Papua Nueva Guinea

We declare our second goal to be for all citizens to have an equal opportunity

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to participate in, and benefit from, the development of our country.

WE ACCORDINGLY CALL FOR—

(1)

an equal opportunity for every citizen to take part in the political, economic, social, religious and cultural life of the country; and

(2)

the creation of political structures that will enable effective, meaningful participation by our people in that life, and in view of the rich cultural and ethnic diversity of our people for those structures to provide for substantial decentralization of all forms of government activity; and

(3)

every effort to be made to achieve an equitable distribution of incomes and other benefits of development among individuals and throughout the various parts of the country; and

(4)

equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfilment of his or her real needs and aspirations; and

(5)

equal participation by women citizens in all political, economic, social and religious activities; and

(6)

the maximization of the number of citizens participating in every aspect of development; and

(7)

active steps to be taken to facilitate the organization and legal recognition of all groups engaging in development activities; and

(8)

means to be provided to ensure that any citizen can exercise his personal creativity and enterprise in pursuit of fulfilment that is consistent with the common good, and for no citizen to be deprived of this opportunity because of the predominant position of another; and

(9)

every citizen to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of his community; and

(10)

all persons and governmental bodies of Papua New Guinea to ensure that, as far as possible, political and official bodies are so composed as to be broadly representative of citizens from the various areas of the country; and

(11)

all persons and governmental bodies to endeavour to achieve universal literacy in Pisin, Hiri Motu or English, and in "tok ples" or "ita eda tano gado"; and

(12)

recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality.

We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization.

WE ACCORDINGLY CALL FOR—

(1)

a fundamental re-orientation of our attitudes and the institutions of government, commerce, education and religion towards Papua New Guinean forms of participation, consultation, and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the People; and

(2)

particular emphasis in our economic development to be placed on small-scale artisan, service and business activity; and

(3)

recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and

(4)

traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve their cultural, social, economic and ethical quality.

Basic Rights.

WE HEREBY ACKNOWLEDGE that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:—

(a)

life, liberty, security of the person and the protection of the law; and

(b)

the right to take part in political activities; and

(c)

freedom from inhuman treatment and forced labour; and

(d)

freedom of conscience, of expression, of information and of assembly and association; and

(e)

freedom of employment and freedom of movement; and

(f)

protection for the privacy of their homes and other property and from

unjust deprivation of property, and have accordingly included in this Constitution provisions designed to afford protection to those rights and freedoms, subject to such limitations on that protection as are contained in those provisions, being limitations primarily designed to ensure that the enjoyment of the acknowledged rights and freedoms by an individual does not prejudice the rights and freedoms of others or the legitimate public interest.

Basic Social Obligations.

WE HEREBY DECLARE that all persons in our country have the following basic obligations to themselves and their descendants, to each other, and to the Nation:—

(a)

to respect, and to act in the spirit of, this Constitution; and

(b)

to recognize that they can fully develop their capabilities and advance their true interests only by active participation in the development of the national community as a whole; and

(c)

to exercise the rights guaranteed or conferred by this Constitution, and to use the opportunities made available to them under it to participate fully in the government of the Nation; and

(d)

to protect Papua New Guinea and to safeguard the national wealth, resources and environment in the interests not only of the present generation but also of future generations; and

(e)

to work according to their talents in socially useful employment, and if necessary to create for themselves legitimate opportunities for such employment; and

(f)

to respect the rights and freedoms of others, and to co-operate fully with others in the interests of interdependence and solidarity; and

(g)

to contribute, as required by law, according to their means to the revenues required for the advancement of the Nation and the purposes of Papua New Guinea; and

(h)

in the case of parents, to support, assist and educate their children (whether born in or out of wedlock), and in particular to give them a true understanding of their basic rights and obligations and of the

National Goals and Directive Principles; and

(i) in the case of the children, to respect their parents. IN ADDITION, WE HEREBY DECLARE that all citizens have an obligation to themselves and their descendants, to each other and to the Nation to use profits from economic activities in the advancement of our country and our people, and

that the law may impose a similar obligation on non-citizens carrying on economic activities in or from our country.

PART I.—INTRODUCTORY.

Division 1.—The Nation.

10. Construction of written laws.

All written laws (other than this Constitution) shall be read and construed subject to—

(a)

in any case—this Constitution; and

(b)

in the case of Acts of the Parliament—any relevant Organic Laws;

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and

(c) in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.

Division 2.— Constitutional Laws.

Subdivision A.—Supreme Law.

11. Constitution, etc., as Supreme Law.

(1)

This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

(2)

The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

12. Organic Laws.

(1)

For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is—

(a)

for or in respect of a matter provision for which by way of an Organic Law is expressly authorized by this Constitution; and

(b)

not inconsistent with this Constitution; and

(c)

expressed to be an Organic Law.

(2)

An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.

(3) Nothing in this section prevents an Organic Law from—

(a)

making any provision that might be made by an Act of the Parliament; or

(b)

requiring any provision to be made by an Act of the Parliament that

might otherwise be so made, but any such provision may be altered by the same majority that is required for any other Act of the Parliament.

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Subdivision B.—Constitutional Alteration and Organic Laws.

13. Alterations of the Constitution.

This Constitution may be altered only by law made by the Parliament that—

(a)

is expressed to be a law to alter this Constitution; and

(b)

is made and certified in accordance with Section 14 (making of alterations to the Constitution and Organic Laws).

14. Making of alterations to the Constitution and Organic Laws.

(1)

Subject to Sections 12(3) (Organic Laws) and 15 (urgent alterations), a proposed law to alter this Constitution, or a proposed Organic Law, must be supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with Section 17 ("prescribed majority of votes") expressed on at least two occasions after opportunity for debate on the merits.

(2)

Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been—

(a) during different meetings of the Parliament; and

(b)

separated in time by at least two months, and the proposed law must be published by the Speaker in full in the National Gazette, and circulated, in accordance with the Standing Orders of the Parliament,

to all members of the Parliament not less than one month before it is formally introduced into the Parliament.

(3)

Amendments to a proposed law to amend this Constitution or a proposed Organic Law shall not be moved unless they have been circulated to members of the Parliament before the end of the meeting of the Parliament at which the first opportunity for debate referred to in Subsection (1) occurs.

(4)

Subject to Subsection (6), in his certificate given under Section 110 (certification as to making of laws), the Speaker must certify that the requirements of Subsections (1), (2) and (3) or Section 15 (urgent alterations), as the case may be, have been complied with.

(5) The certificate referred to in Subsection (4) shall state—

(a)

the date on which each vote was taken; and

(b)

in relation to each vote—

(i)

the number of seats in the Parliament at the time; and

(ii)

the respective numbers of members of the Parliament voting for and against the proposal, and where the requirements of

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Subsection (2) were waived under Section 15 (urgent

alterations) for and against the motion for the waiver, and is, in the absence of proof to the contrary, conclusive evidence of the matter so stated.

(6) Unless the Parliament decides otherwise in any particular case, Subsection (1) does not apply where the Speaker, after consultation with the Chief Justice or a Judge nominated by the Chief Justice for the purpose, certifies that the proposed law—

(a)

does not affect the substance of any provision to be altered by it; or

(b)

is designed to correct a self-evident error or omission; or

(c)

is merely incidental to or consequential on some other alteration of

this Constitution or of any other law, and such a law may be made in the same way as Acts of the Parliament.

