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PNG Constitutional Planning Committee Report 1974
Constitutional Planning Committee Report 1974
1. After everything has been said and written our Constitution for Independence will need to be adopted as the fundamental law of our country.
2. In his statement to the House of Assembly concerning the establishment of our Committee, in June 1972, the Chief Minister stressed that our recommendations should be for a "home-grown" Constitution. What has influenced us in framing our recommendations has been the desire to meet Papua New Guinean needs and circumstances and, in particular, to base these recommendations on the National Goals and Directive Principles which we have put forward in Chapter 2.
3. Having done our best to incorporate the views of the people in these proposals for the Constitution of our nation and to make adequate provision for what we believe are their needs and aspirations, and taken due account of their fears, we believe the Constitution itself should be legally, as well as politically, "home-grown". In legal terms, it should be "autochthonous". By this we mean that it should have its legal origin in a law of Papua New Guinea, not in an external source, such as the laws of Australia or of any other country.
4. We believe that this step of breaking our legal link with the law of Australia, the administering power, will be symbolic of the definite break with the past which we will achieve when we bring the Constitution into force and obtain our Independence. The Committee believes this should be so regardless of any legal theory which might make the validity of our Constitution depend upon a foreign source. Nor should the legal standing depend on the prior consent of the Australian Governor-General, or of the High Commissioner, his representative in Papua New Guinea.
5. To give effect to our political intention that the Constitution should be autochthonous, we recommend that the appropriate steps be taken to ensure that there is no room for doubt as to its legal validity. To achieve this objective it is essential that the Constitution be established outside the authority of the Papua New Guinea Act. Of course, the full co-operation of the Australian Government and Parliament will be needed if the procedure we propose is to be carried out smoothly. However, there seems to be every reason for believing that this co-operation will readily be given by Australia.
6. We consider that the members of the House of Assembly, who are the elected representatives of the people in our national parliament, should adopt the Constitution. It is they who have been making crucial decisions about the emergence of our country as a nation, and it is they who, under our recommendations, are to be given the responsibility of making amendments to the Constitution.
7. However, our parliamentarians should not sit as the House of Assembly when they consider the Draft Constitution and adopt it. Otherwise there would be no break in the legal chain linking Australian law and our own law. The House should adjourn and re-convene as a Constituent Assembly to carry out this historic task of adopting our Constitution for Independence.
8. When the Constituent Assembly sits it should first elect a chairman to preside over the proceedings. It would then debate the Draft Constitution, and -
§ adopt it, with or without amendments;
§ resolve that it be established as the Constitution of the Independent State of Papua New Guinea, and come into force on Independence Day.
9. After the adoption of the Constitution, the House of Assembly could meet and, in accordance with its resolution of 9 July 1974 (that the House should endorse a date for Independence after the Constitution has been adopted) would be able, after debate on the issue, to pass a resolution endorsing a date for Independence.
10. This proposal would achieve several important objectives.
Firstly, it would be substantially in accordance with the above resolution of the House.
Secondly, it would allow time for the necessary legislative and administrative action associated with the commencement of the Constitution and the attainment of Independence to be taken in the period between the adoption of the Constitution and its commencement. Yet, at the same time, it would provide assurance to our people, particularly minority groups, that their interests will be protected when Papua New Guinea becomes independent and attains full nationhood.
Finally, it would enable autochthony to be achieved without having a period during which validity of the Constitution is in doubt. We understand that this would be the case if the Constitution, adopted and established in the manner we propose, were brought into force before Independence Day.
11. We recommend that the Australian Government be requested, for its part, to introduce into the Australian Parliament a Bill for an Act which would come into force just before the end of the last day before Independence Day (the date of which would have been endorsed by the House of Assembly). That Act should, as from Independence Day -
(a) recognize the Independent State of Papua New Guinea as a sovereign Independent State;
(b) repeal the Papua New Guinea Act 1949-1973; and
(c) clearly state that Australia no longer has, and shall not exercise, any powers of legislation, administration or jurisdiction in or over the Independent State of Papua New Guinea.
