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[F.A.Q.] [Help]PNG Constitutional Planning Committee Report 1974 |
Constitutional Planning Committee Report 1974
CHAPTER 8
1. In Papua New Guinea there have always been traditional peaceful means of resolving disputes and doing what is right in conflict situations, according to traditional notions of justice. With the establishment of modern institutions in our country, the courts of justice, as developed elsewhere, are gradually becoming generally acceptable institutions in our society. The advent of the Constitution and Independence provides the opportunity for these courts, appropriately modified to suit our needs, to become a vital part of the foundations on which our people seek freedom, fulfilment and total development, both personal and national.
2. The courts constitute the third pillar of the government of a country. They have a different function from those of the executive and the legislature, namely that of peacefully determining conflicts that arise between individuals; between different levels of government (in some countries); and between individuals and government; in accordance with law and justice. They may also have an important advisory function, through which they can assist in the avoidance of potential disputes. In countries which have a written Constitution the highest courts often have the important task of deciding matters relating to the interpretation and enforcement of the Constitution. In this unique role courts should be key instruments through which peaceful development in a society can take place.
3. It is a fundamental principle of any free country that the men and women who sit to hear and determine disputes that come before them as members of the judiciary should not be improperly influenced to make decisions for or against any particular person or group. The Committee has made a number of recommendations in this Chapter, and elsewhere in this report, designed to ensure that people of Papua New Guinea are governed by law, not according to the whims of powerful individuals or groups. That aim, in fact, underlies the very idea of having a constitution at all.
4. We believe that the cardinal principle that the courts should be independent of the legislature and the executive must be firmly established under our Constitution. Those who legislate and those who exercise executive power should not also be responsible for dispensing justice in our new nation. The people who have that responsibility, namely judges and magistrates, should be sufficiently secure in their positions so that they are able to make their decisions without fear of personal repercussions.
5. The courts do not, however, exist in a vacuum. Like other institutions of the government of a country they are caught up in political realities, and often their decisions have important political consequences.
6. In carrying out their judicial role ... magistrates must take full account of the goals of the society in which they live; they ...tuned to the wishes of that society and to that extent must be politically conscious (although not party politically conscious). In Chapter 2, "National Goals and Directive Principles", we have spelt out what we believe to be the goals of Papua New Guinea and we have recommended that our judges uphold the Constitution and interpret the laws made under it in the spirit of those goals and principles.
7. At the same time, the judiciary has a duty to protect the rights of the individual and minority groups: its job is not simply to reflect the will of the Government of the day. The judges will be particularly concerned with this role in deciding cases which arise under the proposed provisions concerning human rights in Chapter 5.
8. These two principles may well be contradictory in a given situation and the courts are therefore faced with the need to make a satisfactory compromise between them.
9. Let us take the example of a situation in which the existing law is either not clear, or alternatively, there appears to be no law which covers the case. In these circumstances, we believe the judge or magistrate who is hearing the case should use judicial ingenuity to do justice as between the parties, taking full account of the national goals and principles of policy as well as the rights of the individual.
10. We do not underestimate the difficulties with which judges and magistrates are faced. They must on the one hand avoid appearing to encroach upon the role of the legislature or to act as a brake on the executive government's legitimate efforts in trying to promote development; yet on the other hand they must endeavour to ensure that an injustice is not done in a particular case, and that the rights of individuals or minority groups are not unreasonably overridden.
11. These problems are in the nature of the judicial role, but they are particularly acute in an emerging state such as Papua New Guinea. We believe that our recommendations on the judiciary will enhance the independent status which courts in Papua New Guinea now have, and that our judges and magistrates will be equal to the task which faces them. The method of appointment of judges and magistrates which we propose, is designed to promote the involvement of all three arms of government - the executive, legislature and judiciary - in this important procedure. We believe that this mechanism will encourage members of all three arms to feel part of the nation's overall system of government. We consider that there is good reason to believe, therefore, that Papua New Guinean men and women of integrity and ability will welcome appointment to judicial office, thereby assisting in safeguarding the rights, liberties and freedoms which belong to the people as we move ahead in all aspects of our development.
12. The emergence of Papua New Guinea as a sovereign state should, we recommend, be marked by cutting the legal ties between our judicial system and that of Australia. We propose that a new Supreme Court be the final court of appeal for Papua New Guinea. This recommendation has very strong support from our people, who see it as an important benefit of independence to have final judicial decisions made within the country. This step should enable the body of law which is developing in Papua New Guinea to reflect, to a much greater degree than at present, our own values and circumstances. That evolutionary process will occur most rapidly if the principle that past decisions of the highest courts bind courts at a lower level in the judicial hierarchy (and arguably the highest courts themselves), is applied with maximum flexibility.
13. We are concerned that justice should be done throughout the country, and that our people, wherever they may be, should have ready access to the courts and to legal assistance. The system of administration of justice cannot function effectively if it is only people of wealth or status who are able to afford legal representation in the courts, or who are able to travel to places where lawyers are located. We have therefore recommended the establishment of the office of Public Solicitor as an independent constitutional office. We would hope that steps will soon be taken to establish branches of his office in additional centres besides Port Moresby and Rabaul.
14. To ensure that prosecutions for criminal offences are not subject to improper political interference, we have recommended the establishment of the office of Public Prosecutor. The person who is appointed to this position will also be an independent constitutional office-holder.
15. We recognize that it is important for the Public Prosecutor to take due account of public policy in exercising his discretion to prosecute or to discontinue prosecutions. However, the final decisions on prosecutions should be made by him in the exercise of his independent judgement.
16. As a means of ensuring that the executive power of mercy is not used in an arbitrary way, we have recommended the establishment of an Advisory Committee on the Power of Mercy whose function it should be to give advice to the Executive on most matters in respect of which that power may be used.
17. We have provided also for the highest court in the country, the Supreme Court, to have exclusive jurisdiction to resolve most disputes concerning provisions of the Constitution, and to give advisory opinions on many constitutional questions.
18. As we believe that justice should be administered in accordance with the ideas of our people, we have decided to emphasize this by recommending that justice be administered in the name of the people.
A. THE JUDICIARY
19. Ordinary citizens tend to come into direct contact with the courts only in times of trouble; when they are accused of having done something wrong themselves or when a wrong has been done to them. As we have said above, it is a function for the courts to apply general laws and principles of justice in particular cases. As part of our first recommendation we propose that this function be performed by the Judiciary.
20. Members of our Judiciary should have integrity, appropriate professional qualifications and experience. They should be in a position to withstand outside pressures in exercising their judgement, yet be responsive to the needs and wishes of our society. They should pledge themselves in public to uphold our country's Constitution in accordance with the national goals and directive principles of policy.
21. The foundation of our legal system is and will remain the good sense and social organization of our people. The system of village courts which the House of Assembly has approved should provide a suitable means of developing our traditional judicial institutions and of significantly influencing the evolution of the imposed court system and the common law which it applies.
22. At the apex of our court system should be a new Supreme Court comprising three judges, and a National Court of Justice, in which a single judge will sit. These courts will replace the present Full Court for the Supreme Court and the Supreme Court respectively.
23. We recommend that Parliament should be able to provide for additional lower courts as necessary to handle disputes which would not be appropriately dealt with in either the highest courts or in the village courts. The present District Courts and Local Courts come into this category.
24. The highest court in the country should be the Supreme Court, which should be the final appeal court for all cases heard under Papua New Guinean law. We believe that the provision of a right to appeal against judgements of our courts to foreign courts would undermine our sovereignty as a nation, and would perpetuate the incorporation in our legal system of values alien to our own. Submissions we have received have firmly opposed the continuance of appeals to a foreign court such as the High Court of Australia.
25. In its general jurisdiction the Supreme Court should hear cases that have been dealt with first in the National Court or a lower court other than a village court. In carrying out this function it would hear appeals against judgements given by these courts in both criminal and civil cases.
26. We propose also, that the Supreme Court should have a key role in resolving constitutional dispute, our recommendations in this regard being included in Part E of this Chapter - "Resolution of Constitutional Questions".
27. The Supreme Court should consist of three judges of the National Court, presided over by the Chief Justice or his Deputy or the most senior judge sitting as a member of the Court for a particular case. Clearly, any judge who has heard a case in the National Court should not be eligible to sit on the Supreme Court to hear an appeal against an earlier verdict of his own.
28. Taking account of the likelihood that in the long term, when there is much appellate work to be done by the Supreme Court, Parliament may properly wish to appoint some of our most able National Court judges as full-time Supreme Court Judges, we have made an appropriate recommendation to allow for this situation.
29. There should be a National Court of Justice consisting of the Chief Justice, the Deputy Chief Justice and other judges, with broad power to dispense justice throughout the country, and also in cases which involve a law of this country but arise outside Papua New Guinea. We have provided for the National Court's jurisdiction to be altered by ordinary law (provided that law specifically refers to the jurisdiction for the court), as we believe it is important not to unduly limit the power of Parliament to make changes in the jurisdiction for the highest courts, as well as of subordinate courts. We also wish to maximise the scope for a Law Reform Commission to recommend significant changes in the present judicial system if it thinks they are necessary.
30. We have recommended that these courts have the powers of superior courts of record, that is, the powers which the present Full Court of the Supreme Court and Supreme Court now have.
31. As we said earlier Judges should, we believe, be persons of integrity who are professionally qualified as lawyers, and have adequate legal experience. We consider that the qualifications of judges should be set by law rather than in the Constitution itself, so that they can be changed by parliament as circumstances alter. For example, when more of our own people have had a number of years experience as lawyers, the requirements concerning legal experience might be made more rigorous.
32. We recommend that non-citizen judges should be lawyers who have had at least five years experience in the practice of law either in Papua New Guinea or in another country with a similar legal system. Judges from countries with legal systems similar to that in Papua New Guinea should also be eligible for recruitment as judges, as should citizens who hold a law degree and have had at least five years experience as a Resident Magistrate.
33. Some citizens may graduate from one of our country's universities, but not practice law initially. They, too, should be eligible to become judges - six years after graduating, provided that they have been practising law for at least three years after they have obtained full admission to practise as lawyers. These proposed qualifications for judges give greater scope for appointing Papua New Guineans to the bench of the Supreme Court and the National Court than do the present provisions of the Papua New Guinea Act. Non-citizens would be eligible for appointment as judges on the same basis as at present.
