Right to liberty, unconstitutional constitutional amendments, and foreign judges in PNG

Anna Dziedzic

Melbourne Law School, Australia

On 26 April 2016, the Supreme Court of Papua New Guinea held that the detention of asylum seekers transferred by Australia to Manus Island, PNG, was contrary to their right to personal liberty under PNG’s Constitution. The decision clearly has political and legal ramifications for Australia’s policies on asylum seekers, under which asylum seekers who arrive in Australia by boat are detained, and potentially resettled, in Papua New Guinea and Nauru (see further discussion, eg here and here). The focus of my analysis, however, is what the judgment says about constitutional law in PNG and what it contributes to current discussions in comparative constitutional law.

The Court’s decision in Namah v Pato SCA 84/2013

While all five judges agreed on the result, only two judges gave reasons for decision: Justice Kandakasi, a Papua New Guinean judge, and Justice Higgins, a retired judge from Australia now serving on the PNG Supreme Court.

Section 42 of the PNG Constitution protects the right to personal liberty. This section also sets out a number of exceptions, listing circumstances in which the deprivation of liberty might be justified.  Two exceptions were relevant to this case.

The first was s 42(1)(g) which permits detention for the purpose of preventing the unlawful entry of a person into PNG or for effecting their removal from PNG. The Court held that since the asylum seekers were only in PNG because of the arrangements with Australia, and because the PNG Minister had issued the asylum seekers with special entry permits, they were not unlawfully in PNG.  As such, the detention did not fall within this exception.

The second exception was s 42(1)(ga),which authorised detention for ‘the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organisation that the Minister responsible for immigration, in his absolute discretion, approves’.  This exception was added to the Constitution in 2014 by way of constitutional amendment and was clearly intended to support the arrangements made with Australia for the detention of asylum seekers.

Both judges held that this constitutional amendment was invalid. Section 38 of the Constitution permits the parliament to make a law that regulates or restricts rights, but also sets out substantive and procedural limits on this power. Substantively, the parliament may make laws that restrict rights only to the extent that the regulation is necessary to give effect to specified public interests or to protect the rights of others. Further, the law must be ‘reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind’. Procedurally, a law that regulates or restricts rights must be expressed to be a law made for that purpose and must specify the right or freedom it regulates or restricts. Both judges held that the 2014 law to amend the Constitution to insert the new exception met neither the procedural nor the substantive constitutional requirements and as such was invalid.

The judges further held that the exceptions do not in themselves operate to permit restrictions on liberty. Rather, there must be legislation to give meaning and effect to the exceptions listed in s 42. Without such legislation, the exceptions have no force.

Unconstitutional constitutional amendments in PNG

This case is an example of unconstitutional constitutional amendment, which is a feature of many constitutional systems (For a survey see Roznai, ‘Unconstitutional Constitutional Amendments: The Migration of a Constitutional Idea’.) What is striking about the Namah v Pato decision is that it is a very text-based example of unconstitutional constitutional amendment. Section 13 of the PNG Constitution provides that the Constitution may be altered by a law passed by a two-thirds majority in the parliament following certain procedural requirements. All these procedures were met in Namah v Pato. However, a law to amend the Constitution is also a law to which s 38 applies, such that if the amendment law restricts or regulates rights, it must meet the procedural and substantive requirements prescribed in s 38, as outlined above. In other instances, the PNG Parliament has framed laws to meet the procedural requirements of s 38 when passing a constitutional amendment that restricts rights (see eg, Constitutional Amendment No. 41 (Motions of No Confidence) Law 2013 at issue in Namah v O’Neill discussed below).

This is not the first time that the PNG Supreme Court has held that a constitutional amendment is unconstitutional.

