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[F.A.Q.] [Help]PNG Constitutional Planning Committee Report 1974 |
Constitutional Planning Committee Report 1974
CHAPTER 14
1. There are a number of recommendations made by the Committee which have general application to various parts of our Report. We have brought them together in this Chapter so that they can be viewed as a whole.
2. Our Report recommends the establishment of a number of new institutions in Papua New Guinea; and the reconstitution of some existing ones. We have paid close and careful attention to their composition, and to the qualifications of office-holders within them. In some cases, we have specifically recommended that the holder of one office should also be a member of another body, so that certain interests and skills should be represented on that second body. However, we are in general opposed to the concentration of power in too few hands. Thus, where we have not specifically provided for the holder of a certain office also to hold another office, or to be a member of a particular body, we do not believe that he should be allowed to do so. Both power and responsibility should be distributed among our leaders.
3. Earlier in this Report, we have made recommendations designed to protect the rights, and to enhance the status, of women. Our use of the masculine gender in this and other chapters is therefore only a matter of convenience in drafting. All references to the male include the female: "he", "his" and "him" should be interchangeable in our recommendations with "she", "hers" and "her", not only in principle, but, we believe, in fact.
A. CONSTITUTIONAL OFFICE-HOLDERS
4. The Committee has recommended earlier in this Report the establishment of a number of offices which we believe should be free from outside direction and control. They comprise:
§ the Chief Justice and other judges of the National Court of justice
§ the Chief Ombudsman and the other Ombudsmen
§ the Public Prosecutor
§ the Public Solicitor
§ the Electoral Commissioner
§ the Clerk of the National Parliament
§ the members of the Public Services Commission
§ the Auditor-General
§ the Chief Magistrate
It may be that the National Parliament will wish to treat some other holders of high office in the same manner as these office-holders - whom we call "constitutional office-holders" - and we have provided accordingly.
5. The persons appointed to all of these offices must be of undoubted integrity if they are to fulfil the trust that we believe should be placed in them. They, in turn, should be protected from external pressure, although not in such a way that they become remote from the society in which they work. A balance must be struck between the need for them to be able to perform their duties fearlessly and without hindrance, and the need to ensure that they carry out their work honestly and with due regard for the people of Papua New Guinea.
6. We believe that our recommendation strike such a balance.
7. No person should be allowed to hold high public office indefinitely. All persons who exercise power on behalf of the people should, we believe, have their work periodically evaluated by the body that originally chose them.
8. We need to place considerable trust in the persons appointed to the constitutional offices listed above. The Committee has, therefore, given very careful consideration to the manner in which they should be appointed, and their qualifications for office. We appreciate that it would not be proper to hold them accountable for particular decisions and actions. But, we do believe that it should be possible, at specified intervals, to consider their continued suitability for office in a rapidly changing society.
9. We propose that constitutional office-holders (other than judges) should be appointed for terms of six years. At the expiration of each term, holders of such offices should be eligible for reappointment in the same manner as they were first appointed.
10. However, in order to facilitate localisation, we believe that no person who is not a citizen should be appointed to a constitutional office for a term greater than three years. And, for the first ten years after the Constitution comes into force, while our country is still short of Papua New Guineans with appropriate training and experience, we recommend that citizens be appointed for an initial term of three years, after which they may be reappointed for terms of six years.
11. We have outlined above our belief that no person should hold a constitutional office indefinitely. But, we are also concerned to ensure that constitutional office-holders are able to perform their functions independently of outside pressures.
12. We propose that all constitutional office-holders who are citizens of Papua New Guinea should have their future guaranteed. Those office-holders who are recruited from a position in public employment for an initial term of three years, and who are not then reappointed, should be offered another position in the public employment at a salary and on conditions similar to those they enjoyed prior to their recruitment. A constitutional office-holder who is not reappointed at the expiration of a six year term should be guaranteed a position in public constitutional office. In this way, we believe that the constitutional offices can be filled by people sensitive to the changing needs of our country, yet free from personal and professional pressure.
13. It is important, we believe, that all constitutional office-holders should be publicly committed to uphold the Constitution, including the values embodied in the National Goals and Directive Principles in Chapter 2, and the Leadership Code in Chapter 3. They should, we recommend, take an oath or make an affirmation (according to individual conscience) in the form set out in Schedule 3 of this Report before they take up the duties of their offices. It should be impressed upon them that these pledges are no mere formalities: they have been carefully composed by and for those with a genuine personal commitment to the objectives they specify.