(7) The Supreme Court may, on the application of any person made within four weeks after the date of a certificate under Subsection (6) or such further time as a Judge, on application made within that period, considers reasonable in the particular circumstances, disallow the certificate, but otherwise the certificate is conclusive.

15. Urgent alterations.

(1)

The provisions of this section cease to have effect at the first moment of the fourth anniversary of Independence Day.

(2)

Subject to Subsection (5), the requirements of Section 14(2) (making of alterations to the Constitution and Organic Laws) may be waived, on the ground of urgency, by the Parliament by a division in accordance with the Standing Orders of the Parliament by a two-thirds absolute majority vote.

(3)

The requirements of Section 14(2) (making of alterations to the Constitution and Organic Laws) shall not be waived under Subsection (2) unless—

(a)

at least four days' notice of the intention in accordance with the Standing Orders of the Parliament to invoke Subsection (2) has been given; and

(b)

the proposed law has been circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament and published in full by the Speaker in the National Gazette at least four days before the motion to invoke Subsection (2) is moved; and

(c)

the opportunities for debate referred to in Section 14(1) (making of

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alterations to the Constitution and Organic Laws) have been separated in time by at least two weeks, but not necessarily during different meetings of the Parliament.

(4)

Amendments to a proposed law to amend this Constitution or a proposed Organic Law to which this section applies shall not be moved unless they have been circulated to members of the Parliament before the end of the first debate on the matter.

(5)

This section does not apply to proposed laws to alter the following provisions of this Constitution, or Organic Laws made for the purposes of any such provision:—

(a)

this section;

(b)

the Preamble;

(c)

Division II.2. (Constitutional Laws);

(d) Division III.1. (National Goals and Directive Principles);

(e)

Division III.2. (leadership code);

(f)

Division III.3. (basic rights);

(g) Division III.5. (basic social obligations);

(h) Part IV. (citizenship);

(i)

Division VI.2. (the National Parliament);

(j)

Division VI.3. (special instances of the legislative powers);

(k)

Division VI.5. (the administration of justice); (ka) Part VIA. (provincial government and local level government);

(l)

Division VII.2. (the Public Services Commission);

(m)

Division VII.4. (special provisions in relation to the Police Force);

(n)

Division VII.5. (special provisions in relation to the Defence Force);

(o)

Part VIII. (supervision and control);

(p)

Part IX. (constitutional office-holders and constitutional institutions);

(q)

Part X. (emergency powers).

16. Indirect alterations.

(1)

No Constitutional Law takes effect so as to affect the operation of any provision of such a law in force immediately before the commencement of the first-mentioned law unless it was made in the manner and form required for the alteration of that provision.

(2)

For the avoidance of doubt, it is hereby declared that Subsection (1) extends to Schedule 1 (Rules for Shortening and Interpretation of the Constitutional Laws) in its application to any provision of this Constitution.

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17. "Prescribed majority of votes".

(1)

Subject to this section, in relation to a proposed law to alter any provision of this Constitution the prescribed majority of votes for the purposes of Section 14 (making of alterations to the Constitution and Organic Laws) is the majority of votes prescribed by this Constitution in relation to that provision, or if no majority is prescribed a two-thirds absolute majority vote.

(2)

For the purposes of Subsection (1) the prescribed majority of votes for this subsection, Sections 3, 6, 8, 20, 21, 23, 24, 26 to 31 (inclusive), 63, 68, 69, 73, 77 to 98 (inclusive), 101, 103, 104, 110, 117, 138, 139, 150, 156, 165, 167, 171, 184 to 187 (inclusive), 206, 248 to 252 (inclusive), 264 to 268 (inclusive), Sch.1.21, Sch.2.1 to Sch.2.14 (inclusive), Schedules 3, 4 and 5 is an absolute majority.

(3)

For the purposes of Subsection (1) the prescribed majority of votes for this subsection, Sections 35, 36, 50, 57, 105, 106, 109, 113, 125, 126, 155, 157, 160, 163, 217, 235, 239, 243, 244, 245 and 269 is a three-quarters absolute majority.

(4)

Subject to this section, for the purpose of a proposed law to add a new provision to this Constitution the prescribed majority of votes is the same as the prescribed majority of votes that would be required to alter that provision if it was already enacted.

(5)

Subject to Section 12(3) (Organic Laws), in relation to a proposed Organic Law the prescribed majority of votes is—

(a)

in the case of a proposed Organic Law to alter a provision of an Organic Law—the same as the majority that would be required for the making of the provision proposed to be altered; and

(b)

in any other case—

(i)

the majority of votes (not being less than an absolute majority) prescribed by this Constitution for the making of the Organic Law; and

(ii)

if no majority is prescribed, a two-thirds absolute majority.

(6)

Where, by virtue of the operation of the preceding provisions of this section, there are different prescribed majorities in relation to different provisions of a proposed law, the prescribed majority of votes in relation to the law as a whole is the greatest of those majorities.

(7)

Nothing in this section prevents different majorities being prescribed in respect of different aspects or subject-matters of a provision.

(8)

No Organic Law may require a majority of votes for the alteration of a provision of an Organic Law greater than that by which the first-mentioned law was made.

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(9) Notwithstanding anything in this section, until 16 September 1980—

(a)

for the purpose of a proposed law to add a new provision to this Constitution, the prescribed majority of votes is an absolute majority; and

(b)

for the purpose of making an Organic Law for which there was provision in this Constitution when adopted the prescribed majority of votes is an absolute majority.

Subdivision C.—Constitutional Interpretation.

18. Original interpretative jurisdiction of the Supreme Court.

(1)

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

(2)

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

19. Special references to the Supreme Court.

(1)

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

(2)

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

(3)

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

(a)

the Parliament; and

(b)

the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and

(c)

the Law Officers of Papua New Guinea; and

(d)

the Law Reform Commission; and

(e)

the Ombudsman Commission; and

(ea) a Provincial Assembly or a Local-level Government; and (eb) a provincial executive; and

(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

(4)

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

(a)

the form and contents of questions to be decided by the Court; and

(b)

the provision of counsel adequate to enable full argument before the Court of any question; and

(c)

cases and circumstances in which the Court may decline to give an opinion.

(5)

In this section, "proposed law" means a law that has been formally placed before the relevant law-making body.

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

20. Underlying law and pre-Independence statutes.

(1)

An Act of Parliament shall—

(a)

declare the underlying law of Papua New Guinea; and

(b)

provide for the development of the underlying law of Papua New Guinea.

(2)

Until such time as an Act of Parliament provides otherwise—

(a)

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

(b)

the manner of development of the underlying law shall be as prescribed by Schedule 2 (adoption, etc., of certain laws).

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

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21. Purpose of Schedule 2.

(1)

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

(2)

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

Division 4.—General.

22. Enforcement of the Constitution.

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

23. Sanctions.

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

(a)

impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or

(b)

in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

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

(2)

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

(3)

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

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24. Use of certain materials as aids to interpretation.

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

(a) in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and

(b)

in the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purposes of or in connection with those debates, may be used, so far as they are

relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.

(2)

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

(3)

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

PART III.—BASIC PRINCIPLES OF GOVERNMENT.

Division 1.—National Goals and Directive Principles.

