Constitution

Papua New Guinea 1975 Constitution (reviewed 2016)

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Table of Contents

PART X. EMERGENCY POWERS

Division 1. Introductory

226. DEFINITIONS

In this Part, unless the contrary intention appears-

  • “declaration of a national emergency” means a declaration under Section 228 (declaration of national emergency);
    “emergency” includes, without limiting the generality of the expression-

    1. imminent danger of war between Papua New Guinea and another country, or of warlike operations threatening national security; and
    2. an earthquake, volcanic eruption, storm, tempest, flood, fire or outbreak of pestilence or infectious disease, or any other natural calamity whether similar to any such occurrence or not on such an extensive scale as to be likely to endanger the public safety or to deprive the community or any substantial proportion of the community of supplies or services essential to life; and
    3. action taken, or immediately threatened, by any person that is of such a nature, and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life;
    “Emergency Act” means an Act of the Parliament made for the purposes of this Part and in accordance with Section 230 (Emergency Act);

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    “Emergency Committee” means an Emergency Committee appointed under Section 240 (Emergency Committees), and includes a Temporary Emergency Committee appointed and in office under Section 241 (Temporary Emergency Committees);

    “emergency law” means-

    1. an Emergency Act; or
    2. an Emergency Regulation;
    “emergency order” means an order made under an emergency law, as provided for by Section 232 (emergency orders);

    “Emergency Regulation” means a law that is made in accordance with Section 231 (Emergency Regulations);

    “internment” means detention that is authorized by or under a law the validity of which depends solely on this Part, but does not include the detention of a member of the armed forces of another country as a prisoner of war;

    “period of declared national emergency” means any period during which-

    1. Papua New Guinea is at war with another country by virtue of a declaration under Section 227 (declaration of war); or
    2. a declaration of a national emergency is in force under Section 228 (declaration of national emergency).

Division 2. Periods of Declared National Emergency

227. DECLARATION OF WAR

The Head of State, acting with, and in accordance with, the advice of the National Executive Council, may publicly declare that Papua New Guinea is at war with another country.

228. DECLARATION OF NATIONAL EMERGENCY

  1. If the National Executive Council is of the opinion that an emergency exists or is about to come into being such that it is necessary that the powers conferred by the succeeding provisions of this Part be available, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may publicly declare the existence of a national emergency in relation to the whole or part of the country.
  2. Unless it is impracticable to do so, a declaration under Subsection (1) shall be made in relation to a part of the country only after prior consultation with the Emergency Committee.

229. TERMINATION OF PERIODS OF DECLARED NATIONAL EMERGENCY

A declaration of war or of a national emergency may be revoked at any time-

  1. by the Head of State, acting with, and in accordance with, the advice of the National Executive Council; or
  2. by decision of the Parliament.

Division 3. Emergency Measures

230. EMERGENCY ACTS

  1. Before or during a period of declared national emergency, the Parliament may make Acts of the Parliament (to be known as “Emergency Acts”) to make provision for dealing with the emergency, and with matters arising out of it.
  2. An Emergency Act shall be expressed to be an Emergency Act.
  3. Except to the extent necessary to bring it into effective operation at the time when it otherwise comes into operation, an Emergency Act made before the commencement of a period of declared national emergency shall not come into operation until the commencement of the period.

231. EMERGENCY REGULATIONS

  1. Subject to this Part, at any time before the end of the period of 24 hours after the Parliament first meets after commencement of a period of declared national emergency the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may make laws (to be known as “Emergency Regulations”) to make provision for dealing with the emergency concerned, and with matters arising out of it if, and to the extent that, the nature of the emergency or its requirements necessitate the making of the provision before the Parliament can reasonably consider the matter.
  2. An Emergency Regulation shall be immediately forwarded to-
    1. the Speaker for presentation to the Parliament; and
    2. an Emergency Committee in accordance with Section 242(1)(a) (functions, etc., of Emergency Committees) or where no Emergency Committee has been established, to the Temporary Emergency Committee established under Section 241 (Temporary Emergency Committees).
  3. Unless earlier extended by decision of the Parliament, an Emergency Regulation expires at the end of the period of 28 days after the making of the declaration of the emergency, or at the end of the period of 14 days after the Parliament first meets after the commencement of the period of declared national emergency, whichever first happens.

232. EMERGENCY ORDERS

  1. An emergency law may make provision for the giving of orders, not inconsistent with the emergency law, by persons authorized to do so by or under the law.
  2. No emergency law shall purport to confer powers to make orders that could not be made in the form of an emergency law.
  3. An order shall, if practicable, be in writing and be notified to the appropriate authority appointed by law.
  4. As far as practicable, details of, or copies of, all orders given in accordance with this section shall immediately be forwarded to-
    1. the Speaker for presentation to the Parliament; and
    2. an Emergency Committee in accordance with Section 242(1)(a) (functions, etc., of Emergency Committees) or where no Emergency Committee has been established, to the Temporary Emergency Committee established under Section 241 (Temporary Emergency Committees).

