Eleanor Finch
The Constitution of Papua New Guinea is a roadmap to equality, development, and the realization of the full potential of every Papua New Guinean. It was drafted during the period of self-government from 1973 to 1975, and it specifically refers to the Head of State instead of the King or the Crown. The Constitution is based on the principle of the separation of powers, with the judiciary independent from executive interference. The customary law portion of the Constitution derives from the regional customs of the country, while the Underlying Law Act 2000 identifies English common law as another source. The National Goals and Directive Principles (NGDPs) in the Preamble are prominent aspirational statements that define the philosophy of life and social and economic goals for Papua New Guinea.
| Characteristics | Values |
|---|---|
| Sources | Regional customs, English common law, and the English Bill of Rights |
| Facilitators | The Constitutional Planning Committee (CPC) |
| National justices, including Chief Justice Buri Kidu and Mr Justice Mari Kapi | |
| Expatriate justices |
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What You'll Learn
The Constitution's vision for Papua New Guinea
The Constitution of Papua New Guinea is a roadmap to equality, development, and the realisation of the full potential of every Papua New Guinean. It is a vision that drove the call for independence and remains a guiding principle for the country. The Constitution's vision for Papua New Guinea is one of a sustainable future, where the rights and responsibilities of citizens are respected and upheld.
The National Goals and Directive Principles (NGDPs) in the Preamble of the Constitution are aspirational statements that define the country's vision. These include integral human development, equality and participation, national sovereignty and self-reliance, the wise use of natural resources and the environment, and the preservation of Papua New Guinean ways. The NGDPs are intended to be a living, breathing part of the country's vision, informing nation-building and providing a philosophy of life for its citizens.
The Constitution also recognises the importance of customary law, which is derived from the regional customs of the country, and seeks to incorporate these traditions into the modern legal system. This customary law is given precedence over common law in the legal system, with the Underlying Law Act 2000 mandating greater attention to custom and its development as an important component of the underlying law.
The judicial system in Papua New Guinea consists of village magistrates' courts, district courts, the National Court, and the Supreme Court, which is the final court of appeal. The Supreme Court also has the jurisdiction to give advisory opinions on the constitutionality of legislation.
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The Constitution's drafting period
The Constitution of Papua New Guinea was drafted during the period of self-government from 1973 to 1975, when the country was preparing for full sovereignty. During this time, Papua New Guinea contemplated having its own indigenous head of state, referring to the "Head of State" in the Constitution rather than the King or the Crown. However, PNG ultimately chose to retain the monarchy, and the governor-general functions as a de facto non-executive president.
The Constitution is based on the principle of the separation of powers, with an independent judiciary free from executive interference, as established by the English Bill of Rights in 1689. The judicial system consists of village magistrates' courts, district courts, the National Court, and the Supreme Court, which is the final court of appeal.
The "customary law" portion of the Constitution was intended to derive from the regional customs of the country, similar to the common law of England before 1189. The Underlying Law Act 2000 mandates greater attention to custom and the development of customary law as an important component of the underlying law. The Constitution also includes the National Goals and Directive Principles (NGDPs), which are prominent aspirational statements outlining the country's vision for integral human development, equality, participation, national sovereignty, and the wise use of natural resources.
The drafting period was a time of intense discourse and visioning for the newly independent nation, with the Constitution serving as a roadmap for equality, development, and the realisation of the full potential of all Papua New Guineans. It reflects the country's diverse population, embracing dozens of ethnic groups and hundreds of indigenous spoken languages. The Constitution's vision aligns with the country's aspirations for the right to health, education, employment, and the preservation of traditions while ensuring equal opportunities and respect for women.
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The Constitution's sources of law
The Constitution of Papua New Guinea is a roadmap to equality, development, and the realisation of the full potential of every Papua New Guinean. It was drafted during the period of self-government from 1973 to 1975, when the country was preparing for full sovereignty. The Constitution specifically refers to the "Head of State" instead of the King or the Crown, indicating a desire for an indigenous head of state. However, PNG ultimately chose to retain the monarchy, with the governor-general functioning as a de facto non-executive president.
The Constitution of Papua New Guinea has a mixed legal system of common law and customary law. The sources of law are expressly listed in the Constitution and the Underlying Law Act 2000. The Underlying Law Act identifies the main sources of the underlying law as customary law and English common law. Custom is defined as the "customs and usages of the indigenous inhabitants of the country" and takes precedence over common law.
Customary law, as contemplated by the original framers of the Constitution, is derived from the regional customs of the country, similar to the common law of England before 1189. The National Parliament enacted the Underlying Law Act 2000 to mandate greater attention to custom and the development of customary law as an important component of the underlying law. However, the courts have faced challenges in applying traditional customs within a modern legal system.
