, in accordance with an Act of the Parliament, for—
  • (a) the review of personnel matters connected with the National Public Service; and
  • (b) the continuous review of the State Services (other than the Papua New Guinea Defence Force), and the services of other governmental bodies, and to advise, either on its own initiative or on request, the National Executive Council and any authority responsible for any or those services, on organizational matters.

• (2) The Public Services Commission has such other functions as may be prescribed by or under a Constitutional Law or an Act of the Parliament.

• (3) In carrying out its function under Subsection (1)(b), the Public Services Commission—
  • (a) shall take into account the government policy on a particular matter when advising the National Executive Council and the other authorities responsible for those services; and
  • (b) shall not have any power to direct or control a State Service or the services of other governmental bodies.

• (4) The Public Services Commission shall, in respect of each year, prepare and forward to the Speaker for presentation to the Parliament, a report on the advice it has given during the year to the National Executive Council or other authorities in accordance with Subsection (1)(b) indicating in particular the nature of the advice given and whether or not that advice was accepted.

192.Note-XLIV Independence of the Commission.

The Public Services Commission is not subject to direction or control when carrying out its function under Section 191(1)(a) (functions of the Commission).

193. Appointments to certain offices.

• (1) This section applies to and in respect of the following offices and positions:—
  • (a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and
  • (b) the offices of the members of the Boundaries Commission; and
  • (c) the office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and
  • (d) the offices of the persons (including members of boards or commissions) responsible for the administration of any of the State Services; and
  • (e) the office of Commissioner of Police; and
  • (f) the office of Commander of the Defence Force; and
  • (g) the office of Secretary to the National Executive Council; and
  • (h) such other offices and positions as are prescribed by an Act of the Parliament for the purpose,
• other than the offices of the members of the Public Services Commission.

• (2) All appointments (whether temporary or substantive) to offices to which Subsection (1)(b), (c), (e) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee, and a report concerning each of them shall be given to the Parliament by the responsible Minister as soon as possible after it has been made.

• (3) All appointments (whether temporary or substantive) to which Subsection (1)(a), (d), (f) and (g) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission.

• (4) An Act of the Parliament may make provision for and in respect of a temporary appointment to an office to which this section applies until such time as it is practicable to make an appropriate substantive appointment in accordance with Subsection (2).

194. "Personnel matters".

In this Division, "personnel matters" means decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer, suspension, disciplining or cessation or termination of employment (except cessation or termination at the end of his normal period of employment as determined in accordance with law), or otherwise.

Division 3.—The State Services Generally

Division 3.—The State Services Generally.

195. Organization, etc., of the State Services.

Subject to this Part, Acts of the Parliament may make provision for or in respect of the State Services, and in particular for and in respect of—

• (a) the structures and organizations of the State Services; and
• (b) the employment of persons in the State Services; and
• (c) the terms and conditions of appointment to, and of employment in, the State Services.

Division 4.—Special Provisions in Relation to the Police Force

Division 4.—Special Provisions in Relation to the Police Force.

196. Control of the Police Force.

• (1) The Police Force is subject to the control of the National Executive Council through a Minister.

• (2) The Minister has no power of command within the Police Force, except to the extent provided for by a Constitutional Law or an Act of the Parliament.

197. Functions of the Police Force.

• (1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—
  • (a) to preserve peace and good order in the country; and
  • (b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

• (2) Insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.

198. Commissioner of Police.

There shall be, within the Police Force, an office of Commissioner of Police, who shall be responsible for the superintendence, efficient organization and control of the Force in accordance with an Act of the Parliament.

199. Other forces.

There shall be only one Police Force in Papua New Guinea, but this section does not prevent—

• (a) the creation of reserve or special forces, or other similar forces (by whatever name known); or
• (b) the creation of special bodies, or the authorization of persons other than members of the Police Force, for the administration or enforcement of particular laws; or
• (c) the conferring of police powers on persons who are not members of the Police Force,

by or under an Act of the Parliament.