233. CONTENT, OPERATIONS, ETC., OF EMERGENCY ORDERS

  1. Subject to this Part, an emergency law may make provision for the peace, order and good government of the country to the extent reasonably required for achieving its purpose.
  2. Notwithstanding the provisions of Sections 12 and 13 but subject to Subsections (3) and (4), an emergency law may alter, wholly or partly, and absolutely or subject to conditions, any provision of Division III.3 (basic rights), any Organic Law made for the purposes of any such provision or any other law (other than a Constitutional Law) to the extent reasonably necessary to deal with the emergency concerned, and with 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.
  3. An emergency law-
    1. may not alter-
      1. Section 35 (right to life); or
      2. Section 36 (freedom from inhuman treatment); or
      3. Section 45 (freedom of conscience, thought and religion); or
      4. Section 50 (right to vote and stand for public office); or
      5. Section 55 (equality of citizens); or
      6. Section 56 (other rights and privileges of citizens, and
    2. may provide for internment only in accordance with Division 5 (internment); and
    3. may alter Section 37 (protection of the law) or Section 42 (liberty of the person) only to the extent allowed by Paragraph (b).
  4. In addition, an Emergency Regulation may not alter-
    1. Section 46 (freedom of expression); or
    2. Section 47 (freedom of assembly and association); or
    3. Section 49 (right to privacy); or
    4. Section 51 (right to freedom of information),

    and may not provide for a sentence of imprisonment for a period exceeding nine months.

  5. In the case of an inconsistency between a valid emergency law and any other law, the law made later prevails.

234. RELEASE FROM CUSTODY ON EXPIRY, ETC., OF EMERGENCY REGULATIONS

Subject to any Act of the Parliament made for the purpose of dealing with the effect of the expiry or revocation of a particular Emergency Regulation, any person held in custody under or for the purposes of an Emergency Regulation shall be released from custody on its expiry or repeal, unless he is also held in custody under some other law.

235. CUSTODY OF MEMBERS OF PARLIAMENT UNDER EMERGENCY REGULATIONS OR IN INTERNMENT

If a member of the Parliament is held in custody under an Emergency Regulation, or is an internee, he shall, at all times when the Parliament is in session or when a committee (of which he is a member) of the Parliament is meeting, be released, on such conditions (if any) as are prescribed by an Act of the Parliament, into the custody of the Parliament in order to allow him to attend to his parliamentary duties, unless he is also held in custody under some other law.

236. REVOCATION, ETC., OF EMERGENCY LAWS, ETC.

  1. An Emergency Act may be altered-
    1. by an Act of the Parliament; or
    2. in an urgent case, where to do so would not be contrary to the positive intention expressed by a resolution of the Parliament dealing with the particular emergency, by an Emergency Regulation.
  2. An Emergency Regulation may be altered at any time-
    1. by the Head of State, acting with, and in accordance with, the advice of the National Executive Council; or
    2. by an Emergency Act; or
    3. by decision of the Parliament.
  3. An emergency order may be disallowed at any time by decision of the Parliament.

237. AUTOMATIC TERMINATION OF EMERGENCY LAWS, ETC.

  1. Subject to Section 238 (extension of Emergency Acts) an emergency law, unless it has expired under Section 231(3) (Emergency Regulations) or unless earlier repealed shall be deemed to be repealed immediately after the end of the day on which the period of declared national emergency ends.
  2. Where an Emergency Regulation which has amended or repealed any law in force immediately before the regulation took effect, is deemed to be repealed under Subsection (1), the repeal of that regulation shall revive the previous law from the date of that repeal as if the repealed regulation had not been made.

238. EXTENSION OF EMERGENCY ACTS

  1. Subject to Subsection (2), to the extent that its extension is necessary to deal with the results or aftermath of the period of declared national emergency and is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind, the operation of an Emergency Act may be extended from time to time, after the end of the period of declared national emergency, by decision of the Parliament by an absolute majority vote, for a period or periods each not exceeding two months.
  2. After the end of the period of declared national emergency, internment may be continued only in accordance with Section 244(6) (laws providing for internment).

