How judges are appointed and removed is the practical measure of judicial independence. Sections 168 to 183 of the Constitution set out both.
Section 168 — qualifications
The qualifications for appointment as a Judge are as determined by or under an Act of the Parliament. The Constitution does not fix them itself.
Section 169 — the Chief Justice
The Chief Justice is appointed by the Head of State, acting with and in accordance with the advice of the National Executive Council given after consultation with the Minister responsible for the National Justice Administration.
In addition to judicial functions, the Chief Justice — after consultation with the other Judges — is responsible for the organisation of the affairs and the administration of the business of the Supreme Court and the National Court, other than (except as allowed by Act) matters relating to the National Public Service.
Where there is a vacancy, or the Chief Justice is absent from the country or from duty, is unable or unavailable to act, or so directs, the powers of the office — other than as Acting Governor-General — may be exercised by the next most senior Judge available. Whether that occasion has arisen or ceased is non-justiciable.
Section 170 — the Deputy Chief Justice and other Judges
The Deputy Chief Justice, the other Judges of the National Court and acting Judges are appointed by the Judicial and Legal Services Commission — not by the Executive.
Acting appointments may not continue for more than 12 months, with one extension of up to 12 months available from the Commission. Whether the occasion for an acting appointment has arisen or ceased is non-justiciable.
Section 171 fixes seniority: the Chief Justice, then the Deputy Chief Justice, then the other Judges by date of appointment unless the instrument of appointment says otherwise; acting Judges rank after the other Judges.
Section 178 — the only three grounds
A Judge, the Public Prosecutor, the Public Solicitor or the Chief Magistrate may, during their term of office, be removed only:
- (a) for inability — whether arising from physical or mental infirmity or otherwise — to perform the functions and duties of the office;
- (b) for misbehaviour; or
- (c) under the Leadership Code, for misconduct in office.
The word only is doing real work. There is no removal for unpopular decisions, for delay, or at the pleasure of the government.
Sections 179 to 181 — the process
For the Chief Justice (s 179). If the National Executive Council is satisfied that the question should be investigated, the Head of State on NEC advice may appoint a tribunal under section 181 and refer the matter to it, together with a statement of the reasons for its opinion. If the tribunal reports that there are good grounds, the Head of State on NEC advice may remove the Chief Justice by notice in writing. The Prime Minister must send a copy of the notice and of the tribunal’s report to the Speaker for presentation to the Parliament, and to the Judicial and Legal Services Commission.
For every other Judge, the Public Prosecutor, the Public Solicitor and the Chief Magistrate (s 180). The same process, but initiated and completed by the Judicial and Legal Services Commission, with the notice and report going to the Speaker for presentation to Parliament.
A Chairman and two other members, each of whom must be: a Judge or former Judge of the Supreme or National Court; a former Judge or acting Judge of the pre-Independence Supreme Court; or a Judge or former Judge of a court of unlimited jurisdiction of a country with a legal system similar to that of Papua New Guinea, or of a court to which an appeal from such a court lies.
The tribunal shall make due inquiry without regard to legal formalities or the rules of evidence, and may inform itself as it thinks proper — subject to compliance with the principles of natural justice.
Section 182 — suspension
- Where a question has been referred to a tribunal, the person may be suspended pending the report — by the Head of State on NEC advice for the Chief Justice, and by the Judicial and Legal Services Commission in any other case. The suspension may be removed at any time.
- Unless otherwise determined, the suspension shall be on full pay.
- A suspended Judge or Chief Magistrate who was dealing with judicial proceedings may continue and complete them, unless the Commission (for the Chief Justice) or the Chief Justice (in any other case) otherwise orders.
Terms and conditions of employment
Judicial salaries and conditions are dealt with by the Organic Law on the Terms and Conditions of Employment of Judges, and Judges are within the protections of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders. Removing remuneration from the ordinary political process is part of what makes independence real.
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.