Division 5.—Special Provisions in Relation to the Defence Force

Division 5.—Special Provisions in Relation to the Defence Force.

200. Raising unauthorized forces.

• (1) It is strictly forbidden to establish, organize, equip, train or take part in or associate with a military or para-military force, or to organize or take part in military or para-military training, except such as is provided for by this Constitution, or to plan, prepare for or assist in the raising or training of such a force or in such training.

• (2) Subsection (1) does not prevent—
  • (a) the establishment of a reserve, auxiliary or special force (by whatever name known) as part of the Defence Force; or
  • (b) the establishment of civilian components of the Defence Force, or the establishment or recognition of non-combatant units or organizations within, attached to or associated with the Defence Force,
• in accordance with an Act of the Parliament.

• (3) An Act of the Parliament may provide that Subsection (1) does not apply to the armed forces of any other country specified in or under the Act, or to the civilian components of, or to the non-combatant units or organizations whether attached to or associated with such forces.

201. Control of the Defence Force.

• (1) There shall be no office of Commander-in-Chief of the Defence Force, whether honorary or otherwise.

• (2) The Defence Force is subject to the superintendence and control of the National Executive Council, through the Minister responsible for the Defence Force.

• (3) No serving member of the Defence Force may be the Minister responsible for the Defence Force.

• (4) The Minister responsible for the Defence Force shall not use any military rank or title, and, except to the extent provided for by Constitutional Law or an Act of the Parliament, has no power of command within the Defence Force.

• (5) There shall be—
  • (a) within the Defence Force, an office of Commander of the Defence Force, who shall be the principal military adviser to the Minister responsible for the Defence Force on matters relating to the Defence Force; and
  • (b) within the National Public Service, an officer of the Service, who shall be the principal civilian adviser to the Minister on matters relating to the Defence Force,
• and each of whom shall have such other powers, functions, duties and responsibilities as are prescribed by or under an Act of the Parliament.

202. Functions of the Defence Force.

The functions of the Defence Force are—

• (a) to defend Papua New Guinea and its territory; and
• (b) to assist in the fulfilment by Papua New Guinea of its international obligations; and
• (c) to provide assistance to civilian authorities—
  • (i) in a civil disaster; or
  • (ii) in the restoration of public order and security on being called out in accordance with Section 204 (call-out in aid to the civil power); or
  • (iii) in accordance with an Act of the Parliament during a period of declared national emergency under Part X. (emergency powers); and
• (d) to perform, as directed, functions and services of a civil nature so as to participate to the maximum in the task of national development and improvement,

either within the country or outside it, in accordance with this Constitution and Acts of the Parliament.

203. Application of general law.

Since it is necessary that the Defence Force and the members of the Defence Force have no special position under the law except to such extent as is required by the nature of the Force as a disciplined force and its peculiar functions, duties and responsibilities, it is hereby declared that, except as is specifically provided by a Constitutional Law or an Act of the Parliament, the Defence Force and the members of the Defence Force are subject to all laws in the same way as other bodies and persons.

204. Call-out in aid to the civil power.

• (1) The Defence Force or a part of the Defence Force may be called out to perform functions under Section 202(c)(ii) (functions of the Defence Force) only by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.

• (2) When called out in accordance with Subsection (1), the Defence Force or a part of the Defence Force—
  • (a) does not have, and shall not be given, any power or protection that would not be possessed by the Police Force or the members of the Police Force in similar circumstances; and
  • (b) shall support the Police Force for so long and so far as is necessary to enable the Police Force to restore public order and security; and
  • (c) in so doing shall act only on, and to the extent specified in, a request by the appropriate civilian authority in accordance with an Act of the Parliament; and
  • (d) shall cease to act in support of the Police Force when directed to do so by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.

205. Active service.

• (1) Except for the purposes of defence against attack, the Defence Force or a part of the Defence Force—
  • (a) may be ordered on active service only by the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and
  • (b) may be sent out of the country only by the authority of and on conditions imposed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.