25. Implementation of the National Goals and Directive Principles.

(1)

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

(2)

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

(3)

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

(4)

Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or of any other body prescribed for the purposes of Division III.2 (leadership code), which shall take the National Goals and Directive Principles

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fully into account in all cases as appropriate.

Division 2.—Leadership Code.

26. Application of Division 2.

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

(a)

the Prime Minister, the Deputy Prime Minister and the other Ministers; and

(b)

the Leader and Deputy Leader of the Opposition; and

(c)

all other members of the Parliament; and

(d)

members of Provincial Assemblies and Local-level Governments; and

(e)

all constitutional office-holders within the meaning of Section 221 (definitions); and

(f)

all heads of Departments of the National Public Service; and

(g)

all heads of or members of the boards or other controlling bodies of statutory authorities; and

(h)

the Commissioner of Police; and

(i)

the Commander of the Defence Force; and

(j)

all ambassadors and other senior diplomatic and consular officials prescribed by an Organic Law or an Act of the Parliament; and

(k)

the public trustee; and

(l)

the personal staff of the Governor-General, the Ministers and the Leader and Deputy Leader of the Opposition; and

(m)

executive officers of registered political parties as defined by Section 128 ("registered political party"); and

(n)

persons holding such public offices as are declared under Subsection

(3) to be offices to and in relation to which this Division applies.

(2)

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

(3)

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

(4)

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

27. Responsibilities of office.

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(1)

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

(a)

to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or

(b)

to demean his office or position; or

(c)

to allow his public or official integrity, or his personal integrity, to be called into question; or

(d)

to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2)

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

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

(a)

to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and

(b)

if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4)

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

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

(a)

is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or

(b)

fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),

is guilty of misconduct in office.

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28. Further provisions.

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

(a)

may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and

(b)

shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and

(c)

shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and

(d)

may prescribe specific acts that constitute misconduct in office; and

(e)

may create offences (including offences by persons to whom this Division applies and offences by other persons); and

(f)

shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and

(g)

shall establish independent tribunals that—

(i)

shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and

(ii)

are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and

(h)

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

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

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and

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(b) public policy and the public good do not require dismissal,

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

(2)

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

(3)

For the purposes of Subsections (1)(g), (1A) and (2), "the appropriate authority"—

(a) in relation to—

(i)

a person holding an office referred to in Section 26(1)(a), (b),

(c) or (d) (application of Division 2); or

(ii)

a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

means the Head of State; and

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

(4)

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

(5)

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

(a)

no such proceedings are a bar to any other proceedings provided for by law; and

(b)

no other proceedings provided for by law are a bar to proceedings under that paragraph.

29. Prosecution of misconduct in office.

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

(2) If the Public Prosecutor fails to prosecute the matter within a reasonable

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period, the Commission may prosecute it in his stead.

30. Other authority.

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

(a)

shall be composed of a person or persons who are declared under Section 221(1) (definitions) to be a constitutional office-holder; and

(b)

is not subject to direction or control by any person or authority.

31. Disqualifications on dismissal.

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

(a)

to election to any elective public office; or

(b)

for appointment as Head of State or as a nominated member of the Parliament; or

(c)

for appointment to a provincial legislature or provincial executive (including the office of head of a provincial executive), or to a local-level government body,

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

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

Division 3.—Basic Rights.

Subdivision A.—Introductory.

32. Right to freedom.

(1)

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

(2)

Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a) does not injure or interfere with the rights and freedoms of others; and

(b)

is not prohibited by law, and no person—

(c)

is obliged to do anything that is not required by law; and

(d)

may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

(3)

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

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33. Other rights and freedoms, etc.

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

34. Application of Division 3.

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

(a)

as between individuals as well as between governmental bodies and individuals; and

(b)

to and in relation to corporations and associations (other than governmental bodies) in the same way as it applies to and in relation to individuals,

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

Subdivision B.—Fundamental Rights.

35. Right to life.

(1) No person shall be deprived of his life intentionally except—

(a)

in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(b)

as the result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law—

(i)

for the defence of any person from violence; or

(ii)

in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(iii) for the purpose of suppressing a riot, an insurrection or a mutiny; or

(iv)

in order to prevent him from committing an offence; or

(v)

for the purpose of suppressing piracy or terrorism or similar acts; or

(c)

as the result of a lawful act of war.

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

36. Freedom from inhuman treatment.

(1)

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

(2)

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

37. Protection of the law.

(1)

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

(2)

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

(3)

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

(4) A person charged with an offence—

(a)

shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(b)

shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and

(c)

shall be given adequate time and facilities for the preparation of his defence; and

(d)

shall be permitted to have without payment the assistance of an

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interpreter if he cannot understand or speak the language used at the trial of the charge; and

(e)

shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f)

shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5)

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

(6)

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

(7)

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

(8)

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

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

(10)

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

(11)

A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority

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prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

(12)

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

(13)

Nothing in Subsection (12) prevents a court or other authority from excluding from the hearing of the proceedings before it persons, other than the parties and their legal representatives, to such an extent as the court or other authority—

(a)

is by law empowered to do and considers necessary or expedient in the interests of public welfare or in circumstances where publicity would prejudice the interests of justice, the welfare of persons under voting age or the protection of the private lives of persons concerned in the proceedings; or

(b)

is by law empowered or required to do in the interests of defence, public safety or public order.

(14)

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

(15)

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

(16)

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

(17)

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

(18)

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

(19)

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

(20)

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

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offender.

(21) Nothing in this section—

(a)

derogates Division III.4 (principles of natural justice); or

(b)

affects the powers and procedures of village courts.

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

Subdivision C.—Qualified Rights.

General.

38. General qualifications on qualified rights.

(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—

(a)

regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—

(i)

taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A)

defence; or

(B)

public safety; or

(C)

public order; or

(D)

public welfare; or

(E)

public health (including animal and plant health); or

(F)

the protection of children and persons under disability (whether legal or practican( � or

(G)

the development of under-privileged or less advanced groups or areas; or

(ii)

in order to protect the exercise of the rights and freedoms of others; or

(b)

makes reasonable provision for cases where the exercise of one such

right may conflict with the exercise of another, to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must—

(a) be expressed to be a law that is made for that purpose; and

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(b)

specify the right or freedom that it regulates or restricts; and

(c)

be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

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

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

(1)

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

(2)

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

(3)

For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to—

(a)

the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and

(b)

the Charter of the United Nations; and

(c)

the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and

(d)

the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and

(e)

judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and

(f)

previous laws, practices and judicial decisions and opinions in the country; and

(g)

laws, practices and judicial decisions and opinions in other countries;

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and

(h)

the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and

(i)

declarations by the International Commission of Jurists and other similar organizations; and

(j)

any other material that the court considers relevant.

40. Validity of emergency laws.

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

41. Proscribed acts.

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a)

is harsh or oppressive; or

(b)

is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c)

is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)

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

(3)

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

Rights of All Persons.

42. Liberty of the person.

(1) No person shall be deprived of his personal liberty except—

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(a)

in consequence of his unfitness to plead to a criminal charge; or

(b)

in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c)

by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d)

upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e)

for the purpose of bringing him before a court in execution of the order of a court; or

(f)

for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g)

for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h)

in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i)

his care or treatment or the protection of the community, under an order of a court; or

(ii)

taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i)

in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

(2) A person who is arrested or detained—

(a)

shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b)

shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c)

shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.

