PNG Constitution 18 - 31

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Subdivision C. – Constitutional Interpretation.

18. ORIGINAL INTERPRETATIVE JURISDICTION OF THE SUPREME COURT.

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

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

19. SPECIAL REFERENCES TO THE SUPREME COURT.

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

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

(3) The following authorities only are entitled to make application under Subsection (1):–

(a) the Parliament; and
(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and
(c) the Law Officers of Papua New Guinea; and
(d) the Law Reform Commission; and
(e) the Ombudsman Commission; and
(ea) a Provincial Assembly or a Local-level Government; and
(eb) a provincial executive; and
(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and
(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to–

(a) the form and contents of questions to be decided by the Court; and
(b) the provision of counsel adequate to enable full argument before the Court of any question; and
(c) cases and circumstances in which the Court may decline to give an opinion.

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

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

20. UNDERLYING LAW AND PRE-INDEPENDENCE STATUTES.

(1) An Act of Parliament shall–

(a) declare the underlying law of Papua New Guinea; and
(b) provide for the development of the underlying law of Papua New Guinea.

(2) Until such time as an Act of Parliament provides otherwise–

(a) the underlying law of Papua New Guinea shall be as prescribed in Schedule 2 (adoption, etc., of certain laws); and
(b) the manner of development of the underlying law shall be as prescribed by Schedule 2 (adoption, etc., of certain laws).

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

21. PURPOSE OF SCHEDULE 2.

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

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

Division 4. – General.

22. ENFORCEMENT OF THE CONSTITUTION.

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

23. SANCTIONS.

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may–

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or
(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

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

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

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

24. USE OF CERTAIN MATERIALS AS AIDS TO INTERPRETATION.

(1) The official records of debates and of votes and proceedings–

(a) in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and
(b) in the Constituent Assembly on the draft of this Constitution,

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

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

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

PART III. – BASIC PRINCIPLES OF GOVERNMENT.

Division 1. – National Goals and Directive Principles.

25. IMPLEMENTATION OF THE NATIONAL GOALS AND DIRECTIVE PRINCIPLES.

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

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

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

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

Division 2. – Leadership Code.

26. APPLICATION OF DIVISION 2.

(1) The provisions of this Division apply to and in relation to–

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

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

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

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

27. RESPONSIBILITIES OF OFFICE.

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not–

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(b) to demean his office or position; or
(c) to allow his public or official integrity, or his personal integrity, to be called into question; or
(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

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

(3) It is the further duty of a person to whom this Division applies–

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

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

(5) A person to whom this Division applies who–

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

is guilty of misconduct in office.

28. FURTHER PROVISIONS.

(1) For the purposes of this Division, an Organic Law–

(a) may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and
(b) shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and
(c) shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and
(d) may prescribe specific acts that constitute misconduct in office; and
(e) may create offences (including offences by persons to whom this Division applies and offences by other persons); and
(f) shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and
(g) shall establish independent tribunals that–

(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and
(ii) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and

(h) may make any other provision that is necessary or convenient for attaining the objects of this Division.

(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that–

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and
(b) public policy and the public good do not require dismissal,

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

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

(3) For the purposes of Subsections (1)(g), (1A) and (2), “the appropriate authority”–

(a) in relation to–

(i) a person holding an office referred to in Section 26(1)(a), (b), (c) or (d) (application of Division 2); or
(ii) a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

means the Head of State; and

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

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

(5) Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and–

(a) no such proceedings are a bar to any other proceedings provided for by law; and
(b) no other proceedings provided for by law are a bar to proceedings under that paragraph.

29. PROSECUTION OF MISCONDUCT IN OFFICE.

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

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

30. OTHER AUTHORITY.

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

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

31. DISQUALIFICATIONS ON DISMISSAL.

(1) A person who has been dismissed from office under this Division for misconduct in office is not eligible–

(a) to election to any elective public office; or
(b) for appointment as Head of State or as a nominated member of the Parliament; or
(c) for appointment to a provincial legislature or provincial executive (including the office of head of a provincial executive), or to a local-level government body,

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

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

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