34. Because Papua New Guinean lawyers were not trained until very recently, we will continue to rely on foreign judges for some years to come. Whilst this situation might be acceptable in a pre-independence period, it will obviously not be consistent with the principle of our national sovereignty after Independence.
35. We already have a number of qualified Papua New Guinean lawyers with basic training in all the major branches of the law and who also possess a good sense of justice.
36. Some of these lawyers should, we believe, be appointed as assistant judges after three years of experience in the practice of the law. These appointees should be seen partly as trainee judges under their more experienced foreign brother judges, but more significantly, these appointments should represent a deliberate policy to have our own people control the courts of our country soon after Independence.
37. We recognize the value of long experience in the practice of law. At the same time we are very much aware that the majority of people who go before the courts are the indigenous people. It is only right that our own lawyers should begin to adjudicate among our people in the highest courts if the judicial process of settling disputes is to gain legitimacy.
38. Our own people would be the best judge where the cultures an customs of Papua New Guineans are concerned. Much of the present English common law has evolved over many centuries. Our common law must begin to evolve and our own judges are the best people to promote its development. These reasons have led us to recommend that the assistant judges play a more important role than might otherwise be the case. The assistant judges should participate fully in the court process, subject of course to the overriding decision of the judge with whom the assistant judge is sitting in the event of a difference of opinion on a question of law. As to questions of fact, we believe careful consideration should be given by the legislature to maximizing the effectiveness of assistant judges' participation, particularly in criminal cases. The assistant judges should sit with different judges in different court cases to gain wide experience and to benefit from the experience of all the judges. The assistant judges should be eligible for full appointments on proven ability.
39. The Chief Justice will be the head of the judiciary. On certain important occasions, such as the calling together of a new National Parliament and the swearing-in of the Speaker, the Chief Justice will play a significant ceremonial role under our recommendations in Chapter 6, "The Legislature". He should also be responsible, in consultation with the other judges, for the day-to-day administration of the business of the Supreme Court and of the National Court.
40. The Chief Justice should be a man of undoubted integrity and professional standing. Because his decisions and actions are likely to have such a great influence upon public attitudes towards the legal system and the judiciary, and upon the way in which laws are applied, it is of great importance that he be accepted by all major political groups as being clearly impartial. He should nevertheless, be responsive to the circumstances of Papua New Guinean society.
41. We recommend that the Prime Minister should initially consult the Minister responsible for justice on a proposed appointment of a Chief Justice. The Prime Minister should then consult the National Executive Council and the Permanent Parliamentary Committee responsible for justice, jointly, before making the appointment. Under this procedure the opportunity is given initially to the Minister responsible for justice, and later to the Permanent Parliamentary Committee jointly with members of the National Executive Council, to express views as to the merits of proposed (or possible) appointees. This procedure should, we believe, ensure that the appointment of a person as Chief Justice will have broad political support.
42. The selection of the Deputy Chief Justice, other judges and magistrates also requires a careful assessment of the professional ability and individual character of potential appointees. Particularly in a developing country such as Papua New Guinea, judges should normally be not unsympathetic to the executive and legislative branches of government, and as we have indicated above, always have a real appreciation of the circumstances of the country in which they work, if their judgements are to be just.
43. We have therefore recommended that judges (including the Deputy Chief Justice) should be selected by a body composed of people who are likely to take into account all of these factors. We do not believe that judges should be chosen simply by the Government of the day in consultation with the judiciary though of course the act of appointing a judge is, in fact, an executive one, and in most countries, including Australia and Britain, the appointment of judges of the higher courts is made by the executive alone. As well as the views of the executive and the judiciary, opinions expressed from the standpoint of people with a variety of backgrounds, experience and values should, we believe, be brought to bear on the choice of those who are to become judges.
44. The power to choose judges should, we believe, be vested in a body chaired by the Minister responsible for justice, which should be named the "Judicial and Legal Service Commission". Certain other powers and functions should also be vested in the Commission under the Constitution and by law. It should comprise the following five people -
� the Minister responsible for Justice, who would be Chairman;
� the Chief Justice;
� a lawyer of the National Court, nominated by the Minister responsible for justice;
� the Chief Ombudsman (who would be the head of the Ombudsman Commission which, in Chapter 11, we propose should be established); and
� a lawyer nominated by the Permanent Parliamentary Committee responsible for justice.
45. This combination of people should ensure that persons chosen as judges are thought to be just by people whose concern is the proper administration of justice, the representation of public opinion, and the protection of the rights of citizens both as individuals and groups; that they are well regarded as lawyers by the judiciary and by their professional colleagues; and that they are sympathetic to the cultures and values of Papua New Guinean society.
46. We would expect that, before attending a meeting of the Commission at which a person is to be chosen as a judge, the Minister responsible for justice would informally consult the Prime Minister and possibly some of his National Executive Council colleagues also, to ascertain their views as to the suitability of potential appointees. Thus the Government's views, which we believe to be important in this context, should be adequately represented in the Commission.
47. Our recommendations as to the composition of the proposed Judicial and Legal Service Commission constitute a middle course between the various systems of appointing judges by politicians alone (as in most countries of the world) on the one hand, and formally excluding politicians from the appointment process by placing it in the hands of members of the judiciary and the Chairman of the Public Service Commission, (as in a few states of the Commonwealth) on the other.
48. Our proposed Commission is somewhat similar to the authority in Israel which is responsible for appointing judges. It too is chaired by the Minister for Justice, but is a larger body, comprising nine members of whom two are members of the government, two are parliamentarians, three are judges, and the other two are practising lawyers.
49. We have noted that of the Judicial Service Commissions established in certain other new Commonwealth states, some of which have two or even three judges (or former judges) as members, there has been a significant trend, since they were established at Independence, either for their powers of appointment to be substantially reduced so that they now appoint magistrates only, not judges, or for their independent status to be eroded. This fact has reinforced our view that politicians representing both the executive and the legislature should have a direct say in the appointment of judges, particularly when the judges who are appointed will be deciding major constitutional issues. If politicians do not have this influence we consider it less likely that they will accept judicial decisions which they regard as politically unpopular or as increasing the limitations on their own powers.
50. A further serious disadvantage of excluding politicians from the process of appointing judges is that it is likely to increase the danger (which is almost always present in emerging states), of a serious break-down in communication between the judiciary and the other arms of government. Such a situation might result in the very independence of the judges, which the people very much want to see established, being threatened.
51. In Britain where the independence of the judiciary is well established, there is a strong link between all three arms of government - the legislature, the executive and the judiciary - through the Lord Chancellor, who is a member of the legislature (the House of Lords) a member of cabinet, and the head of the judiciary. We do not propose a system which goes so far in establishing this link but we believe the British precedent is a useful one to be taken into account.
52. In addition to its power to appoint judges, we believe the Commission should have power to appoint other constitutional office-holders who have an important role in the administration of justice, namely -
� the Public Prosecutor;
� the Public Solicitor; and
� the Chief Magistrate.
53. Our recommendation that the above constitutional office-holders be appointed by the Commission is based on the fact that each of them must have both legal qualifications, and judicial or professional independence.
54. We consider that the Commission should have power also to appoint such other office-holders as are specified by law. Normally we would anticipate that these office-holders would have legal qualifications, but we have not excluded the possibility of a person without a law degree being so appointed.
55. In accordance with two of the basic principles which we have adopted in regard to executive power - firstly, that emphasis should be placed on collective leadership, and, secondly, that the formal power of appointment should generally be given to the body or person that has the substantive power to choose appointees - we recommend that members of the Judicial and Legal Service Commission be appointed by the National Executive Council, in accordance with the Constitution.
56. Three of the members of the Judicial and Legal Service Commission would be members by virtue of the other offices they hold, namely the Minister for Justice, the Chief Justice and the Chief Ombudsman. We consider that the professional nominee of the Minister responsible for justice should hold office for the duration of the term of the Minister who has appointed him, whilst the nominee of the First Parliamentary Committee should hold office (and might be successively re-nominated) for a term of the National Parliament.
57. We have recommended that a Magisterial Service consisting of the Chief Magistrate and other full-time magistrates be established, and that responsibility for ensuring the independence and effective functioning of the Service be vested in the Judicial and Legal Service Commission. This should ensure that full-time magistrates, (who now carry out a substantial proportion of the judicial work in Papua New Guinea), have their independence safeguarded and also are given adequate opportunities for promotion within a career service.
58. We recommend the establishment of the office of Chief Magistrate. To be qualified for appointment to this office a person must have the same qualifications as those for a judge.
59. We propose that the Chief Magistrate be an additional member of the Judicial and Legal Service Commission for the purposes of appointing other full-time magistrates and determining general policy directives in relation to the Magisterial Service.
60. The Chief Magistrate should also be the person who has day-to-day responsibility for the efficient functioning of the Magisterial Service, carrying out any direction by the Commission in relation to the Service.
61. His term of office and protection against arbitrary suspension or removal from office should be the same as for a judge.
62. At least once a year the Chief Justice should forward a report to the Speaker on the functioning and administration of the judiciary (including the magistracy) for tabling in Parliament. The basic requirements for this report are set out in detail in our recommendations.
63. In order to emphasize the need to plan for the appointment of Papua New Guineans as judges, we recommend that a target-date be set for the localization of the judiciary - ten years after the Constitution comes into force. From then on, persons who are not citizens of Papua New Guinea should not be appointed as judges except with the approval of the National Executive Council.
TENURE OF JUDGES
64. We have said before that we believe that judges should be independent. They should feel sufficiently secure to be able to resist pressures from the government as well as from other powerful groups and individuals.
65. At the same time, we believe that judges should not be insulated from the society in which they work. The very name of the National Court of Justice implies that we believe that the courts should be socially aware, truly national, and able to interpret the law with a sense of justice which is in accordance with Papua New Guinean values.
66. We recommend that judges who are citizens should be appointed for terms of ten years. At the end of a term, each judge should either be re-appointed or offered an appointment to another office in public employment on a salary and conditions not less favourable than those he received at the end of his term of office as a judge.