Division 4. Parliamentary Supervision and Control

239. PARLIAMENTARY CONTROL

  1. Unless the Parliament is in session at the commencement of a period of declared national emergency, it shall be called to meet as soon as practicable, and in any event not more than 15 days, after the commencement of the period and thereafter during the period at intervals each not exceeding two months.
  2. At each meeting of the Parliament during a period of declared national emergency the Prime Minister shall present to the Parliament a statement setting out-
    1. the reasons for the declaration of war or of the national emergency, or for the continuance of the period; and
    2. the reasons for any new Emergency Regulations; and
    3. a report on the operation of the emergency laws.
  3. Unless earlier revoked, a declaration of a national emergency expires at the end of the period of 21 days after its making, but may be extended from time to time by decision of the Parliament by an absolute majority vote, for a period or periods each not exceeding two months.

240. EMERGENCY COMMITTEES

  1. An Act of the Parliament shall provide for and in respect of the appointment of committees of the Parliament (to be known as “Emergency Committees”) in respect of a period or periods of declared national emergency.
  2. No Minister may be a member of a Committee.
  3. A Committee shall be available to meet at all times during the period in respect of which it was appointed.
  4. Subject to the availability of members to meet in accordance with Subsection (3), a Committee should, in principle, be broadly representative of the various parts of the country and of parties and groups in the Parliament.

241. TEMPORARY EMERGENCY COMMITTEES

  1. An Act of the Parliament or the Standing Orders of the Parliament shall make provision for and in respect of the appointment of a Temporary Emergency Committee to hold office if a period of declared national emergency commences at a time when the Parliament is not in session and an Emergency Committee has not been established in accordance with Section 240(Emergency Committees) in respect of the period.
  2. A Temporary Emergency Committee ceases to hold office (except for the purpose of making a report in accordance with Section 242(2) (functions, etc., of Emergency Committees) as to events occurring during its term of office)-
    1. at the time of establishment of an Emergency Committee in accordance with Section 240 (Emergency Committees) in respect of the period of declared national emergency; or
    2. at the end of the first meeting of the Parliament after its establishment,

    whichever first occurs.

242. FUNCTIONS, ETC., OF EMERGENCY COMMITTEES

  1. The Prime Minister shall ensure that-
    1. copies of all emergency laws and, so far as is practicable, of all emergency orders, are forwarded immediately to the Emergency Committee; and
    2. subject to any Emergency Act, the Committee is fully provided with information concerning, and is fully consulted concerning, developments in the situation and in particular concerning proposed emergency laws and the operation of existing emergency laws.
  2. At each meeting of the Parliament during a period of declared national emergency the Emergency Committee shall present to the Parliament a statement as to-
    1. whether or not the period of declared national emergency should continue; and
    2. the justification for and the operation of the emergency laws; and
    3. whether or not any emergency law should be altered,

    and such other related matters as it thinks fit.

  3. As soon as practicable after receipt by him of a request to do so from the Emergency Committee, and in any event not more than 15 days afterwards, the Speaker shall call a meeting of the Parliament to consider-
    1. any statements by the Committee under Subsection (2) and by the Prime Minister under Section 239(2) (Parliamentary control); and
    2. whether or not the period of declared national emergency should be allowed to continue; and
    3. whether or not an emergency law should be altered,

    and such other matters as the Parliament thinks fit.

243. PRIORITY OF EMERGENCY BUSINESS IN PARLIAMENT

During a period of declared national emergency, and while any emergency law is in force, first priority shall, subject to any express provision of this Constitution to the contrary, be given to any question, notice, motion or other Parliamentary process relating to the emergency or to an emergency law.

Division 5. Internment

244. LAWS PROVIDING FOR INTERNMENT

  1. The internment of persons may be permitted only by an Act of the Parliament.
  2. An Act referred to in Subsection (1)-
    1. must be made by an absolute majority vote; and
    2. takes effect on a date fixed by an absolute majority vote of the Parliament made after the commencement of a period of declared national emergency and, after at least four days notice of the relevant motion has been given; and
    3. subject to Subsection (6), authorizes internment only during a period of declared national emergency.
  3. Subject to Subsection (4), at least four days’ notice of the intention to introduce to the Parliament a proposed law to permit internment must be given, and the proposed law must be circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament at least four days before the proposed law is made.
  4. During a time of war, the periods of four days prescribed in Subsection (3) are reduced to 24 hours.
  5. In his certificate given under Section 110 (certification as to making of laws) the Speaker must certify that the requirements of Subsection (2)(a) and (b), and of Subsection (3) or (4), as the case may be, have been complied with.
  6. Internment may continue after the end of the period of declared national emergency only to the extent that is reasonably required for the orderly and peaceful repatriation, resettlement or reestablishment of internees.

