Published daily by the Lowy Institute

Supreme Court ruling shows PNG needs new asylum seeker laws

Supreme Court ruling shows PNG needs new asylum seeker laws
Published 3 May 2016 

It is timely to consider the legal implications of last week's ruling by the  Supreme Court of Papua New Guinea which held the detention of asylum seekers at Manus Island Processing Centre (MIPC) breached their constitutional rights to personal liberty and freedom.

The Supreme Court also found that the purported Constitutional Amendment to legalise the detention of asylum seekers was invalid and of no force and effect, and ordered that:

both the Australian and PNG governments take all steps necessary to cease and prevent the continued unconstitutional and illegal detention of the asylum seekers or transferees constitutional and human rights.

So what are the legal implications