67. In this way, we hope to provide individual judges with the personal security to be truly independent of both the government and other powerful groups that might seek to influence their judgements. At the same time, their position would periodically be reviewed by a body sensitive to public and professional opinion. They should not then become unduly status-conscious or remote from the society to which they should be ultimately responsible.
68. For the first few years after the Constitution comes into force, our courts will face a number of difficult problems. There will be relatively few citizens qualified for appointment as judges - and they will probably be quite young. We therefore recommend that the Judicial and Legal Service Commission be given the opportunity to review the professional competence and general suitability of its first nominees fairly soon after they are appointed. For the first ten years after the Constitution comes into force, we believe that citizen judges should be appointed for an initial term of three years (as is also recommended in respect of other constitutional office-holders and top public servants), after which they should be eligible to be re-appointed for further terms of ten years.
69. We recommend that a person who is not re-appointed at the expiration of an initial three-year term should be offered another position in public employment to which is attached an appropriate salary and other conditions of service as prescribed by law. This proposal will enable Parliament to fix a reasonable salary level for persons who are being offered these positions, thus taking account of the fact that some of these former judges may have been in private practice before being appointed to the Bench.
70. As is proposed in relation to other constitutional office-holders, the retirement age for judges is fifty-five years, with provision being made for an extension fo the term of office of individual judges for up to five years to be granted by the person or body that made the appointment. The reasons for setting the retirement age at fifty-five years are explained in Chapter 14, "General".
71. We have made a specific recommendation to enable a judge who reaches retirement age to remain in office in order to give judgement in a case before him which has not been concluded at the time he reaches retirement age.
72. Protection of the salary and other conditions of service of judges is provided under our recommendations in regard to all constitutional office-holders, in Part A of Chapter 14, "General".
73. There may be times when it is difficult to fill promptly a vacant judgeship; or when a judge is unable to perform his duties; or when there is temporarily too much work before the National Court or the Supreme Court for the existing judges to handle. In such circumstances, the Judicial and Legal Service Commission should be able to appoint an acting judge for a term of up to twelve months. To provide maximum flexibility, we recommend that qualified persons who are over the retirement age for judges may be appointed acting judges. They should not be over sixty-five years of age however.
74. We recommend that the oath or affirmation which a person appointed a judge makes on taking office should involve undertaking before the Prime Minister to uphold, interpret and apply the Constitution and administer justice impartially in accordance with all of our country's laws. We would hope that by taking such an oath judges will be encouraged to interpret the law in a manner which is in keeping with the spirit of the Constitution, rather than in a legalistic way.
75. The grounds upon which constitutional office-holders should be disqualified from holding office, and the way in which they should be removed are dealt with in general terms in Part A of Chapter 14.
76. We believe that judges should be removed from office before their term of office is completed only in the most serious of circumstances. Their fixed term, and assured conditions of employment after their term has expired, are a vital guarantee of their judicial independence.
77. As is the case with other constitutional office-holders there are, however, certain circumstances in which a particular judge should not be allowed to continue in office. These include situations in which a judge is guilty of misbehaviour (including gross negligence and breach of the Leadership Code), or is physically or mentally incapable of performing his duties. In such circumstances, the Judicial and Legal Service Commission should be able to suspend from office a judge other than the Chief Justice, pending an investigation by a tribunal of three judges chosen by he Commission. We have been concerned to ensure that this tribunal of three judges not only is impartial but is seen to be impartial. We have therefore recommended that judges from a court of unlimited jurisdiction in a country which has a legal system similar to that of Papua New Guinea and former judges of the present Supreme Court, as well as judges (and former judges) of the National Court, should be eligible for appointment to the tribunal.
78. The Judicial and Legal Service Commission should then either allow a judge to remain in office, or remove him, as the tribunal recommends. The Commission should also be able, in its discretion, to revoke suspensions, but in any event a suspension should automatically cease if the tribunal recommends that the judge concerned ought not to be removed.
79. The same provisions should apply in respect of the disqualification, suspension and removal from office of the Chief Justice, except that it should be the Prime Minister who decides whether or not the question of removing him from office ought to be investigated. The Prime Minister should consult the Minister responsible for justice before consulting jointly, the National Executive Council and the Permanent Parliamentary Committee responsible for justice on the suspension of the Chief Justice from office, and also on the appointment of the tribunal of three judges to inquire into each case. The Prime Minister alone should be able to revoke a suspension of the Chief Justice.
80. The Chief Justice should be removed from office, or allowed to continue, as the tribunal of three judges recommends.
81. Judges should be further protected by a constitutional provision prohibiting the abolition of an office of judge while that office is filled.
82. We have recommended that, subject to the Constitution and any law, the judges of the National Court (or a majority of them) may make Rules of Court regarding the procedure of the National Court and the Supreme Court. Notice of the making of these Rules should be published in the Government Gazette, and a copy of them forwarded by the Chief Justice to the Speaker of the National Parliament and to the Minister responsible for justice within fourteen days of publication.
83. We propose that the Speaker shall, when he receives Rules of Court, promptly table them in Parliament. Parliament may disallow them (or part of them) not later than the final day of the meeting following that at which the Rules are tabled.
84. In the course of our deliberations as to the most suitable constitutional provisions in relation to the administration of justice in Papua New Guinea, we have become aware that the present system of Visiting Justices, which is intended to ensure that people are not held in custody except in accordance with law and justice, is not functioning effectively. Delays are occurring in the Executive taking action on reports of Visiting Justices, and in some instances no action is taken.
85. We have therefore recommended that National Court judges should have a significant supervisory role in regard to the work of Visiting Justices, and that the Chief Magistrate should have direct responsibility for it.
86. Judges should be able to deal promptly with cases of improper detention, to release those who for one reason or another should never have been convicted, and to enable the prompt institution of appeals in appropriate cases by waiving time and procedural limitations. These proposals will ensure that justice is done speedily whenever the circumstances warrant.
87. Although we do not recommend that these proposals be incorporated in the Constitution itself, but rather in ordinary legislation, we believe they are of considerable importance, since they vitally concern the liberty of the individual.
88. In making our recommendations on the judiciary, we have stressed the need for the laws made by the National Parliament to be applied in a manner that takes adequate account of conditions in our country. We cannot afford to have our courts take a narrowly legalistic approach if the law is to be justly applied.
89. We believe that many of the laws that will be in force at independence are more appropriate to the circumstances of colonial rule than to a society seeking to achieve the National Goals and Directive Principles recommended in Chapter 2. The need for a thoroughgoing review of our legal system is apparent to all of us. We therefore welcome and support the proposal made by the Minister of Justice that a Law Reform Commission for Papua New Guinea be established soon.
90. We recommend that in order to give adequate scope for localization of the judiciary, non-citizen judges should be appointed for a maximum term of three years. However, to provide flexibility and enable the country to retain the services of able, non-citizen judges we have recommended that all non-citizen judges be eligible for re-appointment.
91. In their submissions to the Committee, the people of Papua New Guinea have expressed their strong support for an independent judiciary that is responsive to their needs. We have tried to embody their views in our recommendations.
B. THE PUBLIC PROSECUTOR
92. It is not generally appreciated that, if a person is suspected of committing a criminal offence, it does not follow automatically that he should be prosecuted. The person who is responsible for making the decision as to whether or not to prosecute, usually a police officer, must use discretion in deciding whether or not to bring criminal proceedings against the suspect.
93. In the ordinary case, the person responsible for launching a prosecution considers the evidence against the person suspected of committing an offence, and decides whether that evidence is sufficient to justify having the person tried in court for the offence. If it is, a prosecution is normally commenced.
94. However, in some cases, wider considerations may be involved. It is not always in the public interest to go through the whole process of the criminal law if, at the end of the proceedings, perhaps because of mitigating circumstances, or because of what the defendant has already suffered, only a nominal punishment is likely to be imposed.
95. In other cases, the offence which has been committed may be a breach of an old law which most people no longer regard as relevant. In this situation also, the person responsible for deciding whether or not to prosecute may reasonably decide that, in the circumstances, it would not be in the public interest to bring proceedings.
96. In common with leaders in many other old and new Commonwealth states and elsewhere, we believe that the person who has final responsibility for commencing, and discontinuing prosecutions in the superior courts has a duty, in deciding whether or not to authorise a prosecution, to ascertain all the relevant facts, including the effect which a particular prosecution, successful or unsuccessful as the case may be, would have upon public morale and order. He should also take into account any other considerations of public policy. For the person responsible for the performance of this important onerous task to be free from improper political pressure, and to be able to act in such a manner that he is seen to be acting justly, we believe he should have independent status which is guaranteed by the Constitution.
97. Accordingly, we have recommended the establishment of a constitutional office known as the "Public Prosecutor". The holder of this office should be specifically made independent by providing that he is not subject to direction or control by any other person or body in exercising constitutional powers and functions.
98. We do not envisage, however, that the Public Prosecutor would completely ignore the views of the Executive in regard to cases which have serious political implications - for example, in the case of an act which might constitute treason. In these situations, we would expect that the Public Prosecutor would consult the Minister responsible for justice, or the Prime Minister, as to the political effects of a decision either to prosecute or not to prosecute. The Public Prosecutor could then take into account the views of the Executive on the public policy aspect of the case when making his own decision as to whether or not to prosecute (or to discontinue a prosecution).
99. To allow a reasonable opportunity for a Papua New Guinean to be appointed to the office of Pubic Prosecutor, we have recommended that to be eligible for appointment a person must have had at least three years practice as a lawyer.
100. We have made provision in Part A for the Public Prosecutor to be appointed by the Judicial and Legal Service Commission.
101. We propose that the Public Prosecutor have power to commence, continue or discontinue any prosecution in any court, but we have enabled Parliament to pass a law that limits the right of the Public Prosecutor to deal with a case which is within the jurisdiction of either a village court or of Defence Force judges. We have recommended that two further specific powers be conferred on the Public Prosecutor, namely -
� the power to take proceedings against any "leader" for breach of a provision in the proposed Leadership Code, (which is set out in Chapter 3, "The Leadership Code"); and
� the power to advise the Commissioner of Police on any criminal matter, either on request or on his own initiative.
