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[F.A.Q.] [Help]PNG Constitutional Planning Committee Report 1974 |
Constitutional Planning Committee Report 1974
CHAPTER 1
1. The proposal to establish the Constitutional Planning Committee was approved by the House of Assembly on the motion of the Chief Minister in June 1972. Representative of all parties and groups in the House and of the various parts of the country, the Committee was set the objective of recommending "a constitution for full internal self-government in a united Papua New Guinea with a view to eventual independence". The Terms of Reference (set out in full on an earlier page) included a number of "matters to be considered...for possible incorporation into the Constitution or related documents"; they also empowered the Committee to "make any investigation or recommendation it deems relevant" to its task. Finally, the Committee was to consider, and recommend on, "the mechanism for implementing the Constitution". Following the nomination of Coalition and, subsequently, Opposition party representatives, the Chief Minister announced to the House of Assembly, in September 1972 the names of Committee Members, and also of the permanent staff and consultants who were to be responsible solely to the Committee.
2. The Committee has made two Interim Reports, both tabled in the House of Assembly, the first in September 1973 and the second in November 1973. These outline in some detail the course of the Committee's work including the approach and procedures adopted, problems encountered, and the public consultation programme. The second report also set out and discussed a number of interim recommendations concerning Social Goals of the Nation, Citizenship, Provincial Government and the Legislature. These interim recommendations have been incorporated, often in revised form, in the subsequent chapters of this Report. It is not our intention here to reiterate the other details given in our earlier reports but rather to provide a brief review of the course of the Committee's work.
3. The work of the Committee has gone through five stages. In the early months to the end of 1972, apart from a preliminary survey of the terms of reference, our attention was taken up with establishing our internal procedures, the position we should adopt concerning the transfer of powers from the Australian Government to the Papua New Guinea Government, and the nature of the machinery to be used for progressive consultation with the people. Our meetings during the following period to May 1973 were devoted principally to familiarisation with the terms of reference, exploring the issues involved and examining the range of options that might be available. With the assistance of our staff, and, from time to time visiting specialist consultants, discussion was wide-ranging but no substantive decisions were made. From May to August 1973 we toured the country; by dividing into two groups, we visited almost every sub-district, holding over one hundred public meetings attended by an estimated 60,000 people. Our major deliberations took place at meetings during the period October 1973 to February 1974, and a number of draft chapters based on our decisions were prepared. Finally, in the months from March to June 1974, we had a number of full meetings with the Cabinet and there were also several less formal consultations. Drafting proceeded, accompanied by some revision and refining of our recommendations as the full pattern of the Constitution emerged.
The consultative process
4. A major part of the work of the Committee has been to determine the views of the people of our country on the kind of government they believe will be suitable to their needs. In addition to the programme of public meetings already mentioned, our consultations with the people were greatly extended by the formation of discussion groups through the country. These groups have had their own advisers and reporting procedure, so that their submissions have come direct to the Committee. The submissions, well over 2,000 in all, have been based on the Committee's six discussion papers which were distributed both to the groups and to all interested persons requesting them. Published in Pidgin, Hiri Motu and English, the discussion papers dealt, respectively, with (1) Citizenship; (2) Relations between Central Government and other levels of Government; (3) Legislature and Executive; (4) the Courts and Law Officers; (5) the Public Service and the Ombudsman; and (6) Human Rights and Emergency Powers. Full-page advertisements were also placed in the "Papua New Guinea Post Courier" on these subjects inviting written submissions. Extensive use was also made of radio and posters to publicise the Committee's work.
5. The large attendance at most of our public meetings, and, in particular, the work of the discussion groups has given us great encouragement and support in our task. We have been able to make our recommendations knowing the considered views of a broad cross section of representatives of the people. We wish to express our sincere thanks to all who have been involved, directly or indirectly, in assisting our consultation programme: discussion group members and their chairmen (and chairwomen), advisers, writers and reporters who helped organise their meetings and assist their discussions; the great many people who attended our public meetings and the government officers and others who helped organise them; the district liaison committees; and the various officers of the Government Liaison Branch who did so much to establish the discussion group network and who assisted in the preparation and dissemination of the discussion papers.
6. At various stages of the Committee's work there have been most useful consultations between our staff and officials of the House of Assembly, the Public Service Board and a number of officers in government departments, who have provided information and documents which assisted our deliberations. Similar assistance has been obtained from some members of the academic staff of the University of Papua New Guinea and the Australian National University and also of Macquarie University and the Universities of Sydney and Western Australia. Documents have also been provided on request by the Swedish and United States Embassies and the Canadian High Commission in Canberra, the Australian Trade Commission in Trinidad, and the Constitution Commission of Trinidad and Tobago. Finally, we have had most helpful co-operation from the Libraries of the Department of Law, and, in particular of the House of Assembly which enabled us to assemble an invaluable collection of constitutions and related literature for consultation in the course of our work.
