Comparative constitutional law offers many opportunities to learn new insights and opportunities for future reforms, including for Australian lawyers dulled by a constitutional regime largely devoid of identified human rights.
In stark contrast to Australia’s anemic constitutional regime, the Papua New Guinea (PNG) National Court of Justice recently identified 19 distinct human rights under the PNG Constitution.
The case, Helal Uddin v Solomon Kantha [2020] PGNC 83; N8267 (Cannings J), involved a Bangladeshi man who was transferred from Australia to PNG in 2013 and held at the Manus Island Regional Processing Centre. He had married a PNG citizen and had a child who was a PNG citizen, yet the PNG government proposed to deport him. He applied to the PNG National Court of Justice to stop his removal from PNG.
As the man was not a PNG citizen, Cannings J listed in the following table (and [49] of the judgement) each of the 19 distinct and individual rights in the PNG Constitution and categorised them according to who are the ‘beneficiaries’ or ‘possessors’ of each right: either all persons in PNG or PNG citizens only.
HUMAN RIGHTS IN PAPUA NEW GUINEA
CATEGORISED ACCORDING TO BENEFICIARIES/POSSESSORS
|
No
|
Description
|
Constitution provision
|
Details
|
Beneficiaries/
Possessors |
|
1. |
Right to freedom
|
s 32
|
Every person has the right to freedom based on law and can do anything that does not interfere with others and is not prohibited by law.
|
All persons in PNG
|
|
2. |
Right to life
|
s 35
|
No person shall be intentionally deprived of his or her life except by a court sentence or by reasonable force as permitted by law.
|
All persons in PNG
|
|
3. |
Freedom from inhuman treatment
|
s 36
|
No person shall be submitted to torture or cruel or inhuman treatment.
|
All persons in PNG
|
|
4. |
Protection of the law
|
s 37
|
Every person has the right to the full protection of the law, especially persons charged with offences.
|
All persons in PNG
|
|
5. |
Protection from unlawful acts
|
s 41
|
Any act that is done under a valid law but in the particular case is harsh or oppressive or otherwise proscribed by s 41(1) is an unlawful act.
|
All persons in PNG
|
|
6. |
Right to personal liberty
|
s 42
|
No person shall be deprived of his or her personal liberty except in circumstances permitted by the Constitution. No person can be unlawfully arrested or detained.
|
All persons in PNG
|
|
7. |
Freedom from forced labour
|
ss 43,
253 |
No person shall be required to perform forced labour except in circumstances permitted by the Constitution. Slavey is strictly prohibited.
|
All persons in PNG
|
|
8. |
Freedom from arbitrary search and entry
|
s 44
|
No person shall be subjected to the unreasonable search of his or her person or property or to unreasonable entry of their premises except in circumstances permitted by the Constitution.
|
All persons in PNG
|
|
9. |
Freedom of conscience, thought and religion
|
s 45
|
Every person has the right to freedom of conscience, thought and religion and to practise and propagate their religion and beliefs, subject to the regulation or restriction of these rights in accordance with the Constitution.
|
All persons in PNG
|
|
10. |
Freedom of expression
|
s 46
|
Every person has freedom to hold opinions, to receive ideas and information and to communicate ideas and information and to express and publish their opinions and ideas, subject to the regulation or restriction of these rights in accordance with the Constitution.
|
All persons in PNG
|
|
11. |
Freedom of assembly and association
|
s 47
|
Every person has the right to peacefully assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, subject to the regulation or restriction of these rights in accordance with the Constitution.
|
All persons in PNG
|
|
12. |
Freedom of employment
|
s 48
|
Every person has the right to freedom of choice of employment in any calling for which he or she has the qualifications lawfully required, subject to the regulation or restriction of these rights in accordance with the Constitution.
|
All persons in PNG
|
|
13. |
Right to privacy
|
s 49
|
Every person has the right to reasonable privacy in respect of the private and family life, their communications with other persons and their personal papers and effects, subject to the regulation or restriction of these rights in accordance with the Constitution.