102. We have recommended that similar provision should be made for the suspension and removal from office of the Public Prosecutor as is made in respect of judges.
C. THE PUBLIC SOLICITOR
103. In countries such as England and Australia, there is a long tradition of an independent private legal profession, the members of which are supposed to protect the rights of the individual. However, individuals or corporations seeking legal advice or representation in courts of law are expected to pay quite high fees to these private practitioners. While this tradition might be sufficient to meet the needs of those who are able to pay for these services, it has on the whole proved quite unsatisfactory for those who are unable to pay for such service.
104. In those countries the "poor person's" needs are supposed to be met mainly by lawyers who volunteer to represent the "poor" for little or no fee. This practice has a number of severe limitations. Experienced private lawyers usually have little time to assist these people. Because of the small fees payable, the tendency has generally been for relatively young and inexperienced lawyers to take the poor person's case, doing so mostly for experience. Furthermore, the range of matters in respect of which legal aid has been made available, has generally been very limited.
105. The Australian Government has recently recognised these difficulties and has now established a national, government-paid, professionally independent Legal Aid Service.
106. In Papua New Guinea an effective legal aid service has been provided over the last fourteen years by the Office of the Public Solicitor, which has given representation to Papua New Guineans (and some expatriates) who could not afford to pay private lawyers to represent them in courts or to give them advice about their rights. This Office has been developed especially to meet the needs of the indigenous people, the great majority of whom cannot afford to pay legal fees, particularly in criminal cases.
107. The Public Solicitor's Office has had a considerable degree of independence over the years, despite the fact that it has been a branch of the Law Department. However, because of its lack of statutory independence, the Office has on one occasion at least, been made subject to direction by the Secretary for Law.
108. We do not consider that private practitioners will be able to provide legal services on the scale and of the nature required by our people in the future, nor do we think they can be expected to do so. We are convinced that the Office of the Public Solicitor is the best institution to provide legal assistance to the great majority of our people.
109. No-one should be denied legal assistance by reason of his financial circumstances or the fact that he or she is unable to establish contact with persons of authority or influence. Law courts we believe should be available to all persons, not just to persons who have money.
110. We have found public opinion throughout the country to be in favour of making the Public Solicitor's Office constitutionally independent of the executive government. We ourselves believe that this independence is essential in order to provide legal services to the majority of our people and to protect the rights of individuals and small groups.
111. Like other constitutional office-holders, persons appointed to this office should be men or women of high moral character, professional ability and experience. We have recommended that at the time of his or her appointment, the person so appointed should have had at least three years experience as a lawyer. As in the case of the Public Prosecutor, we have proposed qualifications which are not so stringent as to unduly limit the opportunity of appointing a Papua New Guinean to this position in the near future.
112. These provisions appear in our recommendations under this head in Chapter 14 "General".
113. In Part A of this Chapter we have recommended that the Public Solicitor be appointed by the Judicial and Legal Service Commission.
114. We recommend that the Public Solicitor be specifically empowered to grant legal assistance to an individual or a group on the basis of "need". We have defined "need" in broad terms that are similar to the definition of "impecuniosity" which the Public Solicitor has been applying for a number of years.
115. We have also proposed that the Public Solicitor be empowered to charge an appropriate sum towards the cost of providing legal aid in cases where a person cannot afford to go to a private practitioner but could make a contribution towards that cost.
116. We appreciate, of course, that the extent to which legal service can be provided by the Public Solicitor's Office to those entitled to such assistance will depend on the availability of lawyers and their supporting staff, and reasonable facilities being provided for them. We have therefore recommended that the Public Solicitor should be provided with adequate qualified and supporting staff and facilities.
117. We have recommended that the Public Solicitor shall provide legal aid to any person who is in "need" and is to be tried in the National Court of Justice on a criminal charge. The Public Solicitor has had this responsibility in respect of trials in the present Supreme Court since his Office was first established.
118. We also propose that the Public Solicitor should have a discretion to provide legal representation in cases where a person is charged with a serious offence, but the trial is taking place in a subordinate court. We recommend that the term "serious offence" should include any offence which may at present be tried in the Supreme Court.
119. Other recommended discretionary powers of the Public Solicitor include the power to commence and provide legal representation in appeals against convictions or sentences in lower courts and other powers and functions concerning civil and criminal matters according to law.
120. In order to ensure that legal aid is not unreasonably refused by the Public Solicitor, we have recommended that a person should have a right to apply to the National Court for a certificate that he should be granted legal aid. Where the National Court is satisfied that legal aid has been wrongly refused the Court may direct the Public Solicitor to immediately grant legal aid to the person concerned. If such a certificate is issued, the Public Solicitor would be required to grant legal assistance to that person in accordance with the certificate, (either with or without conditions as to the payment of a contribution towards the cost of providing that assistance.)
121. Similar provisions to those applicable to the Public Prosecutor should apply to the Public Solicitor.
D. POWER OF MERCY
122. We recognize that it is important for the Executive to have the power to commute sentences of death, to grant pardons, and to reduce sentences. This power is, of course, a normal one for any Executive. It enables the Government to rectify injustices which only become apparent after the time for an appeal against a conviction or sentence has passed.
For example:-
There might be a case where a young man takes the blame for an offence committed by an older man in his clan. The true situation might become apparent some years after the young man has been convicted, and sentenced to a long term of imprisonment.
In these circumstances, the executive needs to have power to grant a pardon to the young man on the grounds that his conviction and sentence were wrong.
123. We are, however, concerned to try to ensure that the power of mercy is exercised only in an appropriate case and in a just manner. We propose that an advisory committee on the executive power of mercy be established to investigate and make recommendations in cases where the Executive is giving consideration to exercising this power.
124. The Committee should consist of five citizens, including at least one woman, appointed by the Minister responsible for justice after consulting with appropriate bodies or groups. These might include, for example, the Melanesian Council of Churches.
125. The membership of the Committee should be -
(a) a doctor who has had experience in psychiatry;
(b) a lawyer;
(c) a member of parliament;
(d) a minister of religion; and
(e) a person who has had experience in community work.
126. We recommend that members of the Advisory Committee should hold office for four years and be eligible for re-appointment.
127. We believe that the Minister responsible for justice should consult the Committee before giving any advice to the National Executive Council in a case where consideration is or may be given to commuting a death sentence, granting a pardon, reducing a sentence of imprisonment, or paying back a fine.
128. The Committee proposes also that, whenever the Advisory Committee is consulted, its Chairman be entitled to ask for all relevant information to be made available concerning the court hearing and other aspects of the case. The Minister should be obliged to make this information available. Included in it should be a report on the case by the trial judge or presiding magistrate (as the case may be).
129. The Advisory Committee should consider any case referred to it by the Minister and make a report to him within a reasonable time.
130. Neither the Minister nor the National Executive Council should be obliged to accept the recommendations contained in the report of the Advisory Committee. However, we believe that if it has all the relevant facts placed before it, together with a recommendation from an independent body such as the Advisory Committee, it is likely that the Council will make sound decisions in exercising its power of mercy.
131. We have recommended that the requirement of consultation with the Advisory Committee may be waived in certain circumstances. It is proposed that if the Public Prosecutor certifies that it is in the interests of justice to do so, the Executive may, without the necessity to consult the Committee, decide to grant a pardon or a reduction for sentence to an accomplice who gives evidence against a principal offender who is subsequently convicted.
132. It will be noted that in accordance with our general policy of breaking away from common law terms which are not well understood by our people, we have refrained from using the traditional British term "prerogative" in the context of the power of mercy; we prefer to use the word "power".
E. RESOLUTION OF CONSTITUTIONAL QUESTIONS
133. The Constitution will be the supreme law of this country. All other laws and regulations will have to conform to its provisions. The Constitution we recommend will establish a number of institutions and will define their powers. It is inevitable that doubts will arise as to the precise scope of these powers and of the functions of these bodies, especially as to the respective powers and functions of two or more institutions. Furthermore, we have recommended that the Constitution lay down a number of prescriptions and stipulations (for example, the National Goals and Directive Principles, and the Leadership Code) and safeguards for individuals (for example, through the human rights provisions in Chapter 5).
134. In order to ensure that the Constitution really is supreme, we believe it is necessary to provide machinery for the enforcement of its provisions and to resolve disputes arising under it.
135. It is of course possible to dispense with any special machinery. Under such a system it is assumed that each organ and institution of government knows its powers and the limitations on it, and can be relied on to stay within these limitations. Sometimes, although the machinery for enforcement is not dispensed with altogether, no enforcement provisions are made in respect of certain chapters or sections. It is not unusual that even though the legislative powers of Parliament are restricted in the Constitution, it is not possible to challenge a law passed by it on the ground that the law goes beyond the legislative powers vested in it.
136. The absence of special enforcement machinery is sometimes justified by the argument that the Constitution sets up several co-ordinate branches of government - the legislature, the executive and the judiciary - and that it is inconsistent with the theory of separation of powers that one branch should be told by another what it may or may not do. This line of argument does not require that there be no enforcement machinery at all, but that the enforcement machinery is self-administered. Thus, while courts cannot question the constitutionality of legislation, a legislature may set up a committee of its own to review legislative bills for constitutionality before enacting them; or the administration may set up a tribunal to resolve complaints against administrative decisions.
137. Another argument is also sometimes presented in favour of dispensing with enforcement machinery. It is said that the best guarantee of the supremacy of the Constitution lies in the vigilance of the people who, acting as an electorate, and through pressure groups, keep a check on state institutions. If this task is transferred to a specific institution, especially the courts, the political process is weakened, and the way is opened ultimately to greater arbitrariness.
138. We consider that these arguments are important, although we cannot agree that they are fully applicable to our situation. Our constitutional provisions are not based on a theory of absolute separation of powers. It is our belief that interaction between different state institutions can be beneficial. We do not consider that the presence of an enforcement machinery need necessarily weaken the political process. Countries which have been able successfully to dispense with an enforcement machinery are either those in which the political system has evolved gradually over the course of centuries, or those which have a clear and dominant ideology.
