Marape's COVID-19 NEC decision and the Constitution

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The confusion now for me is in regards to what the Constitution says about the declaration of national emergencies in comparison to the steps taken by the Marape-Davis Government yesterday (22/3/2020). My discussion about the Constitution in this article is from a political point of view, it will be good to hear or read legal opinions of lawyers about the matter.

Section 228(1) of the Constitution states that if the National Executive (NEC) is of the opinion that an emergency exists or is about to come into being then the Head of State (Governor General) in accordance with advice of the NEC may publicly declare the existence of a national emergency in relation to the whole or part of the country. Section 228(2) states that unless it is impracticable to do so, the declaration under Subsection (1) shall be made in relation to part of the country only prior to consultation with the Emergency Committee. 

The official statement from the Office of the Prime Minister released yesterday (22/3/2020) said that based on the advice from the COVID-19 National Operation Center (Emergency Committee) and the National Security Council (NSC), the NEC in an emergency meeting decided on the following measures outlined in the 18 points. Point 3 talks about the declaration of a State of Emergency for 14 days on Tuesday March 24, the Commissioner of Police will assume control assisted by a call out placed on military to ensure lawful order, control and response to SOE control measures. 

The following are my concerns:
  1. The official statement in relation to the Constitutional provision in Section 228 does not make the point that the Head of State should or will make the public declaration.
  2. Should or will the Head of State publicly declare a state of emergency before the 18 points are announced or implemented fully on Tuesday 24 March.
  3. Section 230 talks about an Emergency Act. For this particular emergency, before or during the period of the declared national emergency, the Parliament needs to meet to pass an Emergency Act.
  4. The 18 points, except for Point 3, in relation to Section 231(1) can be referred to as Emergency Regulations. If we are to implement the 17 points by Tuesday 24 March then when will Parliament meet for the Speaker to present the Emergency Regulations.
  5. The 18 points also contain some emergency orders in reference to Section 232, all these orders must now be immediately forwarded to the Speaker for presentation to the Parliament.
In a Westminster system of government and in accordance to Section 82 of the Constitution, the Queen of the United Kingdom of Great Britain is the Head of State. She is represented by the Governor-General who takes precedence in rank over all other persons in PNG as per Section 84. Furthermore, the Head of State's function is dependent on the advise given by the NEC. Therefore, the Constitution is clear that the declaration of a State of Emergency must be done by the Head of State.

Also, the Constitution is clear in stating that the SOE process must be bipartisan. The emergency measures taken by the NEC must firstly begin with an act of parliament to make provisions for dealing with the emergency and matters arising from it. This has not taken place in order to constitutionally empower the Police Commission as SOE controller. 

To conclude, the process in which the NEC followed before the Office of the Prime Minister made the official statement yesterday is not aligned well with the Constitution from my point of view. I stand to be corrected if there are other sections that I did not consult to understand the action of the Marape-Davis Government, or any past precedent set by former Prime Ministers and their NECs.

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