12. This Act of the Australian Parliament should also provide that, as from the day of Independence, all Acts that extend to Papua New Guinea or a part of Papua New Guinea as a dependency of Australia shall cease to apply to this country, and that all Acts and laws of the United Kingdom applying to Papua New Guinea or a part of this country are repealed in their application to Papua New Guinea.
13. Finally, the Australian Act should recognize and acknowledge the Independence Constitution of Papua New Guinea established by the Constituent Assembly (in the manner we have described above) as the sole Constitution of our country on Independence Day.
14. It follows from having an autochthonous Constitution that all laws in the country must stem from that Constitution. The present laws should be adopted anew by the Constitution in view of the break in the legal chain which autochthony achieves. We recommend that to make it quite clear that there is such a break, the House of Assembly should, as its last action, repeal all laws that are within its power to repeal.
15. Ideally, only those existing laws which are in conformity with the new Constitution should be adopted by it. However, we recognize the necessity to make provision for a reasonable time to elapse before the Constitution becomes fully effective in respect of the body of presently existing law, to enable all of our present laws to be carefully reviewed, and inconsistent laws repealed or amended as is appropriate. We suggest that a period of two years should provide sufficient time for this work to be done. The task could be carried out either by the proposed Law Reform Commission or the special alternative body which, in Recommendation 23 of our Chapter on Human Rights and Obligations and Emergency Powers, we propose be established to review existing laws for the purpose of making recommendations for the repeal or amendment of those laws which are not in conformity with either the National Goals and Directive Principles or the Fundamental Human Rights and Obligations which are to be incorporated in the Constitution.
16. Part of the existing body of law in Papua New Guinea is the common law. We are aware that for some time the interpretation to be given to this term has been under discussion among lawyers, with different views being expressed as to whether a narrow or a broad interpretation should be given to it. We believe this is a matter which should be resolved by the Law Reform Commission, taking full account of our recommendations in Chapter 2, "National Goals and Directive Principles", and in Chapter 8, "The Administration of Justice".
17. It will be necessary, also, for all public office-holders to be re-appointed under the new Constitution, and where an oath or affirmation of office is required to be made, for that oath or affirmation to be made under the new Constitution.
18. Our Constitution should contain an introduction or opening clause which sets out our basic beliefs. It is through the Almighty God that all our institutions and efforts are made. Our country should be based on basic principles of brotherhood which are found in our ancient customs and values and in Christianity.
19. All power belongs to our people. National integrity and self-respect must not be limited. Our cultures should be promoted. Our material and spiritual benefits should be shared. We should respect every individual; encourage peaceful solutions to situations of conflict, instead of fighting to achieve our objectives; and always strive to be self-supporting at the community and national levels, and individually. By acting in these ways we will safeguard the rights and duties, powers and privileges of our people, and help to build a just society.
20. We believe our country should be known as the Independent State of Papua New Guinea, with the present flag and emblem as the flag and emblem of our new nation. We should have a motto and anthem to be determined by the National Parliament.
21. Because sovereignty over our natural resources is so basic to a nation, we recommend that this be asserted as a fundamental constitutional provision. This should serve to emphasize Papua New Guinea's right to exercise effective control over its resources and their exploitation, with means suitable to its own situation, including nationalization or transfer or ownership to our own citizens, this right being an expression of the full permanent sovereignty of our State.
22. Land being the most basic resource of our people, the use of which we should strictly control in the interests of our citizens, believe that only citizens of Papua New Guinea should be allowed to have complete ownership of this resource. We do not suggest that foreign citizens should not be able to hold any interests in land. We simply say that no foreigner should have a freehold interest in land. He or she may have a leasehold or other interest which is more limited than freehold. This recommendation is consistent with the recommendations contained in the Report of the Committee of Inquiry into Land Matters.
New and existing offices and institutions to be established by or under the Constitution
23. The establishment of the new constitutional and other offices which our Report recommends should be set up, should be given high priority, as we believe it is important that our people see and obtain the advantages of the Constitution being fully implemented as soon as possible after it comes into force. The people's expectations will be raised by the advent of the Constitution and Independence, and we believe it is important from the point of view of nation building, that those expectations be met as far as is reasonably possible.