139. Our constitutional proposals represent in many ways a radical departure from the system under which our country has been governed until now. Given the immediacy of the numerous tasks that face us, it is scarcely open to us to permit a slow and unplanned evolution of our constitutional system. Our proposals envisage the establishment of numerous new institutions and a significant redistribution and devolution of power. There will be a new balance between institutions. We hope that the new Constitution will help to change the old ways and habits of doing things.
140. It is not our opinion that all of these changes and innovations can take place spontaneously. Also, it will be several years before the people will have a full grasp of the new constitutional system and as they have been suppressed over decades of colonialism, they may be afraid to stand up for their constitutional rights. Moreover, we have noticed a tendency in many parts of the world towards the establishment of a machinery to ensure the enforcement of the Constitution. We have given careful thought to this question, and have recommended elsewhere in this Report various devices to ensure both the implementation and the enforcement of the Constitution.
141. We have proposed in preceding chapters that several institutions in the country have a general responsibility to see to it that the Constitution is respected. Both the Prime Minister and the National Parliament should, we believe, have important roles in this respect. Political parties and other pressure groups and educational institutions have both an interest and an obligation to ensure that the Constitution is not flouted. We do not underestimate specialised institutions and procedures we recommend will be truly effective only if they are supported by these general institutions and public opinion. It is, however, also our view that it is necessary to provide for bodies especially charged with the enforcement of the Constitution through the resolution of disputes.
142. One of the commonest ways to enforce the Constitution and resolve disputes is through the jurisdiction of the courts. The courts are given the power to interpret the Constitution and their rulings are authoritive and binding on all other institutions. We have given careful thought to the advantages and disadvantages of a primary reliance on courts for the settlement of constitutional disputes.
143. We believe, the main advantages of judicial review in regard to constitutional questions are as follows -
It is the normal function of the courts to resolve disputes in accordance with law. It is a task for which they have pre-eminently the qualification and the expertise. The Constitution is law - in fact supreme law. It is therefore logical that the courts should be assigned the task of constitutional dispute settlement.
Courts which have adequate constitutional protection are generally impartial, serving no narrow political or regional interests. The court procedures ensure a fair hearing for all sides, and in view of our proposals for the Public Solicitor, access to courts should be comparatively easy. Courts enjoy respect and prestige in our country, and their decisions are unlikely to be ignored or challenged.
Whilst it is true that certain aspects of a country's Constitution, such as those concerning the internal procedures of the legislature and the executive, are best left to be enforced by those bodies themselves, there are many other provisions in most Constitutions in respect of which judicial interpretation is clearly the most appropriate means of dispute resolution and enforcement.
144. The principal disadvantages of giving the main responsibility to the judiciary seem to be the following -
The courts tend to be formalistic and legalistic. While it is true that the Constitution is law, it is a special kind of law. All too often the courts approach the Constitution as if it were like ordinary law. They adopt a literal approach and sacrifice the spirit for the letter of the Constitution. By failing to recognise the dynamic character of a Constitution, the courts have often introduced unnecessary rigidities.
On the other hand, judges, like other people, are not free of their biases and emotions. This situation is particularly difficult where the judiciary is predominantly expatriate, as it is likely to remain in our country for some years to come.
Another disadvantage, especially where the formal amendment of the Constitution is very difficult, (as in Australia for example, where a referendum is needed to amend the Constitution) is that the courts become the final arbiters of the Constitution. In this situation the powers of other institutions which express more directly and clearly the wishes of the people may be weakened.
Finally it is argued that courts have a limited capacity to effect compromises. In many constitutional controversies, especially as between various organs of the state, an authoritative decision in favour of one or the other party may precipitate a more acute crisis, whereas a compromise solution might have satisfied all parties. Also, the interference by the courts in what is often best left to the political process, can aggravate politically difficult situations. And by entering these contentious areas, the role and functions of the courts themselves become controversial. Those who believe that the courts play an important social role through their functions or ordinary adjudication are afraid that their involvement in political disputes - for such are many constitutional cases - may do serious damage to that social role.
145. As we have indicated in earlier chapters, we have adopted a selective approach towards the role of courts and other judicial bodies in relation to constitutional issues. We consider that there are areas where the safeguards of the judicial process and the independence of the judiciary are important assets and have recommended that courts, and in particular the Supreme Court, be used in those instances. In other areas we are concerned that the courts could introduce unnecessary rigidities or that their procedures would not permit acceptable compromises, and have accordingly sought alternative devices and methods.
146. However, in relation to those chapters or parts of the Constitution where we do not make explicit reference to the method of resolving disputes, we recommend in this Part that the Supreme Court have exclusive original jurisdiction. We have recommended that except in regard to matters in which the human rights provisions of the Constitution are involved, full responsibility for such judicial review should be vested in the Supreme Court, which should have exclusive jurisdiction to decide all constitutional questions apart from those which, under the Constitution, are to be (or may be) resolved by another body.
147. We recommend that whenever, in proceedings before a court other than the Supreme Court, a justiciable constitutional issue other than one concerning the human rights provisions of the Constitution, arises that court shall refer the issue to the Supreme Court for determination. Once the Supreme Court has decided the constitutional issue, the court which was originally dealing with the case must determine it in accordance with the ruling of the Supreme Court.
148. We consider that the new Supreme Court, (which we have recommended in Part A of this chapter should comprise three judges), is the appropriate body to be given this primary responsibility for deciding constitutional issues because the Constitution will be the supreme law of our country, and judicial decisions to enforce and interpret it should surely be made by our highest court. As a general rule, we do not think it would be wise to give this heavy responsibility to a single judge or magistrate. In any event, the decision of a single member of the judiciary on such major questions as are likely to arise in relation to the Constitution would almost certainly be appealed against by one or other of the parties to the particular proceedings.
149. As, under our proposals, the courts, and in particular the Supreme Court, will play a considerable role in constitutional dispute settlement, we have made certain recommendations to ensure that the courts adopt a liberal approach in interpretation. In Chapter 2 we have recommended that the Constitution state explicitly that the courts should be guided by the National Goals and Directive Principles of Policy so that whenever there are ambiguities, an interpretation which favours these goals and principles should be adopted as against an alternative one. In our recommendations on human rights we have proposed that access to courts should not be excluded on the technical grounds of the standing of the person seeking an order from the court or the length of time which has elapsed since the cause of action arose.
150. A common device to get round the technical rules which restrict access to courts (as well as for other objectives) is to vest the jurisdiction to give an advisory opinion on constitutional issues in the courts. Under such a procedure specified bodies are authorised to refer a matter to the court for its opinion. It is not always necessary that a dispute should have arisen; an institution may wish to have an authoritative ruling on a constitutional point before embarking on a particular piece of legislation or a certain policy. It is flexible in that a party or parties can define clearly and precisely the issues on which they need a ruling, and yet the ruling is, strictly speaking, not binding.
151. While this procedure has these advantages, it has been criticised on the ground that in view of the crucial importance of the facts of a case a court performs its functions best when it has an actual and specific dispute before it. It is also said that if such a procedure exists, political and administrative institutions are tempted to avoid their own responsibilities of decision-making by referring contentious issues to courts. It is further argued that courts may be caused embarrassment under such a procedure if, for example, a case is brought to court under its ordinary jurisdiction on a point which it has already given an advisory opinion.
152. Experience in countries which do permit judicial advisory opinions shows that such criticisms are not justified. In any case, we consider that the advantages outweigh the possible disadvantages and we recommend that provision be made for the Supreme Court to give an advisory opinion on any matter concerning any provision of the Constitution, including its implementation and enforcement.
153. We envisage advisory opinions as serving two aims. An advisory opinion will help an institution charged with the enforcement of a constitutional provision or the executive to establish what the law on a particular constitutional point is. It should also help to resolve a dispute about what the constitutional law is on a particular issue before the dispute becomes aggravated and the parties to it take strong and inflexible positions. It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances.
154. Having given careful thought to who should be able to seek a judicial opinion, and on what matters, we consider that only the following institutions should be empowered to seek advisory opinions -
� the First Parliamentary Committee (as the Permanent Parliamentary Committee charged with responsibility for constitutional affairs);
� the National Executive Council;
� the body charged with special responsibility in relation to the resolution of central-provincial government disputes; and
� the body responsible for recommending changes in existing legislation to achieve conformity with the national goals and directive principles and the human rights and obligations incorporated in the Constitution.
155. We recommend that this constitutional advisory jurisdiction be exercised only by the Supreme Court, as the court which has exclusive jurisdiction in regard to most constitutional matters. Advisory opinions given by that court should have considerable weight.
1. Justice shall be administered in the name of the people. Particular responsibility for its dispensation shall vest in the judiciary.
A. THE JUDICIARY
2. Judges and magistrates, are independent in the exercise of their judicial functions, their responsibility being to uphold, interpret and apply the Constitution and all other laws of Papua New Guinea.
3. The Judiciary shall consist of -
(a) the Supreme Court of Papua New Guinea;
(b) the National Court of Justice of Papua New Guinea; and
(c) such subordinate Courts (including village courts) as the National Parliament may by law establish.
4. (1) There shall be a Supreme Court which shall be the final court of appeal for Papua New Guinea constituted, subject to the Constitution, in accordance with law.
(2) When the Supreme Court is determining any matter other than a pre-trial matter it shall comprise not fewer than three judges sitting together, presided over by the Chief Justice, or if he is not a member of that Supreme Court, the Deputy Chief Justice, or if neither the Chief Justice nor he Deputy Chief Justice is a member of that court, the most senior of the judges of that Supreme Court.
(3) Subject to clause (4) below, the Supreme Court shall be constituted by judges of the National Court.
(4) Parliament may by law provide for the appointment by the Judicial and Legal Service Commission of National Court judges as full-time judges of the Supreme Court.
(5) A judge who hears a case in the National Court shall not be eligible to be a member of the Supreme Court ... and determines an appeal from any decision in that case.
5. Subject to the Constitution and any law which specifically refers to its jurisdiction, the Supreme Court shall have jurisdiction to hear appeals in all matters decided by the National Court of Justice, and to exercise such further powers and determine such other matters as are provided for by law.