|
All persons in PNG
|
|
14. |
Right to vote and stand for public office
|
s 50
|
Every citizen who is of full capacity and has reached voting age has the right and shall be given a reasonable opportunity to take part in the conduct of public affairs, either directly or through freely chosen representatives and to vote for, and to be elected to, elective public office at genuine, periodic, free elections and to hold public office and to exercise public functions.
|
PNG citizens only
|
|
15. |
Freedom of information
|
s 51
|
Every citizen has the same rights, privileges, obligations, and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
|
PNG citizens only
|
|
16. |
Freedom of movement
|
s 52
|
No citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country; and citizens cannot be expelled or deported except in accordance with the Constitution.
|
PNG citizens only
|
|
17. |
Protection from unjust deprivation of property
|
s 53
|
Possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament that provides just compensation and meets other constitutional requirements.
|
PNG citizens only
|
|
18. |
Right to equality
|
s 55
|
Every citizen has the same rights, privileges, obligations, and duties, irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
|
PNG citizens only
|
|
19. |
Right of enforcement
|
s 57
|
All rights and freedoms are enforceable in the Supreme Court and the National Court.
|
All persons in PNG
|
While many of these rights are familiar from the Universal Declaration of Human Rights and similar human rights conventions, several of PNG’s constitutionally protected human rights, such as s 41, are particularly broad.
Another remarkable feature of PNG’s system is the clear right in s 57 to enforce the rights protected under the constitution in the PNG National Court of Justice.
This is linked to a right in s 58 to seek damages for infringement of other rights (the right to seek damages under s 58 is, arguably, a 20th right that Cannings J should have included in the rights listed in the table).
While dismissing a number of the applicant’s claims of breaches of constitutional rights, Cannings J went on to discuss the “narrow” and “broad” approaches to s 41 (Proscribed acts) at [58]-[67]. His Honour noted, at [60], that:
“Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:
- harsh; or
- oppressive; or
- not warranted by the requirements of the particular circumstances; or
- disproportionate to the requirements of the particular circumstances; or
- not warranted by the requirements of the particular case; or
- disproportionate to the requirements of the particular case; or
- otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.”
Cannings J affirmed his previous application of the broad approach to s 41, which he summarised at [68] as:
- human rights as conferred and defined by the Constitution have universal application, and cannot be said to have no operation in any situation;
- s 41 creates rights, freedoms and protections (and thereby imposes obligations) in the same way as other human rights provisions of Division III.3 of the Constitution;
- s 41(2) provides that the burden of showing a breach of human rights under s 41(1) rests on the person alleging it and may be discharged on the balance of probabilities.
Cannings J went on, at [70]-[71], to find the applicant’s human rights under s 41 had been breached and make orders restraining his removal from PNG as:
“The decisions of the respondents have been made with callous disregard to their impact on not only the applicant but also his wife and his child. Decisions have been made without considering their human toll. This is precisely the sort of situation in which s 41 should be invoked. A breach of the applicant’s right of protection against harsh, oppressive and other proscribed acts under s 41 of the Constitution has been proven.”
This remarkable decision seems to come from a different universe for lawyers, like me, used to working through the narrow lens of the Australian constitution where such broad powers of courts to declare executive action unlawful based on broad human rights are absent.
Dr Chris McGrath
Higgins Chambers
10 September 2020
Postscript – 5 September 2022
The decision discussed in this post was overturned by the Supreme Court (Salika CJ, Murray and Anis JJ) in Independent State of PNG v Helal Uddin [2022] PGSC 109; SC2312, delivered on 31 August 2022.
In particular, the Supreme Court held at [29] that “We adopt and affirm the majority decision in the case of Raz v Matane [1985] PNGLR 329, that section 41 of the Constitution does not confer or create any new rights that are enforceable under section 57 of the Constitution.”
The broad approach taken by Cannings J to section 41 of the Constitution has, therefore, been overruled.