Of everything in the Constitution, section 177(2) is the provision most likely to matter directly to a person who cannot afford a lawyer.
Section 177(2) — the functions
The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular:
(a) to provide legal assistance to a person in need of help who has been charged with an offence punishable by imprisonment for more than two years;
(b) notwithstanding section 176(5), to provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and
(c) in his discretion in any matter, whether criminal or civil — provided that such assistance is limited to advice and preparation of documents where an Act prohibits legal representation in the proceedings, and is granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act.
Paragraph (a) — the two-year rule
This is the strongest limb. Where a person is in need of help and has been charged with an offence punishable by more than two years’ imprisonment, providing legal assistance is a constitutional function, expressed in mandatory terms.
The threshold is the penalty the offence carries, not the sentence expected. Most indictable offences under the Criminal Code (Chapter 262) are well over the line.
Section 177(4) — how “need” is assessed
The need of a person is to be interpreted in relation to each particular case and, without limiting the expression, account shall be taken of:
- the means of the person to meet the probable cost of obtaining alternative legal assistance;
- the availability of such assistance; and
- the hardship that might result if the person were compelled to obtain legal assistance other than from the Public Solicitor.
Availability matters as much as money. In much of the country there is no private lawyer within practical reach at any price, and section 177(4) requires that to be taken into account.
Section 177(3) — if legal aid is refused
A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under section 177(2)(b).
And section 177(2)(b) is expressed to operate notwithstanding section 176(5) — which otherwise provides that the Public Solicitor is not subject to direction or control by any person or authority. A court direction is the one exception, and it exists for exactly this situation.
Section 176(5) — independence
Subject to section 177(2), in the performance of his functions under the Constitution the Public Solicitor is not subject to direction or control by any person or authority. That protects the office from pressure not to act for unpopular clients or against government agencies.
The Public Solicitor is appointed by the Judicial and Legal Services Commission and may be removed only under sections 178 to 182 — for inability, misbehaviour, or misconduct in office.
Charges, priorities and limits
- Section 177(5) allows an Act to provide for the Public Solicitor to make a reasonable charge for services to persons in need whom he considers able to contribute. See the Public Solicitor (Charges) Act (Chapter 337).
- Section 177(2)(c) makes discretionary assistance subject to an order of priorities relative to the resources of the office, laid down by Act. Resources are a real constraint, and the Constitution acknowledges it.
- Section 177(6) allows an Act to confer additional functions on either Law Officer, not inconsistent with their constitutional functions.
The related rights
- Section 42(2)(b) — a person arrested or detained must be permitted, whenever practicable, to communicate without delay and in private with a lawyer of their choice, including the Public Solicitor if entitled to legal aid.
- Section 37(4)(e) — a person charged shall be permitted to defend themselves in person, at their own expense by a lawyer of their choice, or, if entitled to legal aid, by the Public Solicitor or another representative assigned according to law.
- Section 37(4)(d) — the free assistance of an interpreter where the person cannot understand or speak the language used at the trial.
Go to the nearest Office of the Public Solicitor, or ask the court, the police station or the correctional institution to contact it for you. Take any charge sheet, court papers and correspondence. Say clearly what the offence is and when the next court date is. If you are refused and you disagree, ask for the refusal in writing and raise section 177(3) with the court. More detail: Getting legal help.
Sources
- Constitution — ss 37(4), 42(2), 156, 176, 177, 178–182
- Public Solicitor (Charges) Act (Chapter 337)
- Criminal Code Act (Chapter 262)
- Okona-Meten v Mamu [2019] PGNC 5; N7668
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.