Section 142 of the Constitution establishes the office of Prime Minister and sets out how it is filled and vacated. It is short, and every subsection matters.
Section 142(2) — appointment
The Prime Minister shall be appointed — at the first meeting of the Parliament after a general election, and otherwise from time to time as the occasion arises — by the Head of State, acting in accordance with a decision of the Parliament.
The decision is Parliament’s. The Head of State gives it legal form. There is no personal choice, and no discretion to prefer one candidate over another — consistent with section 86(2).
Sections 142(3) and (4) — the first-item rule
- If Parliament is in session when a Prime Minister is to be appointed, the question is the first matter for consideration — after formal business and any nomination of a Governor-General or appointment of a Speaker — on the next sitting day.
- If Parliament is not in session, the Speaker shall immediately call a meeting, and the question is again the first matter on the next sitting day.
The effect is that Papua New Guinea does not tolerate a prolonged vacancy in the office. The obligation on the Speaker to call a meeting immediately is not discretionary.
Who can be Prime Minister
Because the Ministry is a Parliamentary Executive under section 141, the Prime Minister must be a member of the Parliament, and a Minister who ceases to be a member ceases to hold office, except as the Constitution expressly provides.
Section 142(7) adds that an Organic Law made for the purposes of Subdivision VI.2.H may provide that, in certain circumstances, a member is not eligible to be appointed to or to hold the office of Prime Minister — a reference to the Organic Law on the Integrity of Political Parties and Candidates, provisions of which were considered in Re OLIPPAC [2010] PGSC 3; SC1057.
Section 142(5) — leaving office
The Prime Minister:
- (a) shall be dismissed by the Head of State if Parliament passes a motion of no confidence under section 145 in him or the Ministry — except where the motion is moved within the last 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election (in which case a general election follows instead);
- (b) may be dismissed under the Leadership Code; and
- (c) may be removed for incapacity by the Head of State acting in accordance with a decision of Parliament, if the Speaker advises Parliament that two medical practitioners appointed by the national registration authority have jointly reported, in accordance with an Act, that in their professional opinions the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of the office.
Section 142(6) — suspension
The Prime Minister may be suspended:
- (a) by the tribunal appointed under an Organic Law made for the purposes of section 28, pending an investigation into a question of misconduct in office and any resultant action; or
- (b) in accordance with an Act, pending an investigation for the purposes of section 142(5)(c) (incapacity) and any resultant action by Parliament.
Section 143 — the Acting Prime Minister
An Act shall provide for the appointment of a Minister as Acting Prime Minister where there is a vacancy, where the Prime Minister is suspended, or where the Prime Minister is absent from the country, out of speedy and effective communication, or otherwise unable or not readily available.
Section 143(2) deals with the no-confidence case specifically: where a Prime Minister is dismissed under section 142(5)(a), the person nominated in the motion under section 145(2)(a) becomes the Acting Prime Minister until appointed Prime Minister under section 142(2), and may exercise all the powers of the office.
The question whether the occasion for the appointment of an Acting Prime Minister, or for the exercise of a power by one, has arisen or has ceased, is non-justiciable. Courts will not adjudicate on whether the Prime Minister was genuinely “not readily available”.
Section 147 — how long the office is held
Unless they die, resign, cease to be qualified, or are dismissed or removed, a Minister including the Prime Minister holds office until the next appointment of a Prime Minister.
Two continuity rules follow. A Prime Minister who resigns, and a Ministry that resigns collectively, continue in office until the next Prime Minister is appointed (s 147(2)). And a Minister who ceases to be a member of Parliament by reason of a general election, but remains otherwise qualified, continues in office until the next appointment of a Prime Minister (s 147(3)). Papua New Guinea is never without a government.
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.