Monday 23 June 2014

Human rights under Papua New Guinea's Constitution - Section 42 and the Manus Island Gulag

Under the heading ‘Liberty of the person’, still under the general heading ‘Rights of All Persons’, section 42(2) of the Constitution of Papua New Guinea requires, so far as is relevant to the circumstances of those detained on Manus Island, that  a person who is arrested or detained ‘be informed promptly, in a language that he understands, of the reasons for his detention’.  

Further it requires that he ‘be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend.’  The circumstances of the Manus Island detainees were such that it would not have been practicable for this requirement to have been met by strict compliance, and it is likely that they would have been allowed to inform family members prior to removal from Christmas Island to Papua New Guinea, and that arrangements would have been made for further contact after their arrival.  However the provision also requires that a detainee ‘be permitted whenever practicable to communicate without delay and in private with a lawyer of his choice’ and ‘shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained’.  

‘Lawyer’ is defined in the Schedule to the Constitution as ‘a person who has been admitted to practice as a lawyer under an Act of the Parliament’.  As recently as March of this year it was reported that an Australian barrister had been ejected from the Manus Island detention centre on the basis that he did not have a practisiing certificate that allowed him to practise in Papua New Guinea.  However, in February 2013 it was reported that a local lawyer acting for the Leader of the Opposition in the Papua New Guinea Parliament was refused entry to the centre, notwithstanding the claim that the the National Court had ordered that his lawyers be given access to the processing centre to talk to asylum seekers, and provide them with legal advice if they wanted it. 

The Immigration Service later claimed that  anyone who wanted to visit the processing centre must submit an application to the Chief Migration Officer ‘for consideration.’  The requirement and the refusal of entry appear to be clear breaches of the Constitution.

Finally the Constitution requires that a detainee ‘be informed immediately on …  detention of his rights under this subsection.’  Failure to comply by the persons responsible for the detention would constitute a further breach, although there would be little purpose in informing a detainee of his rights if the person or body effecting the detention had no intention of giving him the benefit of those rights.

The right of those detained on Manus Island to seek legal redress will be considered in a later post.

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