6. There shall be a National Court of Justice (referred to below as "the National Court"). The Judges of the National Court shall be -
(a) the Chief Justice;
(b) the Deputy Chief Justice; and
(c) not fewer than three other judges of the National Court, whose number, subject to the Constitution, may be determined by law.
7. Subject to the Constitution, and to any law which specifically refers to its jurisdiction, the National Court shall have all the jurisdiction which may be necessary for the administration of justice, and may exercise such further powers and determine such other matters as may be provided for by law.
Note: It is intended that this jurisdiction will include extraterritorial jurisdiction.
8. The Supreme Court and the National Court shall be superior courts of record and, except as otherwise provided by the Constitution or by law, shall have all the powers of such a court.
9. A person shall not be appointed as a judge of the National Court unless -
(a) he is or has been, a lawyer (however described) with a total of not less than 5 years practice in the law in one or more than one of the following courts -
(i) the National Court of Justice;
(i) the former Supreme Court of Papua New Guinea; and
(iii) any other Court having unlimited jurisdiction in civil or criminal matters in a country that, in the opinion of the Judicial and Legal Services Commission (referred to below), has a legal system similar to that of Papua New Guinea.
(b) he has been a Judge or Acting Judge of the former Supreme Court of Papua New Guinea, or is a Judge of a Court referred to in sub-paragraph (iii) of paragraph (a) above;
(c) he is or has been, a Resident Magistrate for not less than five years and holds a degree in law from, or recognised by, a university in Papua New Guinea; or
(d) he is a lawyer with a total of not less than four years practice in the law in one or both of the National Court of Justice and the former Supreme Court of Papua New Guinea, and has held a degree in law recognised by a university in Papua New Guinea for not less than six years.
Note: (i) a "lawyer" in this Chapter means a legal practitioner as defined by law.
(ii) "practice in the law" shall be defined by law broadly, and shall include practice after provisional admission.
10. (1) A person who holds a degree in law from, or recognised by, a university in Papua New Guinea, and -
(a) is a lawyer of the National Court who has had not less than three years practice in the law; or
(b) who has had not less than three years experience as a Resident Magistrate,
may be appointed as an assistant judge.
(2) Service as an assistant judge shall be deemed to be practice in the law for the purposes of recommendation 9 (a) above, or service as a Resident Magistrate for the purposes of recommendation 9 (c) above,
provided that the period so deemed to have been served shall not exceed two years.
(3) On the hearing of a matter before the National Court, an assistant judge may sit with the Court and may take part in the hearing and determination of the matter in the manner provided for by law.
Note: The relevant Act should provide for an assistant judge to participate in all aspects of proceedings before the court of which he is a member to an extent consistent with his ability and experience.
11. The Chief Justice shall be appointed by the Prime Minister after first consulting the Minister responsible for justice, and subsequently consulting, jointly, the National Executive Council and the Permanent Parliamentary Committee responsible for justice.
12. (1) If the office of Chief Justice is vacant, or if the Chief Justice is on leave or is for any reason unable to perform the functions of his office, then, until a person has been appointed to and has assumed the functions of that office, or until the person holding that office has resumed those functions (as the case may be), the Deputy Chief Justice shall act in the office of Chief Justice.
(2) However, if at any time the position of Deputy Chief Justice is vacant, or he is for any reason absent or unable to perform the functions of his office, the Prime Minister shall appoint the next senior judge to act in the office of Chief Justice.
13. The Chief Justice, in consultation with the other judges, shall be responsible for the organisation of the affairs and the administration of the business of the Supreme Court and the National Court of Justice.
14. There shall be a Judicial and Legal Service Commission which shall have the powers and functions specified in the Constitution and by law.
15. (1) The composition of the Judicial and Legal Service Commission shall be -
(a) the Minister responsible for justice (or another Minister nominated by him) as chairman;
(b) the Chief Justice (or another judge nominated by him);
(c) a lawyer of the National Court nominated by the Minister responsible for justice (or a deputy nominated by the Minister);
(d) the Chief Ombudsman (or the Senior Ombudsman acting as his deputy); and
(e) a lawyer nominated by the Permanent Parliamentary Committee responsible for justice, (or a deputy nominated by that Committee).
(2) the quorum for meetings of the Commission shall be five.
16. (1) The Minister responsible for justice (as Chairman), the Chief Justice, and the Chief Ombudsman shall hold office ex officio.
(2) The lawyer nominated by the Minister responsible for justice shall hold office during the term of office of the Minister by whom he is appointed, his appointment being renewable.
(3) The lawyer nominated by the Permanent Parliamentary Committee responsible for justice shall be appointed for a term of the National Parliament, his appointment being renewable.
17. The members of the Judicial and Legal Service Commission shall be appointed by the National Executive Council, in accordance with recommendation 15 (1) above.
18. The Judicial and Legal Service Commission shall appoint the following constitutional office-holders -
(a) the judges other than the Chief Justice (including the Deputy Chief Justice) and assistant judges;
(b) the Public Prosecutor;
(c) the Public Solicitor;
(d) the Chief Magistrate;
and such other public office-holders as may be prescribed by law.
19. There shall be a Magisterial Service, consisting of the Chief Magistrate and all full-time magistrates, which shall be administered by the Judicial and Legal Service Commission.
20. The Commission shall be responsible for the efficient functioning and operation of the Service, and for ensuring its independence, and for those purposes shall have the powers, functions, duties and responsibilities provided for in the Constitution or by law.
21. There shall be a Chief Magistrate who shall have the same qualifications for appointment as a judge.
22. The Chief Magistrate shall be -
(a) an additional member of the Judicial and Legal Service Commission for the purposes of -
(i) appointing full-time magistrates other than the Chief Magistrate; and
(i) determining general policy directives in relation to the Magisterial Service.
(b) the Chief Officer responsible for the efficient functioning and operation of the Magisterial Service.
Note: When the Chief Magistrate is sitting as an additional member of the Commission, the Minister responsible for justice shall have a casting vote.
23. The Chief Magistrate shall -
(a) carry out any direction or instruction by the Commission in relation to the Magisterial Service; and
(b) have such powers, functions, duties and responsibilities in relation to the Magisterial Service as are provided for by law.
24. The Chief Magistrate shall have the same term of office and protection from arbitrary suspension or removal as a judge.
Note: Provision should be made by law in respect of the qualifications, term of office, salary and other conditions of service, discipline, retirement age, removal etc., of full-time magistrates. Such provision should give these magistrates security of tenure similar to that recommended in respect of judges.
25. (1) At least once a year, a report on the functioning and administration of the judiciary shall be forwarded by the Chief Justice after consultation with the other judges to the Speaker, who shall table the report in the National Parliament not later than during the first meeting of the Parliament after he has received the report. A copy of the report shall simultaneously be forwarded to the Minister responsible for justice.
(2) Each report shall include -
(a) a carefully considered opinion as to the extent to which the various courts are meeting the needs of the people;
(b) an overall view of any legal and administrative difficulties that may have been encountered by the judiciary, and recommendations on ways in which such difficulties might be overcome or minimized;
(c) in particular, an analysis by the Chief Magistrate of the functioning of the Magisterial Service and of courts of summary jurisdiction; and
(d) such other matters as the Chief Justice after consultation with the other judges and the Chief Magistrate considers should be brought to the attention of parliament in the interests of justice and its effective administration.
26. Except with the approval of the National Executive Council, no person other than a citizen may be appointed a judge after the expiration of ten years immediately following the date on which the Constitution comes into force (referred to below as "Constitution Day").
Note: Recommendations as to qualifications, tenure, retirement, re-appointment, etc., of non-citizen judges are grouped together below under the heading "TRANSITIONAL". The recommendations on these matters immediately following refer only to citizens who are appointed judges.
27. After the expiration of a period of ten years immediately following Constitution Day all judges shall be appointed for a term of ten years initially, and shall be eligible for re-appointment at ten year intervals by the Judicial and Legal Service Commission.
28. Any person who is not re-appointed after holding office as a judge for a term of ten years, shall be offered a position in public employment to which is attached a salary, superannuation rights and other conditions of service not inferior to those which he was receiving at the conclusion of his term of office as a judge.
29. Subject to Recommendations 30, 31 and 32 below, a judge shall, whether or not his term of office has expired, vacate that office on attaining the age of fifty-five years.
30. A judge may, upon attaining the age of fifty-five years, be permitted in accordance with the following recommendation to stay in office for the remainder of his term of office, or be granted an extension of that term, for a period not exceeding five years,
provided that upon attaining the age of sixty years he shall vacate his office.
31. The term of office of a judge who attains the age of fifty-five years may be extended -
(a) in the case of the Chief Justice by the Prime Minister after first consulting the Minister responsible for justice, and subsequently consulting, jointly, the National Executive Council and the Permanent Parliamentary Committee responsible for justice; and
(b) in the case of a judge other than the Chief Justice, (including the Deputy Chief Justice) by the Judicial and Legal Service Commission.
32. Notwithstanding that he has attained the age at which he is required under Recommendation 29 or 30 above, to vacate his office, a judge may, with the permission of -
(a) in the case of the Chief Justice, the Prime Minister; or
(b) in the case of a judge other than the Chief Justice, the Judicial and Legal Service Commission, acting in accordance with the advice of the Chief Justice, continue in office for such period after attaining that age as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings which are commenced before him prior to his attaining that age.
33. If the office of any judge is vacant, or if any judge is for any reason unable to perform the functions of his office, or if the state of business in the National Court or the Supreme Court makes it necessary, the Judicial and Legal Service Commission may appoint a person qualified for appointment as a judge to be temporarily a judge of the National Court and of the Supreme Court,
provided that an appointment under this provision may not continue for a period exceeding twelve months.
34. A person who is over the retiring age for judge may nevertheless be appointed an acting judge, unless he is over the age of sixty-five years.
35. Subject to the proviso to Recommendation 33 above, any person appointed under this provision to be temporarily a judge shall hold office for the period of his appointment, or if no such period is specified, until his appointment is revoked by the Judicial and Legal Service Commission,
provided that the Judicial and Legal Service Commission may permit a person whose appointment to act as a judge has expired, or been revoked, to continue to act as a judge for such period as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him prior to the expiry or revocation of his appointment.