The OLIPPAC case of 2010 concerned constitutional amendments which authorised parliament to make a law to regulate political parties. This law sought to prevent party hopping by restricting MPs from voting against their party on important votes, such as the budget or no confidence votes. The applicant attacked both the constitutionality of the law and the constitutional amendment authorising it. In this case, the Supreme Court upheld the amendment, but read it down using an argument based on the rights limitation provision in s 38 of the Constitution. It held that while the Constitution could authorise an amendment and a law which regulated the exercise of a constitutionally protected right, it could not prohibit the exercise of that right altogether. In the OLIPPAC case, the Court strongly dismissed any idea that the ‘basic structure doctrine’ might apply in PNG. The basic structure doctrine was first developed in Indian constitutional law and prevents the parliament from amending the Constitution to alter basic or fundamental features of the Constitution. The Supreme Court held that there are ample provisions in the PNG Constitution to guide its interpretation, and the Court should not rely on ‘foreign political theories and ideologies’ to test the validity of constitutional amendments (para 109).

In the ground-breaking case of Namah v O’Neill, the Supreme Court declared that constitutional amendments which placed heavy restrictions on no confidence votes were unconstitutional. In this case, the Court’s language seemed more open to basic structure type claims. The judges said that the amendments were inconsistent with the purposes of the original constitutional provisions for no confidence votes as adopted by the constitution’s founding fathers and were ‘clearly inconsistent with the spirit and purpose of Constitution’ (para 99). However, the Court still favoured text-based constitutional interpretation, stating the rule that where a constitutional amendment is inconsistent with the purpose of an existing provision, the amendment must give way to the existing provision (para 79).

Namah v Pato seems to represent a return to the kinds of arguments made in the OLIPPAC case, which assess the validity of constitutional amendments using the provisions of s 38 of the Constitution, and the Supreme Court seems very comfortable with this kind of analysis and its effect.

Foreign judges and foreign citations

This case is also significant for comparative purposes because one of the two judges who wrote reasons, is Australian. Following his retirement as Chief Justice of the Supreme Court of the Australian Capital Territory, Justice Higgins was appointed a judge of the PNG Court in March 2015.

The practice of appointing foreign judges to a state’s highest court is unusual in global practice, but prevalent in the Pacific region. The reason usually given is that small Pacific island states lack sufficient numbers of suitably qualified legal personnel to fill judicial positions. PNG, however, is exceptional among the Pacific Island states, in that local PNG judges significantly outnumber foreign judges (the ratio was 33:6 at the time of Justice Higgins’ appointment). There is also a convention, explained here by another Australian judge sitting in PNG, that foreign judges will not sit on constitutional cases.  Justice Higgins’ presence on this bench represents a departure from this practice.

That Justice Higgins is an Australian creates an interesting dynamic in this case. As noted above, the Court’s decision clearly has implications for Australia’s asylum seeker policies; indeed one of the Court’s orders is expressly directed to the Australian government (para 74). The presence of an Australian judge also has the effect, in this case, of importing Australian law into the decision. Early in his reasons, Justice Higgins cites the Australian High Court case of Plaintiff S4/2014 in support of the principle that any detention must be limited to what is reasonably capable of being seen as necessary and incidental to the purpose of the detention (para 81). His Honour says that this statement of principle is equally applicable to determining the constitutional rights of the asylum seekers on Manus Island (para 89). It is not clear why it was necessary for Justice Higgins to look to Australian caselaw, when he might easily have come to a similar conclusion using the words of s 38 of the Constitution and PNG precedents, as Justice Kandakasi did (para 52).  Section 39 of the PNG Constitution does permit the Court to look to a range of external sources, including foreign judgments, when determining what is ‘reasonably justifiable in a democratic society’.  But this is not what Justice Higgins seems to be doing here.  Rather, he seems to be suggesting an additional requirement to s 38, such that a law that restricts rights is only permissible if it is confined to what is reasonably necessary to achieve the stated purpose of the exception. Blackshield suggests that it may be that this aspect of Justice Higgins’ judgment speaks more to Australia than to PNG. However, given the very different constitutions of Australia and PNG – marked most starkly by the absence of a bill of rights in Australia – and the long-held understanding of PNG’s Constitution as an autochthonous constitution to be interpreted on its own terms and in the context of PNG, it is perhaps unlikely that Australian cases will be quickly taken up by PNG judges in future adjudication on constitutional rights.

Anna Dziedzic, PhD Candidate at Melbourne Law School, Australia. Her research examines the appointment of foreign judges to courts of constitutional jurisdiction in the Pacific.