Division VII.5 of the Constitution is one of the most carefully drafted parts of the document. Its concern is plain: an army under law, and under civilians.
Section 200 — unauthorized forces
It is strictly forbidden to establish, organize, equip, train or take part in or associate with a military or para-military force, or to organize or take part in military or para-military training, except as provided for by this Constitution — or to plan, prepare for or assist in the raising or training of such a force or in such training.
The prohibition reaches planning, preparation and assistance, not only the force itself. Section 200(2) preserves, in accordance with an Act, (a) reserve, auxiliary or special forces as part of the Defence Force, and (b) civilian components and non-combatant units within, attached to or associated with it. Section 200(3) allows an Act to disapply subsection (1) to the armed forces of a specified other country.
Section 201 — control
- (1) There shall be no office of Commander-in-Chief of the Defence Force, whether honorary or otherwise.
- (2) The Defence Force is subject to the superintendence and control of the National Executive Council, through the Minister responsible for the Defence Force.
- (3) No serving member of the Defence Force may be the Minister responsible for it.
- (4) That Minister shall not use any military rank or title, and — except as provided by a Constitutional Law or an Act — has no power of command within the Defence Force.
- (5) There shall be a Commander of the Defence Force, the principal military adviser to the Minister, and an officer of the National Public Service who is the principal civilian adviser to the Minister on Defence Force matters.
Subsections (1), (3) and (4) are unusually explicit. There is no ceremonial military figurehead, no serving officer as Minister, and no military rank attaching to the civilian in charge.
Section 202 — functions
- (a) to defend Papua New Guinea and its territory;
- (b) to assist in fulfilling Papua New Guinea’s international obligations;
- (c) to provide assistance to civilian authorities — in a civil disaster; in the restoration of public order and security on being called out under section 204; or, in accordance with an Act, during a declared national emergency; and
- (d) to perform, as directed, functions and services of a civil nature so as to participate to the maximum in the task of national development and improvement.
Section 203 — no special position under the law
Because it is necessary that the Defence Force and its members have no special position under the law except to the extent required by the nature of a disciplined force and its peculiar functions, it is declared that — except as specifically provided by a Constitutional Law or an Act — the Defence Force and its members are subject to all laws in the same way as other bodies and persons.
Section 204 — call-out in aid to the civil power
The Force may be called out to help restore public order and security only by the Head of State, acting on the advice of the National Executive Council. When called out, it:
- (a) does not have, and shall not be given, any power or protection that the Police Force would not have in similar circumstances;
- (b) shall support the Police Force for so long and so far as is necessary to enable the Police to restore public order and security;
- (c) shall act only on, and to the extent specified in, a request by the appropriate civilian authority in accordance with an Act; and
- (d) shall cease to act when directed to do so by the Head of State on NEC advice.
Soldiers called out in aid of the civil power have no greater powers than police officers would have — and no greater protection. The section 42 rights on arrest, the section 44 limits on search and entry, section 36, and section 41 all apply in full.
Section 205 — active service and going abroad
- Except for defence against attack, the Force may be ordered on active service only by the Head of State on NEC advice, and may be sent out of the country only by the authority of, and on conditions imposed by, the Head of State on NEC advice.
- Section 205(2): the Force may not be ordered on or committed to active service, or to an international peace-keeping or relief operation, outside the country without the prior approval of the Parliament.
Section 206 deals with visiting forces; see the Defence (Visiting Forces) Act (Chapter 77). Section 42(9)(b) also excludes from section 42 persons in custody under another country’s law as permitted by an Act made for the purposes of section 206.
Members and lawful orders
The Defence Force is a disciplined force under section 207, so section 208 and the Organic Law on the Relief of Members of Disciplined Forces apply — see obeying orders. Section 43(2)(d) also excludes from forced labour the labour required of a member of a disciplined force in pursuance of their duties.
Sources
- Constitution — ss 42(9), 43(2)(d), 189, 193, 200–208
- Defence (Visiting Forces) Act (Chapter 77)
- Defence (Australian Forces) Act (Chapter 75)
- Disaster Management Act (Chapter 403)
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.