Sections 196 to 199 of the Constitution set out the constitutional position of the Police Force. Several of these provisions are directly useful to a member of the public.
Section 196 — control, and its limit
(1) The Police Force is subject to the control of the National Executive Council through a Minister.
(2) The Minister has no power of command within the Police Force, except to the extent provided for by a Constitutional Law or an Act of the Parliament.
The distinction is between control — policy, resourcing, general direction — and command, which is operational. A Minister who directs officers to arrest a particular person, or to drop a particular case, is exercising command, and section 196(2) says he has no such power unless a law gives it.
Section 189 adds that the Police Force is a civilian service and, like every State Service, is subject at all times to ultimate civilian control.
Section 197 — the primary functions
In accordance with the Constitutional Laws and Acts of the Parliament, the primary functions of the Police Force are:
- (a) to preserve peace and good order in the country; and
- (b) to maintain and, as necessary, enforce the law in an impartial and objective manner.
Paragraph (b) is a constitutional standard, not a slogan. Impartial and objective enforcement is what the Constitution requires, and partiality in enforcement is a constitutional failure as well as an administrative one.
Section 197 provides that, subject to subsection (4), insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.
This is the police counterpart of the Public Prosecutor’s independence. Pressure from outside the Force to lay, or to drop, a charge is contrary to the section.
Sections 197(3) and (4) — overseas deployment
It is a further function of the Police Force to assist in the fulfilment of Papua New Guinea’s international obligations by taking part in an international peace-keeping or relief operation. But the conditions are strict. The Force, or part of it:
- (a) may be ordered on or committed to such an operation only by the Head of State, acting on the advice of the National Executive Council, given after the approval of the Parliament; and
- (b) shall operate in another country in accordance with an Act providing for its presence there, and in particular for the assertion of the exclusive jurisdiction of Papua New Guinean courts, tribunals and Police Force authorities over its members in that country, and for the manner of its operations.
See the Police Force (Presence Abroad) Act 2004.
Section 198 — the Commissioner of Police
There shall be, within the Police Force, an office of Commissioner of Police, responsible for the superintendence, efficient organization and control of the Force in accordance with an Act.
The Commissioner is appointed under section 193(1)(e), and is a leader within section 26(1)(h) — subject to the Leadership Code in full.
Section 199 — one Police Force
There shall be only one Police Force in Papua New Guinea — but the section does not prevent, by or under an Act:
- (a) the creation of reserve or special forces or other similar forces;
- (b) the creation of special bodies, or the authorisation of persons other than members of the Force, for the administration or enforcement of particular laws; or
- (c) the conferring of police powers on persons who are not members of the Force.
If someone who is not a police officer asserts police powers, the constitutional question is which Act confers them. Under paragraphs (b) and (c) that must be traceable to legislation — and under section 32(2)(c), no person is obliged to do anything that is not required by law.
Section 199 also reinforces section 200, which strictly forbids establishing, organising, equipping, training, taking part in or associating with a military or para-military force except as the Constitution provides.
Police powers and your rights
The constitutional limits on policing are found in the Basic Rights: section 42 (liberty, and what must happen on arrest), section 44 (search and entry), section 36 (absolute), section 37, and section 41, under which even a lawful power exercised harshly or disproportionately in the particular case is an unlawful act. Remedies come through sections 57 and 58.
Sources
- Constitution — ss 36, 37, 41, 42, 44, 57, 58, 189, 193, 196–200, 207, 208
- Arrest Act (Chapter 339)
- Police Force (Presence Abroad) Act 2004
- The State v Mai and Avi [1988] PGSC 22; [1988-89] PNGLR 56
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.