(3) A person who is arrested or detained—

(a)

for the purpose of being brought before a court in the execution of an order of a court; or

(b)

upon reasonable suspicion of his having committed, or being about to

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

(4)

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

(5)

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a)

the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b)

unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

(6)

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

(7) Where a person to whom Subsection (6) applies is refused bail—

(a)

the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and

(b)

the person or his representative may apply to the Supreme Court or the National Court in a summary manner for his release.

(8)

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

(9)

Subject to any Constitutional Law or Act of the Parliament, nothing in this section applies in respect of a person who is in custody under the law of another country—

(a)

while in transit through the country; or

(b)

as permitted by or under an Act of the Parliament made for the purposes of Section 206 (visiting forces).

43. Freedom from forced labour.

(1)

No person shall be required to perform forced labour.

(2)

In Subsection (1), "forced labour" does not include—

(a)

labour required by the sentence or order of a court; or

(b)

labour required of a person while in lawful custody, being labour that, although not required by the sentence or order of a court, is necessary for the hygiene of, or for the maintenance of, the place in which he is in custody; or

(c)

in the case of a person in custody for the purpose of his care, treatment, rehabilitation or welfare, labour reasonably required for that purpose; or

(d)

labour required of a member of a disciplined force in pursuance of his duties as such a member; or

(e)

subject to the approval of any local government body for the area in which he is required to work, labour reasonably required as part of reasonable and normal communal or other civic duties; or

(f)

labour of a reasonable amount and kind (including in the case of compulsory military service, labour required as an alternative to such service in the case of a person who has conscientious objections to military service) that is required in the national interest by an Organic Law that complies with Section 38 (general qualifications on qualified rights).

44. Freedom from arbitrary search and entry.

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

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

(i)

under an order made by a court; or

(ii)

under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv)

that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v)

for the purpose of inspecting or taking copies of documents relating to—

(A)

the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or

(B)

the affairs of a company in accordance with a law relating to companies; or

(vi)

for the purpose of inspecting goods or inspecting or taking copies of documents, in connection with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or

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

45. Freedom of conscience, thought and religion.

(1) Every person has the right to freedom of conscience, thought and religion

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

(2)

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

(3)

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

(4)

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

(5)

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

46. Freedom of expression.

(1)

Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law—

(a)

that imposes reasonable restrictions on public office-holders; or

(b)

that imposes restrictions on non-citizens; or

(c) that complies with Section 38 (general qualifications on qualified rights). (2) In Subsection (1), "freedom of expression and publication" includes—

(a)

freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and

(b)

freedom of the press and other mass communications media.

(3)

Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations—

(a)

for the communication of ideas and information; and

(b)

to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,

and generally for enabling and encouraging freedom of expression.

47. Freedom of assembly and association.

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

(a)

that makes reasonable provision in respect of the registration of all or any associations; or

(b)

that imposes reasonable restrictions on public office-holders; or

(c)

that imposes restrictions on non-citizens; or

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

48. Freedom of employment.

(1)

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

(2)

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

49. Right to privacy.

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

Special Rights of Citizens.

50. Right to vote and stand for public office.

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a)

is under sentence of death or imprisonment for a period of more than nine months; or

(b)

has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,

has the right, and shall be given a reasonable opportunity—

(c)

to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d)

to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e)

to hold public office and to exercise public functions.

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

51. Right to freedom of information.

(1)

Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of—

(a)

matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization); or

(b)

records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities as are prescribed by Organic Law or Act of the Parliament; or

(c)

trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or

(d)

parliamentary papers the subject of parliamentary privilege; or

(e)

reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to completion; or

(f)

papers relating to lawful official activities for investigation and prosecution of crime; or

(g)

the prevention, investigation and prosecution of crime; or

(h)

the maintenance of personal privacy and security of the person; or

(i)

matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for the regulation or supervision of financial institutions; or

(j)

geological or geophysical information and data concerning wells and ore bodies.

(2)

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

(3)

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

(4) This section does not authorize—

(a)

withholding information or limiting the availability of records to the public except in accordance with its provisions; or

(b)

withholding information from the Parliament.

52. Right to freedom of movement.

(1)

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

(2)

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

(3)

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

53. Protection from unjust deprivation of property.

(1) Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—

(a) the property is required for—

(i)

a public purpose; or

(ii)

a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind,

that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and

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(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.

(2)

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

(3)

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

(4)

In this section, a reference to the taking of possession of property, or the acquisition of an interest in or right over property, includes a reference to—

(a)

the forfeiture; or

(b)

the extinction or determination (otherwise than by way of a reasonable provision for the limitation of actions or a reasonable law in the nature of prescription or adverse possession),

of any right or interest in property.

(5) Nothing in the preceding provisions of this section prevents—

(a)

the taking of possession of property, or the acquisition of an interest in or right over property, that is authorized by any other provision of this Constitution; or

(b)

any taking of possession or acquisition—

(i)

in consequence of an offence or attempted offence against, or a breach or attempted breach of, or other failure to comply with a law; or

(ii)

in satisfaction of a debt or civil obligation; or

(iii) subject to Subsection (6), where the property is or may be required as evidence in proceedings or possible proceedings before a court or tribunal,

in accordance with a law that is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind; or

(c) any taking of possession or acquisition that was an incident of the grant or acceptance of, or of any interest in or right over, that property or any other property by the holder or any of his predecessors in title; or

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(d)

any taking of possession or acquisition that is in accordance with custom; or

(e)

any taking of possession or acquisition of ownerless or abandoned property (other than customary land); or

(f)

any restriction on the use of or on dealing with property or any interest in or right over any property that is reasonably necessary for the preservation of the environment or of the national cultural inheritance.

(6)

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

(7)

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

54. Special provision in relation to certain lands.

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

(a)

for the recognition of the claimed title of Papua New Guinea to land where—

(i)

there is a genuine dispute as to whether the land was acquired validly or at all from the customary owners before Independence Day; and

(ii)

if the land were acquired compulsorily the acquisition would comply with Section 53(1) (protection from unjust deprivation of property); or

(b)

for the settlement by extra-judicial means of disputes as to the ownership of customary land that appear not to be capable of being reasonably settled in practice by judicial means; or

(c)

for the prohibition or regulation of the holding of certain interests in, or in relation to, some or all land by non-citizens.

55. Equality of citizens.

(1)

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

(2)

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

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

56. Other rights and privileges of citizens.

(1)

Only citizens may—

(a)

vote in elections for, or hold, elective public offices; or

(b)

acquire freehold land.

(2)

An Act of the Parliament may—

(a)

define the offices that are to be regarded as elective public offices; and

(b)

define the forms of ownership that are to be regarded as freehold; and

(c)

define the corporations that are to be regarded as citizens, for the purposes of Subsection (1).

(3)

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

Subdivision D.—Enforcement.

57. Enforcement of guaranteed rights and freedoms.

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

(2) For the purposes of this section—

(a)

the Law Officers of Papua New Guinea; and

(b)

any other persons prescribed for the purpose by an Act of the Parliament; and

(c)

any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms

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referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3)

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

(4)

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

(5)

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

(6)

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

58. Compensation.

(1)

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

(2)

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

(3)

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

(4)

Where the infringement was committed by a governmental body, damages may be awarded either—

(a)

subject to Subsection (5), against a person referred to in Subsection (3); or

(b)

against the governmental body to which any such person was

responsible, or against both, in which last case the court may apportion the damages between

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them.