14. A constitutional office-holder who feels unable or unwilling to complete the full term for which he was appointed should be permitted to tender his resignation at any time. He should, however, be required to give sufficient notice of his intention to resign to enable the body that appointed him to proceed to find a person to replace him as soon as possible after his resignation takes effect. We recommend that a constitutional office-holder who intends to resign should give three months notice before his resignation comes into effect.
15. There may, however, be occasions when a constitutional office-holder gives notice of his intention to resign and then reconsiders his position. Perhaps the body that appointed him may persuade him to remain in office until the end of his term. We believe that these possibilities make it desirable for there to be a short "breathing-space" of three weeks after receipt of a constitutional office-holder's resignation by the appointing body before the three months notice begins. During that period, a constitutional office-holder should be able to withdraw his notice of intention to resign, provided that the body that appointed him has not already accepted his notice.
16. Constitutional office-holders who are citizens should, we believe, be required to retire at the age of fifty-five, unless granted an extension till they reach sixty.
17. The retiring age of fifty-five has received widespread approval in Papua New Guinea as being appropriate for those of our citizens employed in the Public Services. However, the government has not accepted this to date. In the case of constitutional office-holders, we believe that there are additional considerations which make it very desirable that our recommendations in this regard be accepted.
18. The lift expectancy of Papua New Guineans is not as high as that of people in many other countries. The changes that should take place in a society fully committed to the National Goals and Directive Principles set out in Chapter 2 will require freshness of mind. We are, therefore, concerned to ensure that a small minority of high office-holders should not remain in office for too long.
19. The people in the villages have always respected their elders. We continue to do so. But our leaders must be responsive to the society in which they live, and sensitive to changing circumstances. Our country cannot afford a tired leadership or one committed to outmoded ideas, particularly not in offices subject to no outside direction or control.
20. An early retirement age should bring our country's constitutional office-holders closer in age and spirit to the majority of our people. The retirement of these office-holders at the age of fifty-five or sixty should ensure that new life is periodically brought to their offices. It should enable our country to avoid the emergence of unnecessary tensions between the young and those of their elders who are resistant to change. We therefore believe that the retirement age for constitutional office-holders should be the same as that for Departmental Heads. The financial costs consequent upon the implementation of this proposal would be negligible when compared with the social and political costs of later retirement ages, which would be less appropriate to Papua New Guinean conditions.
21. We are aware that many Papua New Guineans are uncertain as to their exact date of birth. Accurate, written records of births are not commonly kept in our villages. The Committee is therefore concerned that disagreements over the precise ages of individual constitutional office-holders should not disrupt the performance of their duties nor cast doubt upon the legality of their decisions and actions. We recommend that nothing done by a constitutional office-holder should be regarded as invalid simply because that office-holder has reached retirement age. Constitutional office-holders should be required to retire, as appropriate, at the age of fifty-five or sixty, but should they for some reason remain in office beyond retirement age, their actions should not be regarded as invalid by virtue only of that fact.
22. It is desirable that every constitutional office-holder should be fully engaged in his duties from the time when his appointment takes effect until the expiration of his term. His work should not be allowed to "tail off" too sharply towards the end of his term, nor should work begun before then be left unfinished. We therefore recommend that provision should be made for the body that appointed him to give permission to a constitutional office-holder to finish any work in which he is actively engaged at the end of his term. This permission should, we believe, be strictly limited - to work actually in progress that is likely to be completed within a reasonably short period of time.
23. We have recommended that the constitutional office-holders listed above should be independent of outside direction and control. To ensure their independence, they should not be directly beholden to, or dependent upon, either the executive or the legislature for their salary and conditions.
24. It is, we believe, desirable that the salary and conditions of all people in public employment in Papua New Guinea, including constitutional office-holders, should be set by the government. Those benefits should be appropriate to the circumstances of Papua New Guinea, and in accordance with the National Goals and Directive Principles. In time of trouble, the government should have the power to reduce all salaries and conditions according to law. Or there may be times when the National Parliament believes that salaries and conditions generally should be held down or even reduced as a matter of principle. But the salary, conditions and other benefits attached to each constitutional office should be reduced during a particular incumbent's tenure of office only if the reduction he suffers is common to all constitutional office-holders.