24. We have made specific recommendations, also, dealing with the situation where it is impracticable prior to Constitution Day to pass, and bring into force, legislation making detailed provision for the structure, powers and functions of any proposed constitutional office-holder or institution.
25. The Committee has recommended, also, that existing offices and institutions which, under proposals in this Report are to be entrenched in the Constitution, are to continue to function as at present until legislation concerning them made under the authority of the Constitution, has been passed and brought into force.
26. The preparation of the Draft Constitution for submission to the Constituent Assembly which we recommend should consider and adopt the Constitution, is a matter of considerable importance. We believe it should not be regarded as a purely technical matter, as it is more than that. The recommendations in our Report have been carefully framed in order to try to minimize ambiguity, but some recommendations have been left reasonably open in order to allow some flexibility as to the exact terms of the provisions which are to be incorporated in the Draft Constitution.
27. We deliberately left some recommendations open in this way on the basis that we felt we should not close off all the options which members of the House might wish to consider in relation to certain aspects of the Constitution. The Committee considers that in any event it is essential that there be a Select Committee of the House to act as a consultative body to which the Legislative Counsel could refer both for clarification of the intention with which certain recommendations were made, and for possible review of some recommendations in light of new circumstances or technical difficulties seen from the draftsman's point of view.
28. A further role which we envisage this Select Committee performing is in relation to whether or not particular recommendations which have been put forward by us for inclusion in the Constitution might possibly be incorporated in ordinary legislation rather than in the Constitution itself. Since the Committee's Draft Report was tabled in June, there has been a good deal of controversy over the question of how much should be included in the Constitution, and we appreciate that genuinely held differences of view concerning this question are inevitable. In our belief it is far more likely that reasonable compromise agreements in relation to this aspect of our recommendations will be reached in a committee room than is possible in the chamber of the House of Assembly.
29. To leave to Cabinet the authority for giving drafting instructions to the Legislative Counsel, as if the Draft Constitution were an ordinary piece of legislation would, we believe, be an abdication by the House of Assembly of its responsibilities to our people as the duly elected national parliament. We consider that it is essential that all of the main political groups in the House as well as a wide cross-section of representatives from different parts of the country, should be included in the Select Committee, as the Constitution should be a document which is prepared on the basis of as much consensus as possible. Such consensus can only be achieved through the full participation - a fundamental democratic principle which underlies many of our recommendations - of representatives of opinion on both sides of the House.
30. We have proposed in Recommendation 107 of Chapter 10, "Provincial Government", that a Follow-up Committee be established to oversee the implementation of Provincial Government. The composition of that Committee should, we believe, be essentially the same as that which we envisage for this consultative Select Committee. Especially as our recommendations on Provincial Government form a substantial part of our recommendations as a whole, and the drafting of the sections of the Constitution concerning this subject (including the schedule setting out the division of powers and functions as between the National Government and the Provincial Governments) is, in our view, so crucial to the success of these new middle-level governments, we think there is a very strong case in favour of giving a single committee these dual responsibilities.
31. We have recommended that the Select Committee should have an even number of members, that is six or eight, to try to emphasize the need for consensus to be actively sought rather than having one group or another seeking to use a built-in majority to decide most issues by sheer weight of numbers.
32. Our proposal is that half of the members of the committee be former members of the Constitutional Planning Committee, as our members naturally have a sound knowledge of the proposed constitutional provisions and of the intention which lies behind them. As to the other half of the membership of the committee, we have left that entirely open. Thus the House might decide that one or more Ministers should be on the Committee. For ourselves, we would prefer to see at least one Minister on the Committee in the hope that a greater degree of consensus as between Ministers and back-benchers will be achieved than might otherwise be the case.
