How Is the PNG Constitution Amended?

The Constitution of Papua New Guinea has been altered many times — the current consolidation runs to Constitutional Amendment No 44. Amendment is common. It is also, by design, procedurally difficult, and the procedure is where most challenges are fought.

Section 13 — the only route

Under the Constitution, it may be altered only by a law made by Parliament that is (a) expressed to be a law to alter the Constitution, and (b) made and certified in accordance with section 14.

Section 16 closes the side door: no Constitutional Law takes effect so as to affect the operation of an existing provision unless it was made in the manner and form required for the alteration of that provision. There is no amendment by implication.

Section 14 — the procedure

A proposed law to alter the Constitution, or a proposed Organic Law, must be:

1. supported on a division in accordance with the Standing Orders;
2. by the prescribed majority of votes determined under section 17;
3. on at least two occasions, after opportunity for debate on the merits;
4. at different meetings of the Parliament;
5. separated in time by at least two months;
6. with the proposed law published in full by the Speaker in the National Gazette, and circulated to all members, not less than one month before it is formally introduced.

Section 14(3) adds a discipline on amendments to the proposal: they may not be moved unless circulated to members before the end of the meeting at which the first opportunity for debate occurs. That prevents a proposal being transformed between the first and second votes.

The Speaker’s certificate

In the certificate given under section 110, the Speaker must certify that the requirements of section 14(1), (2) and (3) have been complied with. The certificate must state the date of each vote, and for each vote the number of seats in Parliament at the time and the numbers voting for and against. It is, in the absence of proof to the contrary, conclusive evidence of what it states.

That evidentiary weight is why the certificate itself is often the battleground. See the Speaker’s certificate explained, and Haiveta v Wingti (No 2) [1994] PGSC 7; [1994] PNGLR 189.

The shortcut for trivial changes

Section 14(6) allows the double-vote requirement to be bypassed where the Speaker, after consultation with the Chief Justice or a Judge nominated by the Chief Justice, certifies that the proposed law:

• does not affect the substance of any provision to be altered; or
• is designed to correct a self-evident error or omission; or
• is merely incidental to or consequential on some other alteration.

Such a law may then be made in the same way as an ordinary Act — unless Parliament decides otherwise in the particular case.

Section 15 — urgent alterations (spent)

Section 15 allowed the two-month separation to be waived on the ground of urgency by a two-thirds absolute majority, with four days’ notice and Gazette publication, and with the debates separated by at least two weeks. It expressly ceased to have effect at the first moment of the fourth anniversary of Independence Day — that is, in September 1979 — and is now spent. It also never applied to the Preamble, the Leadership Code, the Basic Rights, citizenship, the Parliament, the administration of justice, provincial government, the State Services, supervision and control, constitutional office-holders or emergency powers.

The most protected provisions

Section 17(3) requires a three-quarters absolute majority for alterations to a listed set of sections, including sections 35 (right to life), 36 (freedom from inhuman treatment), 50 (right to vote and stand), 57 (enforcement of rights), 155 (the National Judicial System) and 157 (independence of the National Judicial System). Most other provisions attract a two-thirds absolute majority; a further list attracts an absolute majority.