7. We have been fortunate also in having the opportunity to consult a number of overseas specialists who have spent some time with us. In particular we should like to express our appreciation to Professor Ghai who made himself available on three occasions and to Professors Tordoff and Watts who came at short notice and provided us with a most useful report on Provincial Government.
8. The enquiry which has produced this report has taken somewhat longer than was envisaged when the Committee was established, or in May of last year when the plan for a two-stage self-government was agreed upon. In retrospect, however, it is clear that these early forecasts were unrealistic. There are a number of factors that have contributed to the longer period required to complete the task. Most significant has been the need for extensive consultation with the people if the Constitution is to be, in the Chief Minister's phrase, "home-grown", together with the nature of the task itself. We believe most strongly that it is too important to have been rushed. There have been other factors also, including the need to assess the effect on our work of the various transfers of power. And more recently we learned from reactions to our earliest draft proposals that the Committee's recommendations would need to be expressed in detailed form if our intentions were to be fully understood and implemented. A major consequence of the longer duration of our work is that our recommendations are now based on the assumption that the Constitution will be one for an independent Papua New Guinea.
9. The first point we wish to make about the nature of our recommendations is that we have taken the idea of a "home-grown" constitution seriously. In other words, we have assumed that if it had been intended merely to follow some firm precedent, Westminster or otherwise, no planning committee would have been required, least of all one composed of the people's elected representatives. A lawyer or two could have made up a constitution with scissors and paste in much shorter time than we have required. It is not that we have ignored precedents, for there is such a rich variety among the world's constitutions if one looks beyond the more immediately familiar. An examination of our recommendations would send a specialist in many directions if he was looking for origins, and in some cases there are no external precedents at all. What has influenced us above all in seeking formulations and adapting them, has been the desire to meet Papua New Guinean needs and circumstances and, in particular, to base our recommendations on the kind of principles we discuss below.
10. One of the problems that we have encountered in seeking to build a constitutional framework uniquely suited to Papua New Guinean needs, is that this inevitably has meant changes from a number of institutions and procedures we have inherited from our recent colonial past. And this in turn, means some disturbance to entrenched interests. We mentioned earlier that there have been some useful consultations with a number of government officers; but, on another level, so to speak, we have met with considerable suspicion, spite and prejudice from some bureaucrats who appear to have seen in the Committee, and the independent manner in which it has sought to operate, a challenge to their own power and authority. We welcome constructive criticism of our proposals - they have already been much modified as a result of various comments we have received. But acceptable criticism must not be based on the arrogant assumption that Papua New Guinean political representatives are unable to think for themselves; or on the belief that radical departures from the institutions and procedures inherited from the colonial power cannot possibly work. There is a danger too that some of our politicians whose power is reinforced by existing institutions will be tempted to defend their positions by adopting similar attitudes.
11. This leads us back to our original concern about the nature of the transfers of power that have taken place over the past two years. The objective of achieving a smooth and relatively rapid transfer of power may, in one sense, seem most commendable. In the long term, however, it has considerable dangers if, as appears to have been the case, the emphasis is on quantitative rather than qualitative change. With quantitative change all that matters is the actual transfer of power, not how it is to be distributed and exercised. Yet this strikes at the very heart of what we have been entrusted to do. In planning a constitution we are concerned above all else with these very questions - who shall have what powers and in what manner shall they be exercised.
12. We see the planning of our own constitution as a vital aspect of the process of self-determination. It is not just a matter of our people determining that they should govern themselves. We have the opportunity of determining how we shall govern ourselves. To answer this question we must know what philosophy of life we wish to live by, what social and economic goals we wish to achieve, what kind of society we wish Papua New Guinea to be. Our recommendations are accordingly based on a number of fundamental principles or themes. Some of the more significant of these are indicated below, together with examples of how we have sought to apply them. Their various ramifications are explored in detail in the chapters that follow.
13. At this stage of our political history we must all be concerned with the vital but difficult task of building a nation. True nation-building, however, especially in a land with peoples as diverse as ours, cannot be achieved by the central government imposing its will through bureaucratic processes. That would be a mere continuation of the old colonial system, an exchange of masters, in which the gap between "they", the government, and "we", the "people", remained as large and unbridgeable as ever. True nation-building can come only through the active and meaningful involvement of the people in their own development.
14. It is development of the people rather than development of the country that we have sought to emphasise. Thus, for example the people gain little if the benefits derived from development of our natural resources go principally to foreigners. In the recent expression of policy there has been some movement towards balanced development with an emphasis on rural areas where most of our people live, and a less permissive attitude towards foreign investment than in the past. Such matters are given prominence in our recommendations on National Goals and Directive Principles, together with personal liberation and self-fulfilment, participation and equality, national sovereignty and self-reliance.
15. Our citizenship proposals, the nature and purpose of which have been misunderstood by some and, from a variety of motives maligned by others, are designed above all to give priority to the development of our own people. They are intended to prevent the legitimation of gross inequalities between our own people and those who have enjoyed the benefits of foreign affiliations; and also, in the long run, to ensure that outsiders who genuinely wish to become full citizens of our country are accepted as such when they eventually take the step.