(5) Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if—

(a)

the action was an action made unlawful only by Section 41(1) (proscribed acts); and

(b)

the action taken was genuinely believed by that person to be required

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

Division 4.—Principles of Natural Justice.

59. Principles of natural justice.

(1)

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

(2)

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

60. Development of principles.

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

61. Basic rights and freedoms.

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

62. Decisions in "deliberate judgement".

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

(2) Except—

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(a)

to the extent provided for by Subsection (1); and

(b)

in accordance with Section 155(5) (the National Judicial System); and

(c)

as provided by a Constitutional Law or an Act of the Parliament,

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

Division 5.—Basic Social Obligations.

63. Enforcement of the Basic Social Obligations.

(1)

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

(2)

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

(3)

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

(4)

Subsection (1) does not apply in the exercise of the jurisdiction of the Ombudsman Commission or other body prescribed for the purposes of Division

III.2 (leadership code), which shall take the Basic Social Obligations fully into account in all cases as appropriate.

PART IV.—CITIZENSHIP.

Division 1.—Introductory.

64. Dual citizenship.

(1)

Notwithstanding the succeeding provisions of this Part but subject to Subsection (2), no person who has a real foreign citizenship may be or become a citizen, and the provisions of this Part shall be read subject to that prohibition.

(2)

Subsection (1) does not apply to a person who has not yet reached the age of 19 years, provided that, before he reaches that age and in such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the Declaration of Loyalty.

(3)

A person who has a real foreign citizenship and fails to comply with Subsection (2) ceases to be a citizen of Papua New Guinea when he reaches the

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age of 19 years.

(4) For the purposes of this section, a person who—

(a)

was, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of—

(i)

birth in the former Territory of Papua; or

(ii)

birth in the former Territory of New Guinea and registration under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; and

(b)

was never granted a right (whether revocable or not) to permanent

residence in Australia, has no real foreign citizenship.

Division 2.—Acquisition of Citizenship.

65. Automatic citizenship on Independence Day.

(1)

A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.

(2)

A person born outside the country before Independence Day who has two grand-parents born in the country is a citizen as from Independence Day if—

(a)

within one year after Independence Day or such longer period as the Minister responsible for citizenship matters allows in a particular case, application is made by him or on his behalf for registration as a citizen; and

(b)

he renounces any other citizenship and makes the Declaration of Loyalty—

(i)

if he has not reached the age of 19 years—in accordance with Section 64(2) (dual citizenship); or

(ii)

if he has reached the age of 19 years—at or before the time when the application is made.

(3)

In Subsection (1), "adjacent area" means an area that immediately before Independence Day constituted—

(a)

the Solomon Islands; or

(b)

the Province of the Republic of Indonesia known as Irian Jaya; or

(c)

the islands in Torres Straits annexed to the then Colony of Queensland under Letters Patent of the United Kingdom of Great Britain and Ireland bearing date the 10th day of October in the forty-second year of the reign of Her Majesty Queen Victoria (that is, 1878),

not forming on Independence Day part of the area of Papua New Guinea.

(4) Subsections (1) and (2) do not apply to a person who—

(a)

has a right (whether revocable or not) to permanent residence in Australia; or

(b)

is a naturalized Australian citizen; or

(c)

is registered as an Australian citizen under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; or

(d)

is a citizen of a country other than Australia,

unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with Subsection (5).

(5)

A person to whom Subsection (4) applies may, within the period of two months after Independence Day and in such manner as may be prescribed by or under an Act of the Parliament, renounce his right to permanent residence in Australia or his status as an Australian citizen or as a citizen of another country and make the Declaration of Loyalty.

(6)

Where in his opinion it is just to do so, the Minister responsible for citizenship matters may in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), extend the period of two months referred to in Subsection (4), but unless the Minister is satisfied that the applicant—

(a)

assumed in error that he was a citizen; or

(b)

did not know that he was not a citizen; or

(c)

had no reasonable opportunity or not enough time to determine his

status, the period may not be extended beyond a further two months.

66. Citizenship by descent.

(1) A person who—

(a)

is born in the country on or after Independence Day; and

(b)

had one parent who was a citizen or who, if he had survived to Independence Day, would have been or would have been entitled to become, such a citizen,

is a citizen.

(2) A person—

(a)

who is born outside the country on or after Independence Day; and

(b)

who had one parent who was a citizen or who, if he had survived to Independence Day, would have been, or would have been entitled to

become, such a citizen; and

(c)

whose birth is registered as prescribed by or under an Act of the

Parliament made for the purposes of this subsection, is a citizen.

67. Citizenship by naturalization.

(1)

A person who has resided continuously in the country for at least eight years may apply to the Minister responsible for citizenship matters to be naturalized as a citizen, and the Minister may, if he is satisfied as to the matters referred to in Subsection (2), in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), grant or refuse the application.

(2) To be eligible for naturalization, a person must—

(a)

be of good character; and

(b)

intend to reside permanently in the country; and

(c)

unless prevented by physical or mental disability, speak and understand Pisin or Hiri Motu, or a vernacular of the country, sufficiently for normal conversational purposes; and

(d)

have a respect for the customs and cultures of the country; and

(e)

be unlikely to be or become a charge on public funds; and

(f)

have a reasonable knowledge and understanding of the rights, privileges, responsibilities and duties of citizenship; and

(g)

renounce, in such manner as is prescribed by or under an Act of the Parliament, any other citizenship and make the Declaration of Loyalty.

(3)

If an applicant for naturalization so requests, any child of the applicant who is under voting age at the time when the applicant is naturalized becomes a citizen by naturalization on the naturalization of the applicant.

68. Special provisions relating to naturalization.

(1)

A person who is eligible to become a citizen under Section 67(1) (citizenship by naturalization) and holds an executive office by virtue of being a member of an elective body shall cease to hold that office at the expiration of a period of two months after Independence Day unless within that time he makes application under that section to be naturalized and that application is granted.

(2)

Without limiting the matters that may be taken into account in deciding on the application for naturalization, under Section 67 (citizenship by naturalization) the following matters shall be taken into account in deciding on an application that is made during the first eight years after Independence Day:—

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(a)

if the applicant is a person to whom Section 65(4) (automatic citizenship on Independence Day) applies, whether he acquired the right of permanent residence in Australia or became an Australian citizen otherwise than by reason of a voluntary act (other than marriage) on his part; and

(b)

whether the applicant has at any time accepted pay and conditions of employment that were not in general applicable—

(i)

before Independence Day, to persons who qualify or would, if they had survived to that day, have qualified for citizenship under Section 65 (automatic citizenship on Independence Day); or

(ii)

after Independence Day, to citizens; and

(c)

whether the major part of the investment and business interests of the applicant are and have been in the country; and

(d)

whether the applicant is or has been married to a citizen or to a person who, if he had survived to Independence Day, would have been, or would have been entitled to become, a citizen, and the nature of the family ties of the applicant; and

(e)

the length and nature of the residence of the applicant in the country; and

(f)

any performance by the applicant of services beneficial to Papua New Guinea or its people; and

(g)

any sacrifices made by the applicant in the interests of Papua New Guinea or its people; and

(h)

the applicant's knowledge of Pisin or Hiri Motu or of a vernacular of the country; and

(i)

whether or not the application of the applicant includes the children (if any) under voting age of the applicant; and

(j)

any references given as to the good character and suitability for citizenship of the applicant; and

(k)

the place of birth and the parentage of the applicant.