245. INTERNMENT

  1. The following provisions apply to and in relation to an internee:-
    1. an internee and his next-of-kin or other close relative in the country shall, as soon as practicable and in any case not more than seven days after the commencement of his internment, be furnished with a statement in writing in a language that he understands specifying in detail the grounds upon which he is interned; and
    2. subject to Section 244(6) (laws providing for internment), an internee (other than an alien enemy) shall be released from detention at the end of the period of two months after his internment unless an independent and impartial tribunal established under paragraph (e) has reviewed his case and found that sufficient cause has been shown for his internment; and
    3. subject to Section 244(6) (laws providing for internment) an internee (other than an alien enemy) shall be released from detention at the end of the period of six months after his internment; and
    4. an internee (other than an alien enemy) is entitled to have his case reviewed by an independent and impartial tribunal established under paragraph (e) as soon as practicable after he has been interned, and in any case not more than one month after the commencement of his internment, and afterwards at intervals not exceeding two months; and
    5. an Organic Law shall provide for the establishment of the independent and impartial tribunal referred to in this section and that the Chairman of the tribunal shall be a person qualified to be a Judge of the National Court; and
    6. the Organic Law referred to in paragraph (e) shall provide that as far as practicable where the case of an internee is being reviewed on a second or subsequent occasion, a majority of the members (including the Chairman) of any tribunal referred to in that paragraph which conducts that review shall be different from the members of any such tribunal which previously reviewed the case of that detainee; and
    7. subject to Subsection (5), where a tribunal established under paragraph (e) finds that a citizen has been interned wrongly or without sufficient reason-
      1. the Head of State, acting with, and in accordance with, the advice of the National Executive Council shall order that he be released; and
      2. he is entitled to compensation, in accordance with law, for the internment and any consequences of it; and
    8. subject to Subsection (5), where a tribunal established in accordance with paragraph (e) finds that there are no longer sufficient grounds for the internment of a citizen, the Minister responsible for national security shall order that he be released immediately; and
    9. a person released from internment in accordance with paragraphs (c), (g) or (h) shall not again be interned substantially on the same facts unless a change in circumstances relating to the grounds of the original internment gives these facts a new significance; and
    10. internees shall be kept separated, as far as practicable, from other persons in custody, and shall receive treatment not less favourable than that afforded to persons in custody awaiting trial for offences; and
    11. internees shall be kept separated, as far as practicable, from other persons in custody, and shall receive treatment not less favourable than that afforded to persons in custody awaiting trial for offences; and
    12. the names and places of residence of internees shall be published in the National Gazette and in any newspaper which has a national circulation, within 14 days of the internment, and at monthly intervals afterwards; and
    13. the Minister responsible for national security shall present to the Parliament at each meeting of the Parliament during the period of declared national emergency, but in any event, at intervals not exceeding six months, reports concerning all internees, their treatment, the review of their cases and action taken in regard to them.
  2. An internee shall be given adequate facilities to prepare and make representations to the review tribunal referred to in Subsection (1)(e) either personally or through a lawyer, and in particular shall be allowed full access to a lawyer (and if necessary to legal aid) and the services of a competent interpreter if required.
  3. An internee shall-
    1. be permitted to appear in person before the review tribunal; and
    2. be permitted to be represented by a lawyer and a friend before the review tribunal.
  4. The tribunal shall forward copies of its findings and recommendations to the internee and to his next-of-kin or other close relative in the country when they are furnished to the Minister responsible for national security.
  5. Where in his opinion it is necessary to do so in the interests of national security or public order, the Head of State, acting with, and in accordance with, the advice of the National Executive Council may refuse to make an order in accordance with Subsection (1)(g) or (h) for the release of an internee, but in that event, except in time of war-
    1. he shall promptly present to the Parliament a report stating that he has refused to release the internee and setting out the reasons for his refusal; and
    2. the Parliament may order that the internee be released.
  6. Where an order is made in accordance with Subsection (5)-
    1. the internee shall be released in accordance with the order; and
    2. Subsection (1)(i) applies as though the order were an order under Subsection (1)(g) or (h), as appropriate.
  7. An Organic Law, an Act of the Parliament or an emergency law may make further provision, not inconsistent with this section, in respect of the treatment, security and discipline of internees.
  8. The provisions of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 14 1949, and any other international convention relating to interned persons, shall be complied with in relation to persons protected by them, and in addition such of those provisions that are of general application and can appropriately be applied to interned citizens shall be complied with in relation to such internees.

Division 6. Miscellaneous

246. EXTENSION OF TENURE OF PARLIAMENT AND GOVERNOR-GENERAL

During a period of declared national emergency the Parliament may, by an absolute majority vote, extend its term of office, or the term of office of the Governor-General, or both, for a term not exceeding the length of the period and such time afterwards as is necessary to allow a general election to be arranged and held, or for a Governor-General to be appointed, as the case requires.

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