33. This Select Committee would complete its consultative work in relation to the preparation of the Draft Constitution when the Draft Constitution is presented to the Constituent Assembly. However, it would continue its function as the Follow-up Committee in relation to the establishment of Provincial Government until the Permanent Parliamentary Committees are established, and the First Parliamentary Committee takes over this work.
Constitution to be "home-grown"
1. Our Independence Constitution should owe nothing for its validity to an Australian, English or any other foreign law. The ultimate authority for the validity of our Constitution should be the citizens of Papua New Guinea, acting through their elected representatives.
2. (1) The Papua New Guinea House of Assembly shall convene on a date fixed by the Speaker on the advice of the Executive Council, and resolve to adjourn and reconvene as a Constituent Assembly under the chairmanship of a person to be elected by the Constituent Assembly.
(2) The Constituent Assembly shall consider the Draft Constitution, adopt it (with or without amendment) and establish the Constitution of the Independent State of Papua New Guinea, which shall come into force on Independence Day.
3. (1) The Papua New Guinea Government should request the Australian Government to introduce into the Australian Parliament a Bill for an Act which would come into force immediately before the expiration of the day before Independence Day and provide for a number of matters concerning Papua New Guinea on and from Papua New Guinea's Independence Day.
(2) That Australian Act should provide that on and from Independence Day -
(a) the Independent State of Papua New Guinea is recognized and acknowledged as a sovereign Independent State;
(b) the Papua New Guinea Act 1949-1973 is repealed; and
(c) Australia ceases to have and shall not exercise any powers of legislation, administration or jurisdiction in or over the Independent State of Papua New Guinea.
(3) The Australian Act should provide further that -
(a) all Acts that extend to Papua New Guinea or a part of Papua New Guinea as a dependency of Australia cease to apply; and
(b) all Acts and laws of England or the United Kingdom applying to Papua New Guinea or a part of Papua New Guinea -
(i) of their own force;
(ii) as laws of Australia; or
(iii) under a law of Australia
are repealed in their application to Papua New Guinea.
(4) The Australian Act should recognize and acknowledge the Constitution adopted and established by the Constituent Assembly referred to in Recommendation 2 above as the sole Constitution of the Independent State of Papua New Guinea as at Independence Day.
4. (1) As its last action, the House of Assembly should repeal all laws which are within its power to repeal, to take effect immediately before the expiration of the last day before Independence Day.
(2) Subject to the Constitution, all laws existing in Papua New Guinea immediately prior to Independence Day shall be adopted by the Constitution,
provided that all those laws which are inconsistent with the Constitution shall cease to be valid at the expiration of two years from Independence Day, or at the expiration of such further period or until such date as is fixed by resolution of the House of Assembly.
5. The following shall be the preamble to our home-grown Constitution -
Through the All just God,
WE, THE PEOPLE OF PAPUA NEW GUINEA,
THROUGH our duly elected representatives,
HAVING DECLARED, that
PAPUA NEW GUINEA is an Independent State,
BASED on the principles of Christianity,
and our worthy customs and values;
AND IN WHICH:
§ all power belongs to the people;
§ national integrity and self-respect are unfettered;
§ the rich diversity of our cultures and our ancient wisdoms are nurtured;
§ wealth, derived honestly, through intelligence hard work is equitably shared;
§ consensual, non violent solutions are arrived at to our common challenges;
§ respect for the dignity of the person; and
§ communal interdependence are fostered;
AND since our Constituent Assembly representing the people of Papua New Guinea has resolved to frame a Constitution for the Independent State of Papua New Guinea;
NOW, HEREBY, WE THE PEOPLE OF PAPUA NEW GUINEA
THROUGH our Constituent Assembly
on this day of 197
DO HEREBY ADOPT, ESTABLISH and GIVE to ourselves this Constitution.
6. Papua New Guinea shall be known as the Independent State of Papua New Guinea.
7. The flag for the Independent State of Papua New Guinea shall be the flag scheduled to the National Identity Ordinance 1971.