25. In principle, we believe that constitutional office-holders should be free, both personally and professionally, from political pressure. We therefore recommend that the salary, allowances and other benefits attached to their offices be paid directly from a consolidated fund. In that way, the professional activities of constitutional office-holders are less-likely to be influenced by pressures brought to bear upon their personal lives.
26. Constitutional office-holders should, we believe, be subject to the Leadership Code and the normal provisions of the law. However, the responsibilities and trust placed in them are so great that it is necessary to place additional restrictions upon their personal and professional conduct.
27. Constitutional office-holders should not only be free from political pressure - they should also not become involved in party politics. They must be independent, and must appear to be so. The freedom that the Constitution guarantees them involves a reciprocal obligation of political neutrality.
28. It goes without saying that a constitutional office-holder should not be a person under sentence by a court, or one unable to manage his own personal affairs in such a way as to avoid bankruptcy.
29. We have recommended above that constitutional office-holders should be paid direct from a Consolidated Fund. We believe that they should be paid sufficient to live on the income attached to their respective offices, within the framework of the National Goals and Directive Principles. We therefore recommend that no constitutional office-holder should be involved in the management of a business established for profit, nor should he receive benefits additional to those attached to his office except within the narrow limits laid down by the Leadership Code. They should be properly provided for by the Government and should not be allowed to compromise their independence - or to live beyond the style provided for - through involvement in other economic activities.
30. In the case of the Auditor-General, whose job it is to report to Parliament on the Executive's administration of public funds, additional restrictions are necessary - so that he does not become personally involved with the people who handle government funds.
31. In recommending that the holders of the constitutional offices listed above should be independent in the performance of their functions, we have recognised that they should not be easily dismissed. We have therefore specified the circumstances in which a constitutional office-holder can be removed from office, and how allegations against him are to be dealt with.
32. Chronic infirmity of mind or body should be grounds for dismissal. However, that infirmity needs to be carefully evaluated, as do allegations of misconduct, breach of the Leadership Code and gross negligence (which are likely to compromise the integrity and effectiveness of an office). We therefore recommend that a special tribunal of three judges should be appointed to investigate and report on allegations which the body that first appointed a constitutional office-holder feels are serious enough to warrant such an investigation. The appointing body should be able to suspend a constitutional office-holder from his office while an investigation is in progress. The recommendations of that tribunal as to whether or not a particular constitutional office-holder should be removed from office should be carried out by the appointing body.
33. There may be times when it is difficult to appoint someone promptly to fill a vacant constitutional office, or when a constitutional office-holder is for some reason - including illness or suspension from office - unable to perform his duties. At such times, the body that has the power to make appointments to a particular office should be able to make acting appointments of appropriately qualified people, for up to one year at a time - until a normal appointment can be made, or until the holder of the office concerned is able to take up his duties again. The appointing body should also have the power to revoke an acting appointment to a constitutional office at any time.
34. At a number of points in this Report, we have made detailed recommendations as to the manner in which particular appointments to high public office should be made. We have thought deeply on the question of who should be involved in the appointment of each constitutional office-holder, and sought to strike a reasonable balance between the various interests involved. As a result, the consultations which we recommend should take place before particular appointments are made are intended to be more than formalities. They should be careful, deliberate, and thorough. They should be planned in advance so as to allow the various bodies involved in them to prepare their views; participants in them should be presented with genuine alternatives; they should be given adequate time and information to make rational choices; and the results of their consideration of the available alternatives should be properly considered before appointments are made. The consultations we recommend are intended to be a great deal more in practice than the ritual consultations have become in other systems of government. They should be occasions for genuine exchanges of views.
35. It is important that the people of Papua New Guinea be kept informed, through their representatives, of the work that the constitutional office-holders are doing. These office-holders should, in turn, be able to report their achievements and problems to the people. We therefore recommend that reports should be made at least once a year to the National Parliament on the performance of the functions and the administration of the offices of all bodies established in the Constitution.
36. These reports should be sent direct to the Speaker, who should table them in the National Parliament, not later than the first meeting of the Parliament after he has received them.
