When a constitutional amendment is challenged in Papua New Guinea, the argument is frequently not about the merits of the change but about arithmetic: was the right majority obtained? Section 17 of the Constitution supplies the answer.
First: what “absolute” means
An absolute majority is calculated on the total number of seats in the Parliament, not on the members present and voting. Empty seats and absences count against the proposal. That is why the Speaker’s certificate under section 14 must state the number of seats in the Parliament at the time of each vote as well as the votes cast — the two numbers together are what prove compliance.
The three tiers
| Tier | When it applies |
|---|---|
| Absolute majority | Listed provisions in s 17(2), including ss 3, 6, 8, 20, 21, 23, 24, 26–31, 63, 68, 69, 73, 77–98, 101, 103, 104, 110, 117, 138, 139, 150, 156, 165, 167, 171, 184–187, 206, 248–252, 264–268, Sch.1.21, Sch.2.1–2.14, and Schedules 3, 4 and 5. |
| Two-thirds absolute majority | The default. Where the Constitution prescribes no particular majority for a provision, s 17(1) supplies a two-thirds absolute majority. |
| Three-quarters absolute majority | Listed provisions in s 17(3): ss 35, 36, 50, 57, 105, 106, 109, 113, 125, 126, 155, 157, 160, 163, 217, 235, 239, 243, 244, 245 and 269. |
The most deeply entrenched provisions are the ones that keep the system honest: s 35 (right to life), s 36 (freedom from inhuman treatment), s 50 (right to vote and stand for public office), s 57 (enforcement of guaranteed rights and freedoms), s 155 (the National Judicial System), s 157 (independence of the National Judicial System), s 217 (the Ombudsman Commission), and the provisions on the life and dissolution of Parliament and on electorates and elections.
Adding a new provision
Section 17(4): for a proposed law to add a new provision to the Constitution, the prescribed majority is the same as would be required to alter that provision if it were already enacted. You cannot insert a deeply entrenched provision on a lower majority than would be needed to amend it later.
Organic Laws
Section 17(5) deals with Organic Laws:
- to alter a provision of an Organic Law — the same majority that would have been required to make the provision being altered;
- otherwise — the majority prescribed by the Constitution for making that Organic Law (not less than an absolute majority), or, if none is prescribed, a two-thirds absolute majority.
Section 17(8) then caps entrenchment: no Organic Law may require a majority for altering one of its provisions greater than the majority by which that law was made.
A proposal touching several provisions
Section 17(6) resolves the obvious problem. Where different prescribed majorities apply to different provisions in a single proposed law, the prescribed majority for the law as a whole is the greatest of those majorities. An omnibus amendment that touches one three-quarters provision must clear the three-quarters bar for the whole instrument.
Section 17(7) preserves flexibility the other way: nothing prevents different majorities being prescribed for different aspects or subject-matters of a single provision.
The transitional rule (spent)
Section 17(9) provided that, until 16 September 1980, adding a new provision to the Constitution, and making an Organic Law for which the Constitution provided when adopted, required only an absolute majority. That window closed in 1980; the rule is now of historical interest only, though it explains the majorities recorded for several early instruments.
Constitutional amendments are more often attacked on process than on substance — the wrong majority, votes not separated by two months, a proposal not published in the National Gazette in full a month in advance, or amendments moved without prior circulation. Those grounds are objective and provable from the record.
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.