Once again, the Papua New Guinea Supreme Court has demonstrated its forthright independence by finding against the PNG Government over the legality of the Australian funded Manus asylum seeker detention facility.
In a five to zero ruling, the judges declared that the Manus Island Processing Centre (MIPC) breached the PNG Constitution by depriving people of their personal liberty.
And the judges were highly critical of the way Peter O'Neill's Government handled the case.
Early on in the proceedings, the court ordered the two parties — the Applicant, Belden Namah, who was the PNG opposition leader in 2013 when he filed the case challenging the constitutionality of the Australia-PNG agreement; and the Respondents, Rimbink Pato, the Minister for Foreign Affairs and Immigration, the National Executive Council (PNG's cabinet) and the Independent State of PNG — to agree on a settled Statement of Facts.
However, the Government side never did. This snub obviously annoyed the judges who state that 'the Respondents failed to provide any reasonable explanation for their failure'.
The judges then quote from an earlier case in which one side ignored a similar court order where a judge had said that:
'. . . disobeying a court order is not a simple technical matter, because in not obeying and complying with the order a party is in effect expressing or displaying a contemptuous attitude or behavior to the court. Such a behavior cannot and will not be tolerated . . . The court's orders must mean something and if a party fails to comply with the court's orders then he or she does so on his or her own peril.'
Mr O'Neill's Government did try to amend the PNG Constitution in 2014, after this case originally began. But, the judges say, it then failed to pass any Act of Parliament to give effect to that constitutional amendment.
PNG's Migration Act is of no help whatsoever to the PNG Government in relation to the detention of the asylum seekers.
Under Section 13, the power to detain and remove persons from the country, the asylum seekers all get exempted because the Minister 'issued permits for each of the asylum seekers to enter PNG.'
'Naturally it follows,' the judges say, 'that the forceful bringing into and detention of the asylum seekers on MIPC is unconstitutional and therefore illegal.'
In examining that 2014 constitutional amendment the judges refer to another section of the constitution that requires any law in PNG to 'be reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind'.
They conclude that 'it is clear the 2014 Amendment was inserted without any proper consideration or thought . . . In the absence of any other law restricting or qualifying the rights of a person lawfully in the country, the rights and freedoms guaranteed by the Constitution must be respected.'
The judges refer to the fact that the UN High Commissioner for Refugees has issued guidelines on the 'Applicable Criteria and Standards in relation to the detention of Asylum Seekers and Alternatives to Detention'.
They say the Manus center does not meet these guidelines.
However, they suggest that 'it is open for PNG to make and enforce laws with its own set of guidelines under an appropriate legal framework that has due regard to the international and Constitutional guarantees and protection for human beings' rights and freedoms with capacity to properly treat refugees and assess their claims.'
The judges say that in the absence of such an act there is a lack of clarity about how to deal with the asylum seekers.
'The lack of clarity is worse,' they say, 'given that the asylum seekers were brought into PNG against their will but otherwise have entered and remain lawfully in the country.'
Therefore, the 2014 Constitutional Amendment is 'ineffective' and 'it does not and cannot apply to the asylum seekers at the MIPC.'
The asylum seeker deal between Canberra and Port Moresby has never been a popular one in Papua New Guinea despite the extra aid money involved. Many Papua New Guineans would be happy to see this 'Australian problem' removed from Manus.
Photo courtesy of Flickr user Greens MPs.