37. The independence of constitutional office-holders must be real. It involves both special privileges and obligations. We believe that our proposals provide adequate safeguards for the independence of the constitutional office-holders listed, while ensuring that they fulfil their obligations to the society on whose behalf certain most important responsibilities will have been entrusted to them.
38. It is, we believe, essential that the institutions established in our home grown Constitution should be, and be seen to be, under the control of citizens of this country. We therefore recommend that, with the exception of only two constitutional bodies, at least the majority of the members of all collective bodies established in the Constitution should be citizens.
39. All members of the National Parliament must be citizens if sovereignty is really to be ours. We also believe that for the first ten years after the Constitution comes into force all of the members of the Public Services Commission should be indigenous citizens. We appreciate, however, that our country is likely to be short of certain skilled and experienced personnel for a number of years to come. During these years we shall need the assistance of foreign citizens who have the necessary skills. But, localization of decision-making is vital if the country is really to be run as our people wish, and localization of personnel must therefore remain an urgent objective.
40. We therefore recommend that the majority of members of collective bodies established in the Constitution should, from the inception of these bodies, be citizens. We exempt only the courts and the Fiscal Commission recommended in Chapter 10, "Provincial Government". Our country is short of trained Papua New Guinean lawyers generally, and particularly of lawyers qualified to sit on the National Court of Justice. It may also be short of people who are qualified to serve as members of the Fiscal Commission. But, even in these two cases, rapid localization remains our objective.
41. This recommendation should be regarded as a transitional provision. We do not believe that the holders of high public office in ten years time should be other than citizens. By then, this recommendation should be an anachronism. However, we have not made it impossible for non-citizens to be appointed to high constitutional office even then.
B. NATIONAL INTERPRETATION SERVICE
42. Throughout this Report, we have been concerned to ensure that the government of our country should be responsive to the people. Responsiveness requires effective two-way communication.
43. In a country as diverse as ours, no person can become proficient in more than a small percentage of the languages spoken by our people. But, every citizen should be able to gain effective access to all of the institutions of government that affect him. In part, this access is regulated by language.
44. We believe that there is a serious need for properly trained interpreters in our country to facilitate communication between the people and their government (including the courts and other bodies established in the Constitution). Interpreting should be officially recognized as a highly skilled occupation. People with an aptitude for language should be adequately trained and remunerated as interpreters. They should be encouraged to seek a career in interpreting.
45. We recommend that a National Interpretation Service be established to facilitate the attainment of these objectives. The establishment of such a service would provide governmental recognition of the reality of our country's diversity at the local level. It would help to improve the means of communication between the people throughout the country, whose interests the Constitution is intended to promote, and the institutions of government established by and under the Constitution.
1. Except as otherwise provided in the Constitution, no person shall hold at the same time more than one office established in the Constitution.
2. Except as otherwise provided, all references to the male sex shall include the female sex.
A. CONSTITUTIONAL OFFICE-HOLDERS
Definition of "Constitutional Office-Holder"
3. (1) Except as otherwise provided in the Constitution, recommendations 4 to 19 inclusive shall apply to the following holders of public offices established in the Constitution:
§ the Auditor-General
§ the Chief Justice and other judges of the National Court of Justice
§ the Chief Magistrate
§ the Chief Ombudsman and other Ombudsmen
§ the Clerk of the National Parliament
§ the Electoral Commissioner
§ the Public Prosecutor
§ members of the Public Services Commission
§ the Public Solicitor
§ and holders of such other offices as are provided for by law.
(2) For the purposes of Part A of this chapter, the holders of all of the offices specified in Recommendation 3 (1) shall be referred to as "constitutional office-holders".
4. (1) Subject to the Constitution, a constitutional office-holder shall be appointed, and may be successively re-appointed at the expiration of each term, for a term of six years, except that -
(a) during the first ten years after the Constitution comes into force, a citizen of Papua New Guinea shall be appointed to a constitutional office for an initial term of three years, and may then be re-appointed for a term of six years; and
(b) a person who is not a citizen of Papua New Guinea shall be appointed, and may be re-appointed at the expiration of his term, for a term not exceeding three years.
(2) Re-appointments shall be made in the same manner as appointments.