• (2) The Defence Force or a part of the Defence Force may not be ordered on, or committed to—
  • (a) active service; or
  • (b) an international peace-keeping or relief operation,
• outside the country without the prior approval of the Parliament.

• (3) If practicable before, and in any event as soon as practicable after, action is taken under Subsection (1) or the Defence Force becomes engaged in war or warlike operations, or in defence against attack, the Parliament shall be advised of the action taken, or likely to be taken, and of the reasons for it, and shall be given an opportunity to debate the matter.

• (4) Subsection (1)(b) does not prevent—
  • (a) the Defence Force or a part of the Defence Force being sent out of the country for normal administrative or training purposes; or
  • (b) any action that is required or permitted by an Act of the Parliament for the purposes of enforcing a law.

206. Visiting forces.

• (1) An Act of the Parliament may make provision for or in respect of—
  • (a) the presence in the country, by arrangement with the National Executive, of forces of another country; and
  • (b) the presence in another country of the Defence Force or a part of the Defence Force,
• and in particular for or in respect of—
  • (c) the concession to courts or tribunals, and to service authorities, of the other country of jurisdiction over members of its forces (other than citizens of Papua New Guinea) in relation to some or all civil and criminal matters; or
  • (d) the assertion of the exclusive jurisdiction of courts and tribunals of Papua New Guinea, and of Defence Force authorities, over members of the Defence Force in another country.

• (2) Except in relation to its own members or to civilian components of, or civilians accompanying, the force, a visiting force of another country shall not be used in the country in any role in which the Defence Force may not be used, and accordingly any law that restricts the role, powers or functions of the Defence Force or of members of the Defence Force applies equally to visiting forces and members of visiting forces.

• (3) A law made for the purposes of Subsection (1) may apply, in whole or in part, to civilian components of, or civilians accompanying, the Defence Force or a part of the Defence Force, or to civilian components of, or civilians accompanying a visiting force.

Division 6.—Special Provisions relating to Disciplined Forces

Division 6.—Special Provisions relating to Disciplined Forces.

207. Definition of "disciplined force".

• (1) The following are, for the purposes of this Division, disciplined forces:—
  • (a) the Police Force; and
  • (b) the Defence Force; and
  • (c) any other force or service that—
    • (i) is established by or under a statute; and
    • (ii) is declared by an Organic Law to be a disciplined force for the purpose of this Division.

• (2) For the purposes of any Organic Law made for the purposes of this Division, a person acting, as required or authorized by law, under the direction of a member of a disciplined force, for the purpose of assisting in the performance of the functions or duties of the member or of the force, shall be deemed to be a member of that force.

208. Protection of members of disciplined forces.

• (1) Because of the special nature of disciplined forces and of their operations, it is a primary duty of their members to obey lawful orders, and accordingly an Organic Law shall make special provision for relieving a member of such a force from responsibility for the consequences of—
  • (a) carrying out a lawful order; or
  • (b) carrying out an order which he honestly, and on reasonable grounds believed to be a lawful order, in which case the onus of establishing his belief and the reasonable grounds on which it was based, shall be upon him.

• (2) Without derogating any other right to compensation from an authority responsible for the disciplined force concerned, an Organic Law made for the purposes of Subsection (1) shall make provision for any liability to make compensation that would otherwise lie on a member of a disciplined force to lie on the authority responsible for the force.

Notes to amendments

footnotes to amendments:

Note-XLII

• Section 190 was repealed and replaced by Constitutional Amendment No. 8—Public Services Commission.Note-XLII

Note-XLIII

• Sections 191(1)(c) and 191(2) were amended by Constitutional Amendment No. 3—Provincial Government (Consequential Amendments).
• Section 191 was repealed and replaced by Constitutional Amendment No. 8—Public Services Commission.Note-XLIII

Note-XLIV

• Section 192 was repealed and replaced by Constitutional Amendment No. 8—Public Services Commission.Note-XLIV

References

• full PNG constitutional text; from Pacific Law Library.