When the Constitution says the Head of State does something on advice, the body giving that advice is usually the National Executive Council.
Sections 138 to 140 — the executive power
- 138 Subject to the Constitution, the executive power of the People is vested in the Head of State, to be exercised in accordance with Division V.2 — that is, only on advice.
- 139 The National Executive consists of (a) the Head of State acting in accordance with Division V.2, and (b) the National Executive Council.
- 140 Except where a contrary intention appears, nothing prevents an Organic Law or statute from conferring powers, functions, duties or responsibilities on a person or authority outside the National Executive. This is what makes independent statutory office-holders and commissions constitutionally possible.
Section 149 — the National Executive Council
(2) The Council consists of all the Ministers (including the Prime Minister when present as Chairman).
(3) Its functions are (a) to be responsible for the executive government of Papua New Guinea, and (b) such other functions as are allocated by the Constitution or any other law.
(4) Its powers may be exercised, as it determines, through a Minister.
(5) Subject to any Organic Law or Act, its procedures are as determined by it.
Section 150 establishes the office of Secretary to the National Executive Council, whose functions and responsibilities are, subject to any Act, determined by the Council.
Section 141 — the Ministry and collective responsibility
The Ministry is a Parliamentary Executive, and therefore:
- (a) no person who is not a member of the Parliament is eligible to be appointed a Minister, and — except as expressly provided otherwise — a Minister who ceases to be a member ceases to hold office;
- (b) it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government and for all things done by or under the authority of the National Executive; and
- (c) it is liable to be dismissed from office, either collectively or individually.
Paragraph (b) is the constitutional statement of collective responsibility, and it is directed to the People through Parliament — not merely to Parliament.
Section 148 — portfolios and political responsibility
- (1) Ministers, including the Prime Minister, have such titles, portfolios and responsibilities as are determined from time to time by the Prime Minister.
- (2) Except as provided by a Constitutional Law or an Act, all departments, sections, branches and functions of government must be the political responsibility of a Minister — and the Prime Minister is politically responsible for any not specifically allocated.
- (3) Subsection (2) does not confer on a Minister any power of direction or control.
Political responsibility is not administrative power. Holding a portfolio does not, by itself, authorise a Minister to direct a department head, a statutory authority or an office-holder. The power to direct must come from a law. Directions given without that authority are open to challenge — and, for a leader, may raise Leadership Code questions.
Section 144 — how many Ministers
There shall be not less than six and not more than 32 Ministers other than the Prime Minister, as determined by or under an Organic Law — the Organic Law on the Number of Ministers. Ministers other than the Prime Minister are appointed by the Head of State on the advice of the Prime Minister. See the appointment and dismissal of Ministers.
NEC advice, records and secrecy
Two provisions shield the Council’s deliberations:
- Section 86(4) — the question what (if any) advice was given to the Head of State, or by whom, is non-justiciable.
- Section 51(1)(b) — records of meetings and decisions of the National Executive Council are among the matters for which secrecy may be reasonably justifiable, limiting the right of access to official documents.
Neither provision protects the substance of a decision from challenge. What is protected is the deliberative process, not the legality of what was decided.
Section 153 — validity of executive acts
Subdivision E deals with the validity of executive acts, and works with section 11: an executive act inconsistent with the Constitution or an Organic Law is invalid and ineffective to the extent of the inconsistency. That is the doorway to judicial review of NEC and ministerial decisions.
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.