The Public Prosecutor is one of the three Law Officers of Papua New Guinea, and one of the constitutional office-holders whose independence is protected in terms.
Section 176 — establishment and appointment
Offices of Public Prosecutor and Public Solicitor are established by the Constitution. Both are appointed by the Judicial and Legal Services Commission — not by the Executive.
Removal is governed by sections 178 to 182: 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.
Section 176(3) — independence, and its one exception
(a) In the performance of his functions under the Constitution, the Public Prosecutor is not subject to direction or control by any person or authority; but
(b) nothing in paragraph (a) prevents the Head of State, acting on the advice of the National Executive Council, giving a direction to the Public Prosecutor on any matter that might prejudice the security, defence or international relations of Papua New Guinea.
The exception is narrow and subject-matter specific. It does not permit a direction to prosecute or not to prosecute a particular person for ordinary reasons of policy or politics.
The Prime Minister shall table in the National Parliament any direction to the Public Prosecutor at the next sitting after it is given — unless, after consultation with the Leader of the Opposition, he considers that tabling is likely to prejudice the security, defence or international relations of Papua New Guinea.
Even the withholding of a direction requires consultation with the Opposition. The default is transparency.
Section 177(1) — the functions
The functions of the Public Prosecutor are:
- (a) in accordance with an Act and the Rules of Court of the Supreme and National Courts, to control the exercise and performance of the prosecution function — expressly including appeals, the refusal to initiate prosecutions, and the discontinuance of prosecutions — before the Supreme Court and the National Court, and before other courts as provided by Act; and
- (b) to bring or to decline to bring proceedings under the Leadership Code for misconduct in office.
Paragraph (a) is worth reading carefully. The constitutional function includes the negative decisions — not to charge, and to discontinue. Those are as much part of the protected function as the decision to prosecute, and equally free from direction.
The leadership role
Under section 29, where the Ombudsman Commission is satisfied there is a prima facie case of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a leadership tribunal.
Section 29(2) supplies a check: if the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead. The Public Prosecutor’s power to “decline to bring” proceedings under section 177(1)(b) is therefore real but not final.
The Public Prosecutor also requests the appointment of the tribunal — a power examined in Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal [2008] PGSC 48; SC1011.
A Law Officer, with section 19 and section 57 standing
As one of the Law Officers under section 156, the Public Prosecutor:
- may make a special reference to the Supreme Court under section 19(3)(c); and
- is declared by section 57(2)(a) to have an interest in the protection and enforcement of the Basic Rights.
The Public Prosecutor is not your lawyer
The Public Prosecutor acts for the State in criminal proceedings. If you are a complainant, the Public Prosecutor does not represent you and cannot advise you. If you are charged, the office you want is the Public Solicitor, whose function is to provide legal aid, advice and assistance — and who must assist a person in need charged with an offence punishable by more than two years’ imprisonment.
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.