(3) Notwithstanding anything in a Constitutional Law, a benefit, right or privilege, directly or indirectly, conferred upon "Papua New Guineans" or "natives" or "local persons" or "non-overseas persons" or "citizens" (where that term is to take effect after the making of a law relating to citizenship) by any pre-Independence law shall continue to be enjoyed only by persons who became citizens of Papua New Guinea under Section 65 (automatic citizenship on Independence Day) but only—

(a) for a period of ten years after Independence Day; or

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(b) until an Act of the Parliament takes away that benefit, right or

privilege, whichever first occurs.

(4)

Notwithstanding anything in a Constitutional Law, during the five years after Independence Day only persons who become citizens of Papua New Guinea under Section 65 (automatic citizenship on Independence Day) shall have the rights conferred by Section 53 (protection from unjust deprivation of property) except that during this period the rights of a person who becomes a citizen otherwise than under Section 65 (automatic citizenship on Independence Day) in respect of his property shall not be less than those accorded by law to non-citizens.

(5)

Notwithstanding anything in a Constitutional Law, but subject to Subsection (6), an Act of the Parliament made in the period of ten years after Independence Day may confer a benefit, right or privilege on persons who became citizens of Papua New Guinea under Section 65 (automatic citizenship on Independence Day).

(6) An Act of the Parliament referred to in Subsection (5)—

(a)

shall not derogate the rights conferred by Sections 32 to 58 (basic rights) except the rights conferred by Section 55 (equality of citizens); and

(b)

shall be for the purpose of giving advantage or assistance to persons who become citizens of Papua New Guinea under Section 65 (automatic citizenship on Independence Day).

69. Application for naturalization.

(1)

Subject to Subsection (2), an application for naturalization under Section 67 (citizenship by naturalization) must be made—

(a)

in the case of a person who has resided continuously in the country for eight years or more before Independence Day—within two months after Independence Day; and

(b)

in the case of any other person—within two months after the completion by him of eight years continuous residence in the country.

(2)

Where in his opinion it is just to do so, the Minister responsible for citizenship matters may in his deliberate judgement, (but subject to Division 4 (Citizenship Advisory Committee)) extend the periods referred to in Subsection (1) where he is satisfied that—

(a)

the person was unaware of the provisions of Subsection (1); or

(b)

there are special circumstances.

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Division 3.—Loss and Regaining of Citizenship.

70. Automatic loss of citizenship.

(1) A citizen who has reached voting age and is of full capacity who—

(a)

obtains the nationality or citizenship of another country by a voluntary act (other than marriage); or

(b)

exercises a right that is exclusive to nationals or citizens of another country, unless the Minister responsible for citizenship matters is satisfied that the right was exercised inadvertently; or

(c)

takes an oath or makes a declaration or affirmation of allegiance to another country or to the Sovereign or Head of State of another country; or

(d)

does, agrees to or adopts any act (other than marriage) by which he becomes a national or citizen of another country; or

(e)

enters or serves in the armed forces of another country, except with the express approval of the Head of State, acting with, and in accordance with, the advice of the National Executive Council; or

(f)

except as permitted by an Act of the Parliament, votes in a national, provincial, state or local election, or accepts elective office, of another country; or

(g)

subject to Subsection (3), travels under the protection of a passport or purported passport of another country in which he is described as a citizen or national of that country,

loses his citizenship.

(2) A person who is found by a court to have obtained citizenship by a false representation, fraud or concealment of a material fact on his part loses his citizenship, unless the Minister responsible for citizenship matters is satisfied that the offence was of a minor nature and that revelation of the true fact would not have affected the grant of naturalization.

(3) Subsection (1)(g) does not apply to—

(a)

a person who is absent from the country on Independence Day, who continues to travel under the protection of a passport of another country, but only until—

(i)

the expiration of the then-current period of validity of the passport; or

(ii)

his return to the country, whichever first happens; or

(b)

a person travelling under the protection of the passport of a parent or guardian; or

(c)

a person travelling under the protection of a passport of another country with the approval of the Minister responsible for citizenship matters.

71. Acts done under compulsion of law.

The preceding provisions of this Division do not apply to any act done under compulsion of law of another country.

72. Renunciation of citizenship.

(1)

Subject to Subsections (2) and (3), a citizen who has reached voting age and is of full capacity may renounce his citizenship in such manner and on such conditions as are prescribed by or under an Act of the Parliament.

(2) A person may not renounce his citizenship unless—

(a)

he already holds some other nationality or citizenship; or

(b)

the renunciation is for the purpose of his obtaining some other nationality or citizenship.

(3)

During a time of war, citizenship may not be renounced without the prior consent of the Minister responsible for citizenship matters.

73. Regaining citizenship.

(1)

Subject to Subsection (2), citizenship once lost can be regained—

(a)

in the case of citizenship by virtue of Section 65 (automatic citizenship on Independence Day) or 66 (citizenship by descent)—only after five years' continuous residence in the country after the loss of citizenship, and in the deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)) of the Minister responsible for citizenship matters; and

(b)

in the case of citizenship by naturalization—only in accordance with the law relating to naturalization, for which purpose any period of residence in the country before the loss of citizenship shall be disregarded.

(2)

Where a person—

(a) was a citizen by virtue of Section 65 (automatic citizenship on Independence Day) or 66 (citizenship by descent); and

(b)

married, before, on or after Independence Day, a person who was a national or citizen of another country; and

(c)

became, on or during the marriage, a national or citizen of the country

of which his spouse was at that time a national or citizen, and the marriage has permanently broken up, the reference in Subsection (1)(a) to a period of five years shall be read as a reference to a period of three years commencing—

(d)

if the person was, at the time when the marriage broke up, resident in the country—on the date on which it broke up; or

(e)

if the person was at that time resident outside the country—on his return to reside in the country.

74. Loss and regaining of citizenship by certain children.

(1) Where—

(a)

a parent of a child loses his citizenship; and

(b)

the Minister is satisfied on application on behalf of the child that it is

for the welfare of the child to do so, the Minister responsible for citizenship matters may, by order, deprive the child of his citizenship.

(2)

A person aggrieved by an order under Subsection (1) may appeal to the National Court.

(3)

An Act of the Parliament may make special provision to facilitate the regaining of citizenship by persons who lose their citizenship by reason of the loss of citizenship by a parent.

Division 4.—Citizenship Advisory Committee.

75. The Committee.

(1) An Act of the Parliament shall make provision for a Citizenship Advisory Committee, all of the members of which must be citizens (other than naturalized citizens).

(2) The Committee shall consist of—

(a)

four permanent members, at least two of whom are members of the Parliament other than Ministers; and

(b)

one ad hoc member to represent the community in which the person to whom a matter before the Committee relates resides.

76. Functions of the Committee.

(1) Before taking any action under this Part in relation to a person, the

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Minister responsible for citizenship matters shall refer the matter to the Citizenship Advisory Committee and receive its advice.

