What Protects Judicial Independence in PNG?

Judicial independence in Papua New Guinea is not a convention. It is a section of the Constitution, and it is among the most deeply entrenched provisions in the document — altering section 157 requires a three-quarters absolute majority under section 17(3).

How far the prohibition reaches

• It names the responsible Minister expressly — the person most likely to think they have such a power.
• It extends to any other person or authority: the National Executive Council, a department head, a provincial government, a company, a landowner group, a party official.
• It protects any court within the System and any member of any court — including magistrates and members of courts established under section 172, not only Judges.
• The only exception is the Parliament, through legislation. Parliament may change the law the courts apply. It may not tell a court how to decide a case.

The rest of the architecture

1. Appointment outside the Executive. The Deputy Chief Justice, all other Judges and acting Judges are appointed by the Judicial and Legal Services Commission, which is itself not subject to direction or control by any person or authority (s 183(4)). Only the Chief Justice is appointed on NEC advice.
2. Security of tenure. Under section 178, removal is possible only for inability, for misbehaviour, or for misconduct in office under the Leadership Code — and only after a tribunal of judges reports that there are good grounds.
3. Suspension on full pay. Section 182(2) provides that suspension pending a tribunal report is on full pay unless otherwise determined; and a suspended Judge may generally continue and complete proceedings already in hand.
4. Remuneration outside politics. Judges’ terms and conditions are set by the Organic Law on the Terms and Conditions of Employment of Judges, alterable only by another Organic Law.
5. Administrative autonomy. Section 169(3) makes the Chief Justice, after consultation with the other Judges, responsible for the organisation of the affairs and administration of the business of the Supreme and National Courts.
6. Rules of court. Section 184 provides for the Judges to make Rules of Court, so procedure is set judicially rather than by the Executive.
7. Contempt power. Sections 160(2) and 163(2) give both courts, as superior courts of record, the power to punish contempt of themselves — the means of protecting proceedings from interference.
8. Constitutional office-holder protections. Judges are covered by the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders.

Section 155(6) — the duty to obey

Independence would be empty if decisions could be ignored. Section 155(6) provides that, subject to any right of appeal or power of review, it is the duty of all persons — including the Law Officers and other public officers in their official capacities — and of all bodies and institutions, to comply with and, so far as is within their lawful powers, to put into effect all decisions of the National Judicial System.

Section 158(2) — what courts are for

Section 158(1) vests the judicial authority of the People in the National Judicial System. Section 158(2) adds a direction found in few constitutions: “In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”

Read with section 109(4) — every law is to receive such fair, large and liberal construction as best ensures attainment of its object — and with section 25(3), this is the interpretive posture the Constitution asks of Papua New Guinean courts.