Division VI.5 of the Constitution establishes the administration of justice, and it distinguishes carefully between two things that are often confused.
Section 154 — the National Justice Administration
The National Justice Administration consists of:
- (a) the National Judicial System;
- (b) the Minister responsible for the National Justice Administration; and
- (c) the Law Officers of Papua New Guinea.
Section 156 identifies the Law Officers: the principal legal adviser to the National Executive (the Attorney-General, provided for by the Attorney-General Act 1989), the Public Prosecutor, and the Public Solicitor.
Section 155(1) — the National Judicial System
The National Judicial System consists of (a) the Supreme Court; (b) the National Court; and (c) such other courts as are established under section 172.
Section 158(1): the judicial authority of the People is vested in the National Judicial System. Section 158(2) adds a direction of real weight: in interpreting the law the courts shall give paramount consideration to the dispensation of justice.
Section 172 — other courts
Acts of Parliament may establish, or provide for the establishment of, courts within the National Judicial System in addition to the Supreme and National Courts, and may define their powers, functions and jurisdictions and their relationship with other components of the System.
Section 172(2) is distinctive: those courts may include courts intended to deal with matters primarily by reference to custom or in accordance with customary procedures, or both. That is the constitutional foundation of the Village Court system, and it fits with the treatment of custom as part of the underlying law.
- Full-time members of courts established under section 172 — other than customary courts — are appointed by the Judicial and Legal Services Commission, and may be removed only for incapacity or misbehaviour (including misconduct in office).
- For customary courts under section 172(2), appointment and removal are dealt with by Act.
Section 173 — the Magisterial Service
A service known as the Magisterial Service is established, consisting of the Chief Magistrate, all other members of courts established under section 172 (subject to section 174), and such other persons employed in connection with the National Judicial System as are prescribed. The governing statute is the Magisterial Service Act (Chapter 43).
Section 159 — tribunals outside the System
Nothing prevents an Organic Law or statute conferring judicial authority on a person or body outside the National Judicial System, or the establishment — by law or by consent of the parties — of arbitral or conciliatory tribunals. Section 159(2) confirms that this does not affect the operation of section 155(4) or (5).
No person or body outside the National Judicial System has, or may be given, power to impose a sentence of death or imprisonment, or to impose any other penalty as for a criminal offence.
Three narrow exceptions are preserved: (a) disciplinary detention or other disciplinary punishment (other than death) by a disciplined force on persons subject to its disciplinary law; (b) disciplinary punishments (other than death or detention) on members of other State or provincial services; and (c) reasonable penalties (other than death or detention) imposed by an association on its members for breaches of its rules.
Section 157 — independence
Except to the extent the Constitution specifically provides otherwise, neither the Minister responsible for the National Justice Administration nor any other person or authority — other than the Parliament through legislation — outside the National Judicial System has any power to give directions to any court, or to a member of any court, in respect of the exercise of judicial powers or functions. See judicial independence.
Section 155(6) — the duty to comply
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 respective lawful powers, to put into effect all decisions of the National Judicial System.
Court orders are not advisory, and a public officer’s duty to give effect to them is stated in the Constitution itself.
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.