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Papua New Guinea Doctrine of Separation of Powers

Mek H. Kamongmenan is a senior tutor of law at the School of Law, University of Papua New Guinea, and a lawyer.


The three arms of Government

The doctrine of Separation of powers, is a democratic principle which divides a democratic government, order separate the three core divisions to limit any one branch from exercising the core functions of another. The main intent is to prevent the concentration of power on one or more either than three different, namely: Executive, Legislative and Judiciary and also to provide for checks and balances for effective and efficient governance.

We are the people of Papua New Guinea are so privileged to enjoy such a democratic type of government that we have here in this country, which was adopted from the Westminister model of government of England, by 16 September 1975 when our country took Independence from former colonizer-Australia..

It is such a traditional that there is separate of power, basically the three arms of the government in PNG context, our Constitution provides for the three arm of the government.

The structure of Government is provided under Section 99 of the Constitution of Papua New Guinea, as I per quoted for easy reference:

“(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the people shall be exercised by the National Government.

The National Government consists of the three principle arm, namely:-

(a) The National Parliament, which is an elective legislature with, subject to the Constitutional laws, unlimited powers of law-making, and

(b) The National Executive; and

(c) The National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.

(1) In principle, the respective powers and functions of the three arms shall be kept separate from each other.

(2) Subsection (2) is descriptive only and is non-justiciable”.

A the separation of power of the government is vested in the three arms of the government according to the Constitutional provision of Section 99 of Constitution of Papua New Guinea, in line with the adopted Westminister Model of democracy of England. Each of the three arms of discussed and explained in detail as follows:

[A] National Parliament

The powers and functions of National Parliament are specifically set out in the Constitution and other Legislation such as the Parliamentary Powers and Privileges Act 1996, the Parliamentary Service Act, the Parliamentary Committees Act 1994 and the Organic Law on National and Local-Level-Elections 1996.

The basic functions of the National Parliament are as the constituent power, legislative power, control of government expenditure and revenue-raising; and ensuring accountability of the executive.

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The optimistic vision of Constitutional Planning Committee [CPC) for an expansive role for the legislature can be seen in the following passage:

“If government is to be truly responsive to the people, it is vital that those whom the people elect to represent them should be able to contribute actively to the government of the nation. The legislature should not be seen as a rival to the executive arm, but rather as a full and constructive partner. It can then help to ensure the overall effectiveness of government by keeping the executive accountable to the people”.

The legislative powers vested in the National Parliament by the virtue of Section 100 of the Constitution, as well as Section 109. In addition, the National Parliament plays other vital roles as per provided under various provisions of the constitution and relevant legislations.

[B] The Executive arm of the government.

The executive under the Constitution is the offspring of the British parliamentary system, which evolved over 250 to 300 years ago[1].

This is second arm of the government which is provided under the Constitution and it is responsible for carrying out of policy and applying the principle and rules of law to cases the executive can also mean the total government bureaucracy, the politically responsible officials who direct it and the chief of the State[2]. The NEC is established by S 149 of the Constitution. The NEC of the Cabinet is made up of all the ministers, and the Prime Minister who is the Chairman of the NEC. Section 141 prohibits any person from being appointed as a member unless he or she is a member of the parliament.

In the influence of the NEC on the government, Goldring said:

“Real executive power would formally and in fact be vested in the national Executive Council or Cabinet, which would be representative of and responsible to parliament, which as the representative of the people, has final control”.

The National Executive Council performs a number of functions, and following are the basically some of them:

-executing the laws,

-policy formation (including formation of proposed legislation for submission to the legislature,

-supervision of the bureaucracy and the services it provides,

-initiation of revenues-raising and expenditure proposals

-making delegation legislation,

Maintenance of public order, exercising powers of mercy, management of government of government property, conduct of military operations;

-conduct of international affairs; and

-dealing with emergencies.