(2)

If the Minister refuses to accept the advice of the Committee on any matter referred to it under Subsection (1), he shall, if so requested by a person affected or by the Committee, give to the Parliament, as soon as practicable, a statement on the matter setting out the reasons for his refusal, and the Parliament may reverse his decision on such conditions as it thinks proper.

(3)

The reversal by the Parliament of a decision to grant or to allow the regaining of citizenship, or to grant a certificate under Section 81 (certificate as to citizenship), takes effect, subject to any conditions to which it is made subject, as a deprivation of citizenship on the date of the reversal.

(4)

The reversal by the Parliament of a decision to refuse to grant citizenship to a person, to deprive a person of citizenship or to refuse to grant a certificate under Section 81 (certificate as to citizenship) takes effect retrospectively to the date of the decision.

(5)

The Committee has such powers and such other functions and duties as are conferred or imposed by or under an Act of the Parliament.

Division 5.—General.

77. Special provisions for certain persons.

(1)

A foundling discovered at any time in the country shall, in the absence of proof to the contrary, be deemed to be the child of parents at least one of whom was, or if he had survived would have been, a citizen.

(2)

Where the identity or the citizenship status of a parent of a child born in the country is unknown or doubtful, the parent shall be deemed to have been, in the absence of proof to the contrary, a person who was, or if he had survived would have been, a citizen.

(3)

For the purposes of this Part, a posthumous child of a person has the same status as he would have had if he had been born immediately before the date of the death of his father.

78. Effect of adoption.

(1) Where the citizenship status or entitlement of a person is to be determined by reference to a parent or grand-parent and the person, or a parent of the person, was adopted under a law at any time in force in the country or any other place, the status or entitlement shall be determined by reference to the natural parents or grand-parents, except that the Minister responsible for

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citizenship matters may, in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), allow an adoptive parent or grand-parent to be taken into account where the result would be to recognize citizenship or the entitlement to citizenship.

(2) In Subsection (1), a reference to adoption includes a reference to an adoption by custom.

79. Place of birth of certain persons.

For the purposes of this Part—

(a)

a person born on a registered ship or aircraft shall be deemed to have been born at the place where the ship or aircraft was registered; and

(b)

a person born on an unregistered ship or aircraft belonging to the government of a country shall be deemed to have been born in that country.

80. "Residence".

Subject to any Act of the Parliament, a requirement in this Part of a period of residence in a place is not satisfied by—

(a)

residence in custody under sentence awaiting deportation or removal from the country; or

(b)

residence as an unlawful immigrant.

81. Certificate as to citizenship.

(1)

A person whose status or entitlement in relation to Citizenship of Papua New Guinea is, or may be, in doubt may apply to the Minister responsible for citizenship matters for a certificate under this section.

(2)

If the Minister is satisfied that the applicant is, or is entitled to become, a citizen, he may, in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), grant a certificate stating that the person is or may become a citizen by virtue of a provision specified in the certificate.

(3)

Subject to Section 76 (functions of the Committee), a certificate under this section is (unless it is proved that it was obtained by means of a false representation, fraud or concealment of a material fact) conclusive evidence that on the material date the person concerned was, is or may become a citizen in accordance with the terms of the certificate.

PART V.—THE HEAD OF STATE.

Division 1.—The Head of State.

82. Queen and Head of State.

(1) Her Majesty the Queen—

(a)

having been requested by the people of Papua New Guinea, through their Constituent Assembly, to become the Queen and Head of State of Papua New Guinea; and

(b)

having graciously consented so to become, is the Queen and Head of State of Papua New Guinea.

(2) Subject to and in accordance with this Constitution, the privileges, powers, functions, duties and responsibilities of the Head of State may be had, exercised and performed through a Governor-General appointed in accordance with Division 3 (appointment, etc., of Governor-General) and, except where the contrary intention appears, reference in any law to the Head of State shall be read accordingly.

83. Queen's successors.

The provisions of this Constitution referring to the Queen extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom of Great Britain and Northern Ireland.

84. Precedence.

The Head of State takes precedence in rank over all other persons in Papua New Guinea, and the Governor-General takes precedence in rank immediately after the Head of State.

85. Royal Style and Titles.

The Style and Titles of the Head of State are as determined by Act of the Parliament, and until such an Act is made are— Elizabeth II, Queen of Papua New Guinea and Her other Realms and Territories, Head of the Commonwealth.

Division 2.—Functions, etc., of the Head of State.

86. Functions, etc.

(1)

The privileges, powers, functions, duties and responsibilities of the Head of State are as prescribed by or under Constitutional Laws and Acts of the Parliament.

(2)

Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions,

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duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.

(3)

Any instrument made by or in the name of the Head of State shall recite that it is made with, and in accordance with, the advice of the National Executive Council or of any other body or authority in accordance with whose advice the Head of State is obliged, in the particular case, to act, but failure to comply with this subsection does not affect the validity of an instrument.

(4)

The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable.

Division 3.—Appointment, etc., of Governor-General.

87. Qualifications for appointment.

(1) The Governor-General must be a citizen who—

(a)

is qualified to be a member of the Parliament (except for the reason that he occupies the office of Governor-Generan( � and

(b)

is a mature person of good standing who enjoys the general respect of the community.

(2)

The question, whether for the purposes of Subsection (1) a person is a person to whom Subsection (1)(b) applies, is non-justiciable.

(3)

The Governor-General must not hold any office or position or engage in any calling other than that of, or an office or position associated with, his office as Governor-General, except with the consent of the Head of State, acting with, and in accordance with, the joint advice of the National Executive Council and the Ombudsman Commission.

(4)

A request for the consent of the Head of State under Subsection (3) shall not be made unless agreement on the matter in relation to which the consent is sought has been reached between the National Executive Council and the Ombudsman Commission.

(5)

No person is eligible for appointment as Governor-General more than once unless the Parliament, by two-thirds absolute majority vote, approves appointment for a second term, but no person is eligible for appointment for a third term.

88. Appointment to office.

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(1)

Except in the case of the first Governor-General appointed before Independence Day the Governor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament.

(2)

A decision of the Parliament to nominate a person for appointment as Governor-General shall be made by a simple majority vote, in an exhaustive secret ballot conducted in accordance with an Organic Law.

(3)

Subject to Subsection (5), the Speaker shall, within the period of three months before the completion of the normal term of office of the Governor-General, call a meeting of the Parliament to nominate the next Governor-General.

(4)

Subject to Subsection (5), in the event of a casual vacancy in the office of Governor-General, the Speaker shall, as soon as practicable, call a meeting of the Parliament to nominate the next Governor-General.

(5) If—

(a)

at a time when a meeting of the Parliament should otherwise be called under Subsection (3) or (4) a general election to the Parliament has been ordered; or

(b)

between the time when a meeting of the Parliament should otherwise be called under Subsection (3) and the date of the completion of the normal term of office of the outgoing Governor-General a general election to the Parliament is due to be held in accordance with this Constitution,

the Speaker shall not call a meeting of the Parliament in accordance with Subsection (3) or (4), as the case may be, and a nomination shall be made at the first meeting of the new Parliament as its first item of business after any formal business and the election of a Speaker.