36. A judge shall not take up the duties of his office unless he has first taken an oath or affirmation before the Prime Minister to uphold, interpret and apply the Constitution and to administer justice impartially in accordance with law.
37. A judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of this recommendation.
Note: The term "misbehaviour" in this Chapter includes gross negligence and conduct which constitutes a breach of the Leadership Code.
38. If the Judicial and Legal Service Commission is satisfied that the question of removing a judge other than the Chief Justice ought to be investigated -
(a) it shall appoint a tribunal comprising three judges (one of whom shall be appointed chairman by the Commission), who may be chosen from among judges of the National Court, former judges of that court or of the former Supreme Court of Papua New Guinea, and judges of a court of unlimited jurisdiction in a country which has a legal system which the Judicial and Legal Service Commission considers similar to that of Papua New Guinea;
(b) the tribunal shall inquire into the matter, report its findings to the Judicial and Legal Service Commission and recommend to that Commission whether or not the judge ought to be removed on the grounds of misbehaviour or inability to perform the functions of his office; and
(c) the Judicial and Legal Service Commission shall act in accordance with the recommendations of the tribunal.
39. If the Prime Minister is satisfied that the question of removing the Chief Justice ought to be investigated -
(a) he shall, after first consulting the Minister responsible for justice and subsequently consulting, two bodies jointly, namely, the National Executive Council and the Permanent Parliamentary Committee responsible for justice, appoint a tribunal to which he shall refer the matter. The tribunal shall consist of three judges, chosen from among judges of the National Court, former judges of that court or of the former Supreme Court of Papua New Guinea, and judges of a court of unlimited jurisdiction in a country which has a legal system which the Judicial and Legal Service Commission considers similar to that of Papua New Guinea, one of whom shall be appointed chairman by the Commission; and
(b) that tribunal shall inquire into the matter and report its findings to the Prime Minister, (a copy of those findings being forwarded simultaneously to the Commission), who shall act in accordance with the recommendations of the tribunal.
40. Where the question of removing a judge on the grounds of misbehaviour or inability to perform the functions of his office has been referred to the appropriate tribunal -
(a) in the case of a judge other than the Chief Justice, the Judicial and Legal Service Commission may suspend that judge from performing the functions of his office. Any such suspension may at any time be revoked by the Commission, and shall in any case cease to have effect if the tribunal recommends to the Commission that the judge should not be removed; or
(b) in the case of the Chief Justice, the Prime Minister may, after first consulting, jointly, the National Executive Council and the First Parliamentary Committee, suspend the Chief Justice from performing the functions of his office. Any such suspension may at any time be revoked by the Prime Minister, after consulting the Ministerial bodies referred to above, and shall in any case cease to have effect if the tribunal recommends to the Prime Minister that the Chief Justice should not be removed.
41. No office of judge of the National Court (or of the Supreme Court) shall be abolished while thee is a substantive holder of it.
42. (1) Subject to the Constitution and any law, the judges of the National Court or a majority of them, after consultation with the Minister responsible for justice, make Rules of Court concerning the practice and procedure of the National Court and of the Supreme Court.
(2) Notice of the making of Rules of Court under clause (1) above shall be published in the Government Gazette, and the Rules shall come into force on the day on which the notice is so published or on such later date as is fixed by or under the Rules.
(3) The Chief Justice shall cause a copy of the Rules of Court made in accordance with these recommendations to be forwarded to the Minister responsible for justice and to the Speaker of the National Parliament within fourteen days of the date on which notice of the making of the Rules is published in the Government Gazette.
(4) The Speaker shall table in the National Parliament within seven days of receiving them any Rules of Court which he receives while the National Parliament is sitting. Any Rules of Court which the Speaker receives when parliament is not sitting, shall be tabled on the first day of the next meeting of Parliament.
(5) The parliament may, not later than the final day of the meeting following that during which Rules of Court are tabled, disallow the Rules, or part of the Rules.
43. (1) The Chief Magistrate shall appoint a magistrate in each province as Visiting Justice in respect of that province.
(2) Each Visiting Justice appointed under clause (1) above, shall be directly responsible to the Chief Magistrate for the proper discharge of his duties under the Corrective Institutions Ordinance, and of such other duties as he may be directed to perform.
44. When a judge is listed to conduct the criminal sittings of the National Court at any place the responsible authorities shall, not less than seven days before that sittings are due to commence, furnish him with a copy of all reports made during the previous twelve months by the Visiting Justice in respect of each area from which the cases to be dealt with at that sittings are to come.
45. (1) Before or during the first three days of every criminal sittings of the National Court, the judge listed to conduct that sittings shall make an inspection of all corrective institutions and police lock-ups which service the centre at which the sittings are to be held, in a similar manner to that in which a Visiting Justice does.
(2) Unless the judge otherwise decides, the inspection he makes in accordance with clause (1) above shall be limited to the taking and recording of any complaint which any detainee may wish to make regarding the administration of justice or the detention or continued detention of himself or any detainee and, as circumstances permit, the investigation of any such complaint and, as the judge sees fit, the making of any appropriate orders including (without limiting the generality of the power to make orders) -
(a) an order that the matter of a detainee's complaint, and all necessary reports, records, files and documents be officially brought before the National Executive Council through the Minister responsible for justice, with a view to the National Executive Council deciding whether the Power of Mercy should be exercised in regard to the particular detainee, or whether any other action should be taken;
(b) an order that if, before a date specified in the order, a named detainee has not been tried and convicted on a specified charge, the laying of that charge (or any other charge of which he might have been convicted on an information or indictment alleging that charge) shall be forbidden and that detainee shall be declared and adjudged not guilty of the charge;
(c) a declaratory order that a particular person who has been sentenced to imprisonment on the basis that he has been convicted by a court of summary jurisdiction could not properly have been convicted on that charge, and that he be immediately released unless there is some other warrant of imprisonment in existence;
(d) orders that certain cases shall be brought before the National Court by way of appeal and that all procedural or limitation requirements which might otherwise stand in the way of such an appeal be waived;
(e) orders that depositions, records of proceedings, reports and other documents in respect of any hearing or detention shall be handed to the judge within a stated time and to command any named person or official to attend him and answer any question.
46. Without limiting the generality of the powers included in Recommendation 45 which may be exercised after, as well as during, a judge's inspection in accordance with that recommendation, a judge who carries out such an inspection -
(a) shall have power (which he shall exercise judicially after reading the record of the court which convicted the person) to declare that the person could not have been convicted on the charge on which he was convicted and sentenced;
(b) may grant leave, in a summary way, to a detainee to appeal against his conviction or sentence. The judge may refer any such case to the Public Solicitor, who shall provide legal representation for the conduct of the appeal.
Note: This recommendation is not intended to affect the power of a judge, in a clear case of an improper conviction of a detainee, to order that conviction to be set aside, and the detainee immediately released.
47. Proper provision should be made to ensure that a copy of any order made by a judge under Recommendation 45 or 46 above is promptly handed to -
(a) the Officer-in-Charge of the corrective institution concerned;
(b) the detainee affected; and
(c) the Visiting Justice of the area.
48. The Committee welcomes and supports the announcement of the Minister for Justice that he proposes to establish a Law Reform Commission to consider and make recommendations on desirable changes in the legal system to meet the needs of the people of our emerging nation. It recommends that the Commission be established as soon as practicable.
49. (1) During the period of ten years immediately following Constitution Day all judges shall be appointed for an initial term of three years, at the expiration of which they shall be eligible for re-appointment by the Judicial and Legal Service Commission for successive terms of ten years.
(2) Any person who is not re-appointed after holding office as a judge for an initial term of three years shall be offered a position in public employment to which is attached an appropriate salary, superannuation rights and other conditions of service as prescribed by law.
Note: An "appropriate salary, superannuation rights and other conditions of service", in this recommendation means a salary, etc., which are not unduly inferior to those which the person was receiving at the conclusion of his term of office as a judge.
50. Notwithstanding anything in the recommendations under "judiciary" (above) a non-citizen -
(a) must be qualified under 9 (a) or (b) above to be eligible for appointment as a judge;
(b) may be appointed a judge for a term not greater than three years, and may be re-appointed;
(c) shall, whether or not his term of office has expired, vacate his office on attaining the age of sixty-five years; and
(d) may be appointed an acting judge of the National Court.
51. During any period when the office of Chief Magistrate is held by a person who is a non-citizen, a citizen Resident Magistrate nominated by the Chief Magistrate shall sit with the Judicial and Legal Service Commission as an additional member for the purpose of assisting in the determination of general policy directives in relation to the Magisterial Service.
B. THE PUBLIC PROSECUTOR
52. There shall be a Public Prosecutor whose office shall be a public office.
53. In the exercise of the powers conferred upon him by the Constitution, the Public Prosecutor shall not be subject to the direction or control of any other person or authority.
Qualifications
54. A person shall not be qualified to hold or act in the office of Pubic Prosecutor unless he is a lawyer with a total of not less than three years practice in either or both -
(a) the National Court;
(b) the former Supreme Court of Papua New Guinea.
Note: The provisions in Chapter 14 "General" concerning disqualifications from appointment and continuance in office of constitutional office-holders, their tenure and other conditions of service (not including the procedure for suspension and removal from office) apply to the Public Prosecutor.
Appointment
55. The Public Prosecutor shall be appointed by the Judicial and Legal Service Commission in accordance with Recommendation 18 in Part A of this Chapter.
56. The Public Prosecutor shall have power in any case in which he considers it desirable to do so:
(a) to institute and undertake criminal proceedings against any person before any court other than a court comprising Defence Force judges in respect of any offence against the law;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and
(c) with the leave of the court, to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or by any other person or authority,
provided that the powers of the Public Prosecutor under this recommendation may be limited by law so as not to extend to any case which is within the jurisdiction of a village court.
Note: In this Chapter, "village court" means a village court within the meaning of the Village Courts Act 1974 or a court similar to such a court.
57. The powers conferred upon the Public Prosecutor under paragraphs (b) and (c) of the above recommendation are vested in him to the exclusion of any other person or authority,
provided that where any other person or authority has instituted criminal proceedings, nothing in this recommendation shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.