16. To be actively and meaningfully involved in their own development, our people must have the right to participate in the political process of decision-making at all levels of society. Traditionally they have always had this right in their villages. Our recommendations are intended to ensure that, through their elected representatives, they shall have this right at levels beyond. A basic corollary of this is the need for political, as well as administrative, decentralization. The activities of various local and sub-national movements have lately been the focus of much attention. They are, we believe, primarily a reflection of the desire for identity and self-respect which is present, in varying degrees of intensity, throughout the country. We must, therefore, plan our Constitution so as to allow for the expression of this desire within the national framework. A national constitution and a national government will be the more acceptable if they respect rather than repress a search for identity which must begin in the locality and the district before it eventually encompasses the nation.
17. Important changes are therefore required. Two visiting consultants, internationally prominent in their field, have commented to us that in all their experience of Asia, Africa and the Caribbean, they have not come across a system of government so highly centralised - and dominated by its bureaucracy as that which exists here in Papua New Guinea. To rectify that situation they described we have proposed a system of provincial government which will enable the people of the districts to participate in planning and implementing their own development within the framework of national policy to which their representatives have also contributed.
18. True participation in our societies requires consultation and consensus. In addition to political decentralization, this must also mean that our national institutions of government are so designed that participation in decision-making is spread among our elected representatives. We have formulated our proposals with this objective in mind but have also sought flexibility. Thus, although our proposals will accommodate a system in which there is a formalised division between "Government" and "Opposition", they are not tied to such a system and the rights of participants do not depend upon either its existence or continuation.
19. More particularly, we have sought to build into national politics a genuine partnership between the executive and the legislature. Full opportunity has been accorded to the executive to provide the leadership that is expected of it; and our proposals for the management of the Public Services are designed to assist the executive to achieve the efficient and effective implementation of its policies. But we have been concerned to ensure that the decline of Parliament frequently criticised in other countries, not least in the new states, should not occur here. Our recommendations for a system of permanent parliamentary committees are intended to bring about continuing participation in government by the non-ministerial elected representatives. And the procedures we have proposed for the appointment of constitutional office-holders also reflect the emphasis we place on consultation and consensus.
20. Papua New Guinea must be a free society. Our recommendations include a new Charter of Human Rights. This revises and extends the present Ordinance which it is intended to replace. We have tried to achieve, both in this Chapter and throughout our proposals a careful balance between the rights of individuals and the interests of the community. Apart from basic political and economic rights we have paid particular attention for example to the necessity to ensure effective and equal access to the services provided by the government including those institutions associated with the judicial process; and we have provided for an Ombudsman Commission to deal with unfair administrative practices.
21. We have proposed that the maintenance of peace and order should be the exclusive responsibility of civil authorities in all but the most extreme cases warranting proclamation of a State of Emergency, and while providing for the government's use of emergency powers in exceptional circumstances we have stressed the avoidance of preventive detention or imprisonment without trial which we find inimicable to the kind of free society in which we believe Papua New Guineans wish to live.
22. The future of our country will depend not only on the system of government established and the various institutions designed to further and protect the well-being of our people, but also on the quality of leadership shown by those who are placed in positions of power and authority, by election or otherwise. We have included in our proposals a Code which such people will be expected to observe, and which will be enforceable by the Ombudsman Commission and an appropriate judicial tribunal. It is hoped thereby to avoid the kind of corruption, too often seen abroad, that stems from the failure to put the public and national interest before personal advantage.
23. It is not enough however that the people should be free from the incidence of corruption among those in power and authority. They should seek in their leaders a commitment to the national goals set out in the Constitution; and they should have the right to expect that anybody who aspires to public office should devote his energies and talents to the furtherance of these aims in the interests of the people.
24. We have worked together as members of the Constitutional Planning Committee for 21 months. During this time we have managed to overcome earlier difficulties so that progressively we have worked as a team and our proposals have been conceived without reference to party divisions. The planning of a "home-grown" constitution has been a heavy responsibility, but it has also been a rare and exciting experience. We are honoured to have been entrusted with the task.
25. We know that at times of momentous change there can be no assurance of constitutional permanence and, with some safeguards designed to ensure due publicity and consideration of proposed changes, we have provided for constitutional amendments to be enacted by the National Parliament. However, we believe the proposals that follow reflect the ideas and opinions of many of our countrymen and women, as well as our own assessment of the shape and direction that our institutions should take and what is relevant and meaningful to our evolving nation. We submit the results of our work with humility and anticipation in the hope that they will fulfil the aspirations of our people at this important stage of our history.
26. In our report we have naturally been primarily concerned to make recommendations for provisions to be included in Papua New Guinea's Constitution for Independence. However, as required under our terms of reference, we have also put forward a number of proposals for incorporation in Standing Orders of parliament or in ordinary legislation associated with the Constitution. Certain other recommendations, such as our call for the introduction of a superannuation scheme for certain leaders, and for the erection of a new parliament building, have been made on the basis that the Committee has "deemed (them) relevant" to its task.
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