89. Assumption of office.

Notwithstanding Section 90 (Declaration of Loyalty, etc.) for the purposes of this Constitution a person appointed as Governor-General takes office—

(a)

subject to paragraph (b), at the end of his predecessor's term of office; or

(b)

if he is appointed to fill a casual vacancy—on the date of his appointment.

90. Declaration of Loyalty, etc.

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(1)

Before entering upon the duties of his office, a Governor-General shall take the Oath of Allegiance and make the Declaration of Loyalty and the Declaration of Office before the Chief Justice and in the presence of the Parliament, but during a period of declared national emergency they may be taken and made in such manner as is directed by the National Executive Council.

(2)

If the Governor-General has not complied with Subsection (1) before taking office—

(a)

he is suspended from office until such time as he does so; and

(b)

if he does not do so at the first reasonably available opportunity, he may be dismissed from office by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament, and in that event is not eligible for re-appointment for a period of six years.

91. Normal term of office.

Unless he earlier dies, resigns, ceases to be qualified for office in accordance with Section 87 (qualifications for appointment), is dismissed under Section 90 (Declaration of Loyalty, etc.), or 93(1) (dismissal and removal from office), or is removed from office under Section 93(2) (dismissal and removal from office), the Governor-General holds office for a term of six years from the date of his assumption of office in accordance with Section 89 (assumption of office), plus any period that is required, in accordance with Section 88(5) (appointment to office), for the appointment of the next Governor-General.

92. Resignation.

(1)

The Governor-General may resign from office by notice in writing to the Head of State.

(2)

The resignation takes effect on its acceptance by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.

93. Dismissal and removal from office.

(1)

The Governor-General may be dismissed from office by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with either—

(a)

a decision of the National Executive Council; or

(b)

a decision made by an absolute majority of the Parliament.

(2)

The Governor-General may be removed from office by the Head of State, acting with, and in accordance with, the advice of the National Executive

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Council given in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed for the purpose by the National authority responsible for the registration or licensing of medical practitioners have jointly reported to the Speaker that, in their professional opinions, the Governor-General is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.

94. Suspension from office.

(1) The Governor-General may be suspended from office—

(a)

by the National Executive Council, if he refuses or fails to act in accordance with the advice of the National Executive Council or of any other body or authority in accordance with whose advice he is obliged, in the particular case, to act, or acts, or purports to act contrary to, or without, any such advice; or

(b)

in accordance with an Act of the Parliament pending an investigation

for the purposes of Section 93(2) (dismissal and removal from office), and pending any resultant action by the Parliament.

(2)

If the Governor-General is suspended from office by the National Executive Council under Subsection (1)(a), the Prime Minister shall immediately inform the Speaker of the suspension and of the reasons for it.

(3)

If the Governor-General is suspended from office under Subsection (1)(a)—

(a)

the Speaker shall, as soon as practicable, call a meeting of the Parliament at which the matter of the suspension and of the possible dismissal of the Governor-General shall be the first item of business after any formal business and, if necessary, the appointment of a Speaker; and

(b)

the suspension may be lifted at any time by decision of the Parliament; and

(c)

unless before the end of the meeting a recommendation is made in accordance with Section 93(1) (dismissal and removal from office) that the Governor-General be dismissed from office, the suspension ceases at the end of the meeting.

(4)

If the Governor-General is suspended from office under this section, the Prime Minister shall, as soon as practicable, inform the Head of State of the suspension and of the reasons for it.

(5)

A period of suspension under this section shall be taken into account in calculating for the purposes of this Division, the length of the period of service in

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office of the Governor-General.

95. Acting Governor-General.

(1) In this section, a reference to the Speaker or to the Chief Justice shall be read as a reference to the substantive holder of that office.

(2) If—

(a)

there is a vacancy in the office of Governor-General; or

(b)

the Governor-General is suspended from office; or

(c)

the Governor-General is—

(i)

on leave of absence; or

(ii)

absent from the country; or

(iii) out of speedy and effective communication; or

(iv) otherwise unable to perform, or is not readily available to

perform, the duties of his office, the Speaker is, subject to Subsection (3), the Acting Governor-General.

(3) If at any time to which Subsection (2) applies—

(a)

there is a vacancy in the office of Speaker; or

(b)

the Speaker is suspended from office; or

(c)

the Speaker is—

(i)

on leave of absence; or

(ii)

absent from the country; or

(iii) out of speedy and effective communication; or

(iv) otherwise unable to perform, or is not readily available to

perform, the duties of his office, the Chief Justice (if he is a citizen) is the Acting Governor-General.

(4)

During any period when he is the Acting Governor-General, the Speaker or the Chief Justice shall not exercise or perform any of the other powers, functions, duties and responsibilities of the office of Speaker or Chief Justice, as the case may be, except that the Chief Justice may complete any proceedings actually commenced before him unless other suitable arrangements can be made.

(5)

When neither the Speaker nor the Chief Justice is available (or, in the case of the Chief Justice, qualified) to be the Acting Governor-General, the powers, functions, duties and responsibilities of the Governor-General shall be exercised and performed by a Minister appointed by the Head of State on the advice of the National Executive Council for the purpose.

(6)

The question, whether the occasion for the exercise or performance of a power, function, duty or responsibility by an Acting Governor-General or a Minister under this section has arisen or has ceased, is non-justiciable.

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96. Terms and conditions of employment.

(1)

Subject to this Constitution, the terms and conditions of employment of the Governor-General are as determined by or under an Organic Law.

(2)

Except with the consent of the Governor-General the terms and conditions of employment of the Governor-General shall not be changed to his detriment during his term of office, and an Organic Law that so changes them shall recite the terms of the consent.

Division 4.—General.

97. Conveyance of decisions, etc.

Where any act is done, decision is made or advice is given by the Parliament or the National Executive Council under this Part, the Prime Minister shall immediately convey it to the Head of State.

98. Acts, etc., of the Head of State.

Unless the contrary intention appears, any act by the Head of State takes effect when it is formally advised to the Prime Minister or the National Executive Council.

PART VI.—THE NATIONAL GOVERNMENT.

Division 1.—General Principles.

99. Structure of Government.

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

(2) The National Government consists of three principal arms, namely:—

(a)

the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and

(b)

the National Executive; and

(c)

the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.

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

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

Division 2.—The National Parliament.

Subdivision A.—The Legislative Power.

100. Exercise of the legislative power.

(1)

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

(2)

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

(3)

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

Subdivision B.—Composition of the National Parliament.

101. Membership.

(1)

Subject to this section, the Parliament is a single-chamber legislature, consisting of—

(a)

a number of members elected from single-member open electorates; and

(b)

a number of members elected from single-member provincial electorates; and

(c)

not more than three nominated members, appointed and holding office in accordance with Section 102 (nominated members).

(2)

An Organic Law shall make provision for the number of open and provincial electorates.

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

(4)

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

(5)

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

102. Nominated members.

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

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Parliament.

103. Qualifications for and disqualifications from membership.

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

(2)

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

(3)

A person is not qualified to be, or to remain, a member of the Parliament if—

(a)

he is not entitled to vote in elections to the Parliament; or

(b)

he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or

(c)

subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or

(d)

he is otherwise disqualified under this Constitution.

(4)

Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—

(a)

the end of any statutory period allowed for appeals against the conviction or sentence; or

(b)

if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.

(5)

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

(6)

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