Note: (i) The full term of office of citizen judges, as provided in Chapter 8, "The Administration of Justice" is ten years rather than six years.
(ii) Provision has been made for the respective terms of the initial appointees to the Public Services Commission and the Ombudsman Commission to vary from the general rule so that the retirement of individual members of these Commissions (and their re-appointment or replacement) can be staggered over several years.
5. (1) Any citizen who, prior to his appointment as a constitutional office-holder, has held a position in public employment shall, if not re-appointed after holding office for an initial term of three years, be offered a position in public employment which is not inferior to that which he held prior to his appointment to a constitutional office.
(2) Any citizen who is not re-appointed after holding office as a constitutional office-holder for a six year term, shall be offered an appointment to another office in public employment at a salary and on conditions not inferior to those which he was receiving at the conclusion of his term of office as a constitutional office-holder.
6. A person who has been appointed to a constitutional office shall make an oath or affirmation in the form set out in Schedule 3 of the Constitution before performing the functions of the office to which he has been appointed.
7. A constitutional office-holder may at any time give three months notice to the body that appointed him that he intends to resign from his office, and that notice shall be deemed to be dated twenty-one days after the notice of resignation has been received by that body
provided that
(a) the appointing body may accept the notice of resignation within twenty-one days of receiving it; and
(b) the constitutional office-holder may, unless his notice of resignation has been accepted by the appointing body, withdraw his notice of resignation within twenty-one days of its receipt by the appointing body.
8. (1) Whether or not his term of office has expired, a constitutional office-holder who is a citizen shall retire at the age of fifty-five years, unless he is granted an extension of his term for a maximum of five years, in accordance with the procedures laid down for his appointment.
(2) Nothing done by a constitutional office-holder shall be invalid by reason only that he has attained the age at which he is required to retire from his office.
9. Notwithstanding that he has reached the age at which he is required under Recommendation 8 (1) to retire, or that his term of office (specified in Recommendation 4) has expired, a constitutional office-holder may, subject to the Constitution, be given permission by the body that appointed him to his office, to complete work in which he is actively engaged at the expiration of his term.
Note: Provision has been made in Chapter 8, "The Administration of Justice" for -
§ the Prime Minister to permit a Chief Justice who has reached retirement age, and
§ the Judicial and Legal Service Commission acting in accordance with the advice of the Chief Justice to give permission to any other judge who has reached retirement age,
to complete his duties in relation to proceedings which were commended before him before he reached that age.
10. (1) The salary, allowances and any other financial benefits attached to a constitutional office shall be a direct charge on a Consolidated Fund established in accordance with the recommendations in Chapter 11, "Financial Control".
(2) The salary, allowances and other benefits or conditions attached to a constitutional office shall not be reduced during an individual incumbent's tenure of office except as part of a general reduction throughout all constitutional offices.
11. A person shall not be qualified for appointment as, or to continue to be, a constitutional office-holder if -
(a) he is a member of the National Parliament, of a Provincial Assembly, of a Local Government Council, or is an office-holder in any other local body exercising governmental functions;
(b) he is an office-holder in a registered political party;
(c) he is an undischarged bankrupt; or
(d) he is under sentence of death or imprisonment imposed on him by any court.
12. During his term of office, a constitutional office-holder shall not -
(a) be actively engaged in politics;
(b) be engaged either directly or indirectly in the management or control of a body of persons carrying on business for purposes of profit;
(c) hold any other office or engage, either directly or indirectly in any other employment, business, trade or profession;
(d) buy, rent or hire, accept as a gift, use or hold in any other manner any government property, (whether immoveable or moveable) or any other benefit in addition to the terms and conditions of his employment according to law, except that, subject to the Leadership Code, he may purchase or rent land in the same way as any citizen; and
(e) in the case of the Auditor-General, participate, either directly or indirectly, in any enterprise, institution, fund or other body holding a concession from, or assisted by, the government, or in the management of which the government has a share, or which has been made subject to the control of the government or the inspections of the Auditor-General, and shall not benefit, either directly or indirectly from its income.
Note: (i) Recommendation 12 (c) shall not preclude a constitutional office-holder from holding office in a professional body in respect of which his qualifications are relevant.
(ii) Recommendation 12 (e) shall not preclude the Auditor-General from obtaining normal bank loans from a government bank.