8. The Papua New Guinea National Emblem shall be the emblem scheduled to the National Identity Ordinance 1971.
9. The Papua New Guinea National Motto shall be as determined by the National Parliament.
10. Papua New Guinea has full permanent sovereignty over all its natural resources and economic activities.
11. No person who is not a citizen of Papua New Guinea is entitled to own land in Papua New Guinea.
12. (1) The new constitutional offices and institutions recommended in this Report should be established; and appointments made to them promptly to enable the work of those offices and institutions to be carried out by them as soon as possible.
(2) Where it is impracticable prior to Constitution Day to pass and bring into force legislation making detailed provision for the structure powers and functions of any proposed constitutional office-holder or institution, administrative arrangements should be made to the extent which is legally possible to enable that office or institution to be established and its work commenced.
(3) Existing offices and institutions which, under recommendations in this Report, are to be entrenched in the Constitution, should under the Constitution continue to function as at present except to the extent that there are recommendations in this Report proposing specific changes in the structure, powers or functions of any such office or institution, in which case the proposed changes should, as far as possible, be implemented by administrative changes pending the bringing into force of any legislation which may be required.
13. (1) In order to ensure that our Parliament, the House of Assembly, is fully involved in the drafting stage of the preparation of the Constitution through representatives of the House as a whole, the committee charged with the responsibility of assisting in the implementation of the Constitutional Planning Committee's recommendations for the establishment of provincial government should have the additional responsibility of assisting the Legislative Counsel in relation to the drafting of the Draft Constitution, on a consultative basis.
(2) The committee to be established in accordance with Clause 1 above should be a Select Committee of the House of Assembly.
(3) In addition to the criteria laid down in Recommendation 107 of Chapter 10 for choosing the members of the "Follow up Committee" proposed in that recommendation, the following criteria should apply to the composition of the Select Committee proposed in this recommendation -
(a) there should be, as far as possible, representation of the various areas of the country; and
(b) half of the members of the Select Committee should be former members of the Constitutional Planning Committee.
(4) This Select Committee would complete its work as a consultative body in relation to the preparation of the Draft Constitution on the day when that Draft Constitution is presented to the Constituent Assembly. It would complete its work in relation to the establishment of provincial government when the Permanent Parliamentary Committees recommended in Chapter 6 "The Legislature" are established.
In working towards the decisions which we have made we have been given great encouragement and support by the many thousands of people who have been involved directly or indirectly, in our substantial task, which has taken us twenty two months to complete.
We wish to express our sincere thanks to all who have helped us by putting forward their views at public meetings, in written submissions, and in private discussions with our staff or with us at our invitation. The Committee also thanks the Members of the House of Assembly and Cabinet Ministers who, in the later stages of our work, made constructive comments on our draft chapters. We have taken these comments fully into account in drafting our Final Report.
The Committee has appreciated, also, the contribution by way of advice and comments which we have received from many officers of government departments, including Members of the Public Service Board.
We are grateful to all who have been involved in the work of the Discussion Groups, especially the chairmen (and chairwomen) and other members of those Groups; the advisers, writers and reporters who have given freely of their time and made considerable effort to organize meetings and to assist in the discussion of the six Discussion Papers which the Committee released. We also wish to thank those people who voluntarily organized themselves to discuss these Papers. The work of all these people cannot be underestimated. It has meant that the Committee has been in a position to make its recommendations knowing the considered views of a broad cross-section of representatives of our people. This has made the task of making what might otherwise have been extremely difficult decisions, significantly easier.
The Committee records its appreciation of the assistance given us by the officers of the Political Development Division and Government Liaison Branch of the Department of the Chief Minister and Development Administration and by the District Liaison Committees who have co-ordinated the work of the Discussion Groups and produced and disseminated the Committee's Discussion Papers.
For their co-operation and assistance we express our thanks to the various churches, local government councils, tertiary institutions and sporting clubs who provided venues for the public meetings which we held throughout the country. We also thank the District Commissioners, other officers of the Division of Development Administration, teachers, other public servants and private individuals who have been involved in the work of the Committee in various ways.
During our tour of the country we greatly appreciated the hospitality shown us by the public servants, people in private enterprise, women's clubs and the village people. Our thanks go to all of these people and organizations.
