Division VII.6 of the Constitution answers a question that arises whenever a police or defence operation goes wrong: where does responsibility lie between the person who gave the order and the person who carried it out?
Section 207 — what counts as a disciplined force
- (a) the Police Force;
- (b) the Defence Force; and
- (c) any other force or service that is established by or under a statute and is declared by an Organic Law to be a disciplined force for the purposes of the Division.
Both limbs of paragraph (c) are required. A body is not a disciplined force merely because it wears a uniform or has ranks.
For the purposes of an Organic Law made for this Division, a person acting, as required or authorized by law, under the direction of a member of a disciplined force, for the purpose of assisting in the performance of that member’s or the force’s functions or duties, is deemed to be a member of that force.
Section 208(1) — relief from responsibility
Because of the special nature of disciplined forces and of their operations, it is a primary duty of their members to obey lawful orders. Accordingly, an Organic Law shall make special provision for relieving a member from responsibility for the consequences of:
- (a) carrying out a lawful order; or
- (b) carrying out an order which he honestly, and on reasonable grounds, believed to be a lawful order — in which case the onus of establishing his belief and the reasonable grounds on which it was based shall be upon him.
The Organic Law is the Organic Law on the Relief of Members of Disciplined Forces from the Responsibility for the Consequences of Carrying out a Lawful Order.
Paragraph (a) protects the carrying out of a lawful order. Paragraph (b) protects a member who honestly and on reasonable grounds believed the order was lawful — and puts the burden of proving both the belief and its reasonableness on the member. An order that was manifestly unlawful cannot reasonably have been believed lawful, and carrying it out is not protected.
The two-part test in paragraph (b)
- Subjective: did the member honestly believe the order was lawful?
- Objective: were there reasonable grounds for that belief?
Both must be established, and both by the member. This mirrors the structure the law uses elsewhere in Papua New Guinea — for example the “reasonable grounds” test in the Arrest Act (Chapter 339), where a person believes something on reasonable grounds only if they personally hold the belief and there are reasonable grounds for it.
Section 208(2) — who pays
Without derogating from any other right to compensation from the authority responsible for the force, an Organic Law made for the purposes of section 208(1) shall make provision for any liability to make compensation that would otherwise lie on a member of a disciplined force to lie on the authority responsible for the force.
So where relief applies, the liability does not disappear — it moves to the authority. A person harmed is not left without a remedy because the officer was following orders.
The Basic Rights are not displaced
Section 208 relieves members of responsibility in defined circumstances. It does not authorise breaches of the Constitution:
- Section 36 is absolute. No order can make torture or inhuman treatment lawful.
- Section 35(2) provides that nothing in section 35(1)(b) relieves any person from liability at law in respect of the killing of another.
- Section 41 makes an act under a valid law unlawful if, in the particular case, it is harsh, oppressive or disproportionate.
- Section 58 allows damages against the individual, against the governmental body, or both, with apportionment — and the narrow section 58(5) shield protects an individual only where the act was made unlawful only by section 41(1) and they genuinely believed it was required by law.
- Section 204(2)(a) provides that the Defence Force, called out in aid of the civil power, has no power or protection the Police would not have in similar circumstances.
Discipline within the force
Section 159(3) forbids anyone outside the National Judicial System from imposing a sentence of death or imprisonment, or any other penalty as for a criminal offence — but preserves disciplinary detention or other disciplinary punishment (other than death) by a disciplinary authority of a disciplined force on persons subject to its disciplinary law. Section 43(2)(d) likewise excludes from forced labour the labour required of a member in pursuance of their duties.
Sources
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.