13. Subject to the recommendations in Chapter 8, "The Administration of Justice" a constitutional office-holder may be removed from office by the person or body that appointed him, but only on the grounds of inability to perform the functions of his office (whether arising from infirmity of body or mind), or for misbehaviour (including gross negligence or breach of the Leadership Code or of Recommendation 11 or 12 above). Such an office-holder may be removed only in accordance with the recommendation of a tribunal of three judges of the National Court of Justice, which shall deliberate upon the allegations against him.
14. Except as otherwise provided in the Constitution, if the body that appointed a constitutional office-holder is satisfied that the question of removing him from office should be investigated, it shall -
(1) request the Chief Justice to appoint a tribunal of three judges of the National Court of Justice, and the Chief Justice shall act in accordance with that request and appoint one of the members of the tribunal to be chairman;
(2) the tribunal shall inquire into the matter, report its findings to the body that appointed the constitutional office-holder, and recommend to that body whether or not he ought to be removed on the grounds specified in Recommendation 2 above (which includes breaches of Recommendations 11 and 12 above), and the body that appointed the constitutional office-holder shall act in accordance with the recommendations of the tribunal.
15. Except as otherwise provided in the Constitution, where the question of removing a constitutional office-holder for misbehaviour or inability to perform the functions of his office has been referred to the tribunal provided for in Recommendation 13, the body that appointed the constitutional office-holder may suspend him from performing the functions of his office. Any such suspension may at any time be revoked by that body, and shall in any case cease to have effect if the tribunal appointed under Recommendation 13 recommends that the constitutional office-holder should not be removed.
Note: (i) In accordance with our recommendations in Chapter 10, "The Administration of Justice", the tribunal to investigate the question of removing judges other than the Chief Justice, the Public Prosecutor and the Public Solicitor, would be appointed by the Judicial and Legal Service Commission itself, and the Commission would also appoint the tribunal's chairman.
(ii) In the case of the Chief Justice, the tribunal (including its chairman) would be appointed by the Prime Minister after consulting the Minister responsible for justice and subsequently consulting, jointly, the National Executive Council and the Permanent Parliamentary Committee which has specific responsibility in relation to justice.
Acting Appointments
16. If a constitutional office is vacant or a constitutional office-holder is for any reason unable to perform the functions of his office, a person qualified for appointment to that office may be appointed to act in it by the body responsible for making appointments to that office, until the office is filled, or until the constitutional office-holder has resumed the functions of that office, or until the appointment of the person acting in that office is revoked by the appointing body,
provided that an acting appointment under this provision may not continue for a period exceeding twelve months.
17. Where consultation is required prior to the making of an appointment -
(a) that consultation shall be initiated in writing by the person or body responsible for making the appointment;
(b) a list of alternative possible nominees shall be proposed, with detailed information concerning the qualifications and experience of each one;
(c) adequate time shall be allowed for careful consideration of the list and for delivery of a reply by a specified date after that list has been delivered;
(d) there shall be prior agreement in writing between the parties to the consultation as to the time and place of any oral discussion that may form part of that consultation; and
the body consulted shall be informed by letter delivered to it prior to the appointment being made of the decision as to the name of the person being appointed to a particular office.
18. Subject to the Constitution, at least once a year, a report on the performance of the functions of each constitutional body or office and on its administration shall be forwarded to the Speaker, who shall table each report in the National Parliament not later than the first meeting of the Parliament after he has received the report.
19. Except where it is provided that all of the members of a collective body shall be citizens, the majority of members of all collective bodies established in the Constitution, other than the superior courts and the Fiscal Commission recommended in Chapter 10, "Provincial Government", shall be citizens of Papua New Guinea.
Note: This provision shall be treated as a transitional provision which lasts until the expiration of a period of ten years after the day on which the Constitution comes into force.
B. NATIONAL INTERPRETATION SERVICE
20. A National Interpretation Service should be established, as a matter of urgency, to provide translation services for the National Parliament, government departments, statutory authorities, the courts and constitutional office-holders, and to assist the general public in its dealings with these bodies.
21. The National Interpretation Service should train interpreters to high professional standards, and the salary and conditions of its members should be such as to attract them to seek a career within that Service.
* * *
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