Monday 23 June 2014

Liberty of the person in Papua New Guinea - Manus Island and the Constitution

#ManusIsland   #PapuaNewGuinea   #Constitution   #righttoliberty  #asylumseekers   #refugees  

Unlike Australia, Papua New Guinea has a Bill of Rights written into its Constitution.  Among those rights is the right to liberty.

Under the heading ‘Rights of All Persons’, section 42, headed ‘Liberty of the person’ provides that no person shall be deprived of his personal liberty except in certain circumstances set out in subsection (1) (a) to (i).  To be lawful under the law of Papua New Guinea the detention of an asylum seeker on Manus Island would have to be capable of being brought within the ambit of one of those sections.  A law that provided for detention that did not fall within one of the sections would be unconstitutional and invalid.  

The only section that would appear to be of any relevance to the detention of asylum seekers on Manus Island would appear to be subsection (g).  It provides that a person may be deprived of his liberty ‘for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes;’.  This breaks down into three separate lawful purposes for detention: 

(1)  ‘to prevent the unlawful entry of a person into Papua New Guinea.’  It is difficult to see how this could apply to asylum seekers brought involuntarily into the country by way of extraordinary rendition, consistently with an agreement by Papua New Guinea to receive them under a formal Memorandum of Understanding with the Commonwealth of Australia as the expelling party.

(2)  ‘to effect the expulsion, extradition or other lawful removal of a person from Papua New Guinea.’  There has been no suggestion that any country has been seeking the extradition of any asylum seeker from Papua New Guinea for the purpose of facing criminal charges in that country.  This disposes of that purpose.  As to expulsion, that is qualified by the words ‘other lawful’, and there has been no claim that the asylum seekers are being detained for the purpose of expulsion, and that there is a lawful basis for that expulsion.  That leaves ‘lawful removal’.  Having accepted their extraordinary rendition to Papua New Guinea by Australia, Papua New Guinea could hardly now claim that the asylum seekers were being held for the purpose of removal.  Removal to where?  Australia has made it clear that it will not take them back.  The terms of the agreement with Australia make it difficult to return any detainee to his or her country of origin.

(3)  ‘for the taking of proceedings for any of those purposes.’  If the current detention cannot be brought within one of the constitutionally approved purposes, it follows that detention in order to take proceedings for an unauthorised purpose can not be justified either.

If a law deprives a person of liberty for a purpose not falling within those set out in the section, the Supreme Court of Papua New Guinea may declare the law to be unconstitutional and invalid.  How this comes about will be the subject of a further post.

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