The Committee wishes to thank, also, the House of Assembly reporters who recorded many of its meetings in Port Moresby.
Special mention should be made of the work of members of the Task Force chaired by Mr Wal Cawthorne of the Chief Minister's Department, which was established late last year to consider and make recommendations to Cabinet concerning the division of powers and functions between the national government and the proposed provincial governments.
We also thank those officers of the Division of Development Administration who carried out the painstaking task of proof reading both our Draft Report and the Final Report.
We have greatly appreciated the work of the people who have spent long hours translating summaries of our recommendations into Hiri Motu and Pisin. In particular we wish to thank Mr Paul Bloomfield and Mr Ron Lean and those officers attending various training courses at the Administrative College who were involved in the translation work. Their efforts have meant that the great number of Papua New Guineans who read Motu or Pisin but not English will be able to read and give consideration to our recommendations.
Our thanks go to the mass media - the press and radio. They gave our work a wide coverage and kept us well informed of the reactions and responses of their readers and listeners.
We wish to record our sincere appreciation of the assistance given us by the Commonwealth Secretariat in sponsoring three overseas consultants on financial and administrative arrangements and methods of dispute settlement between the national government and the proposed provincial governments. The Secretary-General, Mr Arnold Smith demonstrated a keen interest in the advancement of our country by arranging, at very short notice, for Professors Ronald Watts of Queens University, Ontario, Canada; William Tordoff of Manchester University, Manchester, England, and Yash Ghai of the University of Uppsala, Sweden (to whom we make fuller reference below) to visit Port Moresby in March 1974 to give us their advice. We very much appreciated the advice these three consultants gave us at our meetings and in various papers which they prepared at our request. In particular, the detailed report on Central-Provincial Government Relations which Professors Watts and Tordoff made in April this year was a valuable contribution to our work on provincial government.
We were fortunate to have been able to draw upon the advice and experience of a number of other visiting specialist consultants: Mr Roland Brown, Fellow International Legal Centre, United Nations, New York; Mr Justice Cross, Justice of the High Court of Tanzania; Mr Justice Telford Georges, Justice of the High Court and Deputy Chairman of the Constitutional Commission of Trinidad and Tobago; and Mr Nigel Oram, Fellow at the University of Papua New Guinea.
The Committee wishes to express its sincere appreciation of the work of Professor Yash Ghai who spent, in all a total of two months with us, journeying to Port Moresby firstly from New York, USA, and later from Uppsala, Sweden. He has given us very considerable assistance in most of the major aspects of our work, not only whilst he was here in Papua New Guinea but also whilst he was at home.
In conclusion, we wish to express our heartfelt thanks to the permanent consultants and staff of the Committee who have often worked long hours including evenings and weekends, and carried out their tasks tirelessly: Mrs Vivienne Curren, Miss Klara Diggelann, Mrs Felicia Zahara, Miss Mary Duggan, Miss Gail Bullock, Mrs Veronica Beaton, Mrs Diana Killian, stenographers and typists; Mrs Jennifer Haynes, Assistant to the Executive Officer; Mr John Girimai who duplicated, photostated and collated countless sheets of paper for the Committee; Professor Jim Davidson (deceased April 1973); Mr Bernard Narokobi, Dr David Stone, Mr Edward Wolfers, consultants: Mr John Ley, Legal Officer and Mr Seaea Avosa, Executive Officer. Their work has always been of a very high standard and their support in our task invaluable. To them we owe a debt of gratitude which we can never fully repay.
* * *
M T SOMARE J L MOMIS
Chairman, ex officio
ANGMAI BILAS MACKENZIE DAUGI
SINAKE GIREGIRE JOHN GUISE
TONI ILA JOHN R KAPUTIN
P L KASAU JOHN KAUPA
J P LANGRO ANTON PARAO
S B TOLIMAN MATIABE YUWI
This Report is signed subject to my
reservations which I intend to express
during the debate on this Report in the
House of Assembly.
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