58. To avoid doubt, for the purpose of Recommendation 55 above, any appeal from any determination in criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings, to any other court shall be deemed to be part of those proceedings,
provided that the power conferred on the Public Prosecutor under Recommendation 56 (c) above shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings, or to any case stated or question of law reserved except at the instance of that person.
59. In addition to the powers in Recommendation 56 above, the Public Prosecutor shall have power -
(a) to institute and undertake proceedings against any "leader" (as defined in Chapter 3, "The Leadership Code" and any law) for breach of the proposed Leadership Code, in accordance with the Constitution and any law;
(b) subject to the discretionary powers of the National Court, to discontinue any such proceedings at any stage before a decision is given; and
(c) to institute and undertake proceedings for breach of any law which makes it an offence to promote, permit or otherwise be a party to a "discriminatory practice" as defined by law.
Note: In this Chapter, "discriminatory practice" includes all those discriminatory practices referred to in the Discriminatory Practices Ordinance.
60. The Public Prosecutor shall also have power to advise the Commissioner of Police, upon request or on his own initiative, in respect of any criminal matter, whether or not proceedings in any court have been instituted.
61. The powers of the Public Prosecutor provided for in Recommendations 56 - 60 above may be exercised by him in person or through other persons acting in accordance with his general or special instructions, as provided by law.
62. The Public Prosecutor may be suspended and removed from office in the same manner as is recommended for the suspension and removal of judges other than the Chief Justice in Part A of this Chapter.
C. THE PUBLIC SOLICITOR
63. There shall be a Public Solicitor whose office shall be a public office.
64. In the exercise of the powers and functions conferred upon him by the Constitution, the Public Solicitor shall not be subject to the direction or control of any other person or authority.
65. A person shall not be qualified to hold or act in the office of Public Solicitor unless he is a lawyer with a total of not less than three years practice in either or both -
(a) the National Court;
(b) the former Supreme Court of Papua New Guinea.
Note: The provisions in Chapter 14 "General" concerning disqualifications from appointment and continuance in office of constitutional office-holders, their tenure and other conditions of service (not including the procedure for suspension and removal from office) apply to the Public Solicitor.
66. The Public Solicitor shall be appointed by the Judicial and Legal Service Commission in accordance with Recommendation 18 in Part A of this Chapter.
67. (1) The Public Solicitor shall provide persons with legal aid on the basis of need in accordance with the Constitution and any law.
(2) In particular (and without limiting the generality of clause (1) above), the Public Solicitor -
(a) shall provide legal representation for all persons in need who are brought before the National Court charged with committing an offence;
(b) may, in his discretion, and in accordance with law, provide legal representation for a person in need who -
(i) is brought before a subordinate court charged with a "serious offence" as defined by law; or
(ii) in the opinion of the Public Solicitor, has reasonable grounds for appealing against a conviction or sentence of any court.
(c) shall have the powers recommended in Part A of Chapter 5, "Human Rights and Obligations" for the protection of human rights; and
(d) shall have such other powers and functions concerning civil and criminal matters according to law.
Note: (i) the "need" of a person should be interpreted subjectively, and without limiting the generality of the term, shall include the means of the person to meet the probable cost of obtaining alternative representation, the availability of such alternative representation and the hardship which might result to the person if compelled to obtain representation other than by the Public Solicitor. Provision should be made by law for the Public Solicitor to make a reasonable charge for services provided by his office to persons in need whom he considers are able to make more than a trivial contribution to the cost of those services; and
(ii) the Committee recommends that all offences which at present may be tried in the Supreme Court should be included within the scope of the definition of a "serious offence" in the relevant legislation.
68. Where a person (or group of persons), has sufficient means to make more than a trivial contribution towards the cost of the legal assistance provided by his Office, the Public Solicitor shall assess a reasonable charge for his services having regard to the capacity of the client to pay, the necessity for legal representation or assistance to be provided for him and the hardship which that person might suffer if he were compelled to obtain representation otherwise than through the Public Solicitor.
69. (1) A person whose application for legal aid has been refused by the Public Solicitor may apply to the National Court for the issue of a legal aid certificate which may be unconditional, or conditional upon payment of a specified sum towards the costs of the proposed proceedings.
(2) When a legal aid certificate has been issued by the National Court in accordance with clause (1) above, the Public Solicitor shall immediately grant legal aid to the person concerned in respect of the case to which the certificate relates, provided that person satisfies any conditions in the certificate for the grant of legal aid as to the payment of a specified sum towards the costs of the proceedings.
70. The Public Solicitor may be suspended and removed from office in the same manner as is recommended for the suspension and removal of judges other than the Chief Justice in Part A of this Chapter.
71. The Public Solicitor shall be provided with a staff adequate in terms of both numbers and qualifications for the efficient discharge of his functions. He shall also be provided with adequate facilities for this purpose.
D. THE POWER OF MERCY
72. The National Executive Council shall have power to -
(a) grant to any person convicted of any offence against the law of Papua New Guinea a pardon, either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, from the carrying out of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for that imposed by any sentence for such an offence; and
(d) remit the whole or any part of any sentence passed for such an offence or any penalty or forfeiture otherwise due to the government for such an offence.
73. There shall be an Advisory Committee on the executive power of mercy, (referred to below as "the Advisory Committee") consisting of five citizens, at least one of whom shall be a woman.
74. The Committee shall be appointed by the National Executive Council upon the submission of the Minister responsible for justice (referred to below as "the Minister") after he has consulted the Permanent Parliamentary Committee responsible for justice and such other bodies or groups as, in his discretion, he thinks fit.
75. (1) The members of the Committee shall be -
(a) a medical practitioner who has experience in psychiatry;
(b) a lawyer of the National Court;
(c) a member of the National Parliament;
(d) a minister of religion; and
(e) a person who has experience in community work.
(2) The Minister shall appoint one of the members of the Advisory Committee as chairman.
76. A member of the Advisory Committee shall hold office for a term of four years and may be re-appointed.
77. A member of the Advisory Committee may be removed by the National Executive Council after prior consultation by the Minister with the Permanent Parliamentary Committee responsible for justice and such other bodies or groups as in his discretion he thinks fit.
78. The Minister shall consult the Advisory Committee before tendering advice or making any submission to the National Executive Council in any case where consideration is or may be given to the granting of a pardon, commutation of a sentence of death, or a reduction, remission, or other form of amelioration of sentence of a person who has been convicted of any offence,
provided that where the Public Prosecutor certifies that in his opinion it is in the interests of justice that a pardon, reduction, remission or other form of amelioration of sentence be offered or granted in a particular case without the necessity for the Advisory Committee to be consulted by the Minister, on the ground that the convicted person is an accomplice who is prepared to give or has given evidence which may contribute to or may have contributed to, the conviction for the principal offender or any of the principal offenders, the Minister may tender advice or make a submission to the National Executive Council concerning that case without such consultation.
79. Whenever the Minister consults the Advisory Committee in accordance with Recommendation 78 above, he shall, at the request of the Chairman of the Committee, make available to the Committee for its consideration such relevant information derived from the record of the case or elsewhere as the Chairman specifies, and shall arrange for a written report on the case from the judge or the magistrate who presided at the trial of the person concerned (as the case may be) to be made available to the Advisory Committee as soon as practicable after the Chairman's request is made.
80. (1) The Advisory Committee shall consider any case referred to it by the Minister in accordance with the Constitution or any law, and make a report on it to the Minister within a reasonable time for the reference being made.
(2) Each report of the Advisory Committee shall be submitted by the Minister responsible for justice to the National Executive Council prior to any decision being made by the Council in respect of a case dealt with by the report, but neither the Minister nor the National Executive Council shall be obliged to accept the advice contained in that report.
(3) Reports of the Advisory Committee shall, except as otherwise provided by law, be confidential.
E. RESOLUTION OF CONSTITUTIONAL QUESTIONS
81. (1) The Supreme Court shall, except as otherwise provided or allowed in the Constitution, have original jurisdiction, to the exclusion of all other courts, to determine any matter concerning any provision of the Constitution.
(2) Without limiting the generality of clause (1) above, the jurisdiction conferred upon the Supreme Court by that clause shall include power to determine any matter -
(a) relating to the enforcement or interpretation of any provision of the Constitution; and
(b) where any question arises as to whether any law has been made or action taken in excess of the powers conferred by the Constitution upon the National Parliament or any other authority or person.
(3) Where any issue relating to any matter or question referred to in clause (1) or (2) above arises in proceedings in any court other than the Supreme Court, that court shall stay the proceedings and refer the issue to the Supreme Court for determination; and the court in which the issue arose shall dispose of the case in accordance with the decision of the Supreme Court.
Note: Specific provision is made in recommendations contained in other chapters, such as Chapter 2, "National Goals and Directive Principles", Chapter 3, "The Leadership Code", Chapter 5, "Human Rights and Obligations and Emergency Powers", Chapter 6, "The Legislature" and Chapter 7, "The Executive" for certain constitutional provisions to be either non justiciable or determined by a court or other judicial body other than the Supreme Court. Special provision has been made in Chapter 10, "Provincial Government" for the resolution of disputes between central government and provincial governments.
82. (1) Except as otherwise provided by the Constitution, and subject to clause (2) below, the Supreme Court shall have exclusive jurisdiction to give an advisory opinion on any matter concerning any provision of the Constitution, including its implementation and enforcement.
(2) The following bodies, only, shall be entitled to seek an advisory opinion of the Supreme Court under clause (1) above -
(a) the National Executive Council;
(b) the First Parliamentary Committee;
(c) the body to be established in accordance with the recommendations in Chapter 10, "Provincial Government" concerning the resolution of disputes between the central government and any provincial government;
(d) the body responsible for recommending changes in existing legislation to achieve conformity with the national goals and directive principles, and human rights and obligations, incorporated in the Constitution.
83. At the hearing by the Supreme Court or any other court or body acting judicially, of any matter concerning any provision of the Constitution, the Report of the Constitutional Planning Committee shall, insofar as it is relevant, be admissible as evidence which may be used as an aid to interpretation.
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