The English common law referred to in the Underlying Law Act is the law that was in force immediately before 16 September 1975 (Independence Day and the day the Constitution entered into force). This includes any modifications made through amendments, repeals, or alterations by statutes of England, unless the modifying statute has not been adopted in Papua New Guinea.
The Constitution of Papua New Guinea also purports to adopt the principle of the separation of powers, similar to US jurisprudence and Australian law. This principle establishes the independence of the judiciary from executive interference, as outlined in the English Bill of Rights of 1689. However, it does not prevent the courts from rendering advisory opinions to the executive or affect the quasi-judicial function of administrative tribunals.
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The Constitution's judicial system
The Constitution of Papua New Guinea is a roadmap to equality, development, and the realization of the full potential of every Papua New Guinean. The judicial system of Papua New Guinea consists of village magistrates' courts, district courts in urban centres, the National Court, and the Supreme Court.
The village magistrates' courts remain the only court under the administrative responsibility of the executive branch. The district courts in urban centres are presided over by stipendiary magistrates. The National Court is the superior trial court. The Supreme Court is functionally an appellate division of the National Court. The Chief Justice of the National Court is also the Chief Justice of the Supreme Court. The Supreme Court is the final court of appeal. It also has jurisdiction under the Constitution to give advisory opinions, called "references," on the constitutionality of legislation.
The Constitution purports to adopt the principle of the separation of powers, with the judiciary independent from executive interference. The "customary law" portion of the "underlying law" was contemplated by the original framers of the Constitution as deriving from the regional customs of the country. The Underlying Law Act 2000 mandates greater attention by the courts to custom and the development of customary law as an important component of the underlying law. The Act identifies the main sources of the underlying law as the customary law derived from the customs of the various peoples of New Guinea, and the English common law in force before Independence Day in 1975.
The Constitution also includes the National Goals and Directive Principles (NGDPs), which are prominent aspirational statements. The NGDPs include integral human development, equality and participation, national sovereignty and self-reliance, the wise use of natural resources and the environment, and Papua New Guinean ways.
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The Constitution's impact on national identity
The Constitution of Papua New Guinea (PNG) has had a significant impact on the country's national identity. The constitution was drafted during a period of self-government from 1973 to 1975, and it reflects the country's unique history, culture, and aspirations.
One of the most important aspects of the PNG Constitution is its recognition of the country's diversity and its commitment to protecting the rights of all citizens. PNG is a diverse country with dozens of ethnic groups, hundreds of indigenous spoken languages, and a variety of regional customs and traditions. The constitution's National Goals and Directive Principles (NGDPs) reflect this diversity and aim to promote integral human development, equality, and participation for all citizens.
The constitution also played a crucial role in shaping PNG's political system and its relationship with its former colonial powers. During the drafting of the constitution, there was a contemplation that, like most former colonies, PNG would want to have its own indigenous head of state. However, PNG ultimately chose to retain the monarchy, with the governor-general functioning as a de facto non-executive president. The constitution also establishes the separation of powers between the executive, legislative, and judicial branches of government, with the judiciary being independent from executive interference.
The PNG Constitution also has a strong focus on sustainable development and social progress. It includes provisions for the right to health, education, and employment, as well as the protection of natural resources and the environment. The constitution's vision for development is rooted in the country's unique cultural traditions and customs, with an emphasis on carrying the best of the past forward into the present and future.
Additionally, the constitution has played a role in shaping PNG's legal system, which is a mix of common law and customary law. The Underlying Law Act 2000, which was enacted to give effect to the constitution, mandates greater attention to custom and the development of customary law as an important component of the legal system. However, there have been challenges in applying traditional customs in a modern legal context.
Overall, the PNG Constitution has been a crucial factor in shaping the country's national identity, reflecting its diverse culture, history, and aspirations for the future. It has guided the country's political, social, and economic development and remains a source of pride and unity for its citizens.
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Frequently asked questions
The PNG Constitution was drafted during the period of self-government from 1973 to 1975.
The PNG Constitution has its sources in the regional customs of the country, as well as the English common law in force before 16 September 1975 (Independence Day).
The NGDPs are prominent aspirational statements in the PNG National Constitution, which include integral human development, equality and participation, national sovereignty and self-reliance, wise use of natural resources and the environment, and Papua New Guinean ways.
The CPC is responsible for ensuring the legitimacy of the Constitution by working to apply and give effect to the NGDPs. They believe that the Constitution should be an instrument to achieve the NGDPs, rather than obstruct them.
The Underlying Law Act 2000 implements the mandate of Section 20 of the Constitution to declare the 'underlying law', which includes the non-codified sources of law in the PNG legal system, such as customary law and English common law.
