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Who Are the Constitutional Office-holders, and Why Are They Protected?

Judges, the Public Prosecutor, the Public Solicitor, the Chief Magistrate, members of the Ombudsman and Electoral and Public Services Commissions, the Clerk of the Parliament and the Auditor-General — each protected against dismissal, pay cuts and abolition of their office.

The Constitution series, no. 89 · Part IX — Constitutional Office-holders · 5 min read

Part IX of the Constitution exists to make sure that certain offices can do their jobs without fear of the government of the day.

Section 221 — the definitions

A “constitutional institution” is any office or institution established or provided for by the Constitution, other than the office of Head of State, the office of a Minister, or the National Executive Council.

A “constitutional office-holder” means:

All constitutional office-holders are also leaders under section 26(1)(e) — protection and accountability go together.

Section 223 — the guarantees

Section 223(2) — what Organic Laws must guarantee

(a) the grounds and procedures for dismissal or removal — and dismissal or removal only by, or in accordance with the recommendation of, an independent and impartial tribunal; and

(b) that at the end of their term, unless dismissed, they are entitled to suitable further employment by a governmental body, or adequate and suitable pensions or other retirement benefits, or both.

Paragraph (b) addresses a real vulnerability: an office-holder worried about what happens after the term ends is not fully independent during it.

Sections 223(3) to (5) — four hard protections

  1. No suspension, dismissal or removal during the term except in accordance with a Constitutional Law (s 223(3)).
  2. Emoluments may not be reduced while in office (s 223(4)) — except (a) as part of a general reduction applying equally or proportionately to all constitutional office-holders (or, for a member of a State Service, to that service), or (b) as a result of non-discriminatory taxation.
  3. The office may not be abolished while there is a substantive holder (s 223(5)) — though this does not apply to an additional constitutional office created by an Act.
  4. Acting appointments remain possible: section 223(6) permits reasonable provision for a person to act temporarily in the office.
Why (2) and (3) matter

Cutting the pay of an inconvenient office-holder, or abolishing the office and re-creating it with a different occupant, are the classic indirect routes to removing independence. Sections 223(4) and (5) close both.

Section 224 — powers of constitutional institutions

Organic Laws and Acts shall provide for the powers and procedures of constitutional institutions and generally facilitate the performance of their functions. And where no such provision is made, section 224(2) supplies the gap: a constitutional institution:

  • (a) may provide, to the extent of the deficiency, for its own procedures; and
  • (b) has all reasonable powers that are necessary or convenient for the exercise and performance of its powers, functions, duties and responsibilities.

This is the institutional counterpart of section 22, under which the National Court supplies missing machinery for constitutional rights and duties. A constitutional body does not stop working because Parliament has not yet legislated for it.

Section 225 — the duty to provide facilities

It is the duty of the National Government, all other governmental bodies, and all public office-holders and institutions, to ensure — as far as is within their respective legal powers — that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and offices.

Starving an institution of staff and resources is, in constitutional terms, a breach of a duty — not merely a budget decision. Where that occurs, it is conduct the Ombudsman Commission may investigate under section 219, and section 219(8) makes clear that inaction relating to a matter of administration counts as conduct.

The Organic Laws that do this work

Sources

Check the section yourself

Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.