Duchacek’s view on the role of constitutions in relation to the executive is in the Constitution of Papua New Guinea. Duchacek stated:

“Most constitutions determine and describe the form and structure of the national executive and its relationship to national legislature and its relationship to national legislatures according one of two basic of two models:

(1) A cabinet system is which the executive issues from the legislature and, in principle, remains linked with and responsible to it.

(2) A presidential system in which the national executive and the national legislature are given separate mandates of power by the people and remains separately accountable to the people”.

Since independence, the National Executive Council of Papua New Guinea has become more powerful, and has expanded its scope of operations and membership. The Judiciary refines and clarifies the role of the executive in the development. Since PNG is a developing country, it has faced a number of serious challenges, became up with positive developments

Section 138 of the Constitution declares that the executive power of the people is vested in the Head of State acting in accordance with the advice of the NEC. Section 139 clarifies that the NEC consists of the Head of State and the NEC the position of the Head of State in this relationship was described as “a rubber stamp” by the Kidu CJ said (at 116):

“As has been pointed out under Section 86(2) of the Constitution the Head of State acts solely on the advice of NEC or other designed by written law. He or she does not determine anything. He or she merely affixes his or her signature to documents approved by the NEC or a body designated by written law. The Head of State has no personal power. He or she is only figurehead-a “rubber stamp” is not inappropriate description of the nature of his or her function”.

By this we can rightly state the NEC is in control of government machinery.

[C] The Judiciary Arm

The third arm of the government is the Judiciary which in the view of the Constitutional Planning Committee (CPC), that it would occupy a vital position in the new state of Papua New Guinea. It is the third pillar of the government and the custodian of the Constitution.

Many traditional roles of judiciary, such as: keeping the peace, deciding controversies; judicial law-making; review of constitutionality of laws of laws and actions of executive and any other institutions and persons; enforcement of human rights, review of administrative actions on the grounds other than the constitutional grounds ; procedural rule-making; and enforcement of judicial decisions, have been given constitutional status in PNG, unlike other common law jurisdiction[3].

It has been stated that:

“the courts are the instruments and guardians of the national legal system. They protect the citizens against unlawful practices and in some countries, protect the Constitution itself against alterations by unconstitutional laws, and executive orders or acts”[4].

The National Judicial System consists of the Supreme Court and the National Court, which are the superior courts, and the District Courts and the village Courts, which are the lowest Courts. The Supreme Court is established by Section 160 of the Constitution, and the National Court is created is created under Section 172, and are created by the specific Acts of Parliament.

In PNG, the jurisdictions of the Supreme Court and National Court are set out in SS 99(2), 155(2) and 160 (2) of the Constitution. The Supreme Court and the National Court have “unlimited jurisdiction” (S99 (2) (c)), the Constitution that they have no limits to the cases and to the general subject matter of disputes that can come before them

The main functions of the judicial system are to safeguard the Constitution and interpretation laws of the law for the purpose of peace and order in the country.

The doctrine of separation of power is the character of the Westminister of Democracy which adopted from England is part of the Parliamentary system of government in Papua New Guinea. These three arms of government do operate and function separately to accomplish the duties and responsibilities vested on them respectively as to the constitutional provisions that empower.

[1](Kwa, (2001), “The Constitutional Law of Papua New Guinea”,p82.

[2] Gould and Kolb (eds), A dictionary of the Social Sciences (Tavistock Publications, UNESCO, 1964), P.249.

[3] Regan, “Constitutionalism, Legitimacy and Judiciary” in James and Fraser (eds), Legal Issues in a Development Society, (UPNG, Faculty of Law, Port Moresby, (1992), p28

[4] Dunchacek, Power Maps, Comparative Policies of Constitutions (American Biographical Press Inc, Santa Barbara, 1973),p 214.


Mary Norton from Ontario, Canada on February 20, 2018:

I love your focus on PNG as I know very little about it. As in the case of other countries, the practice is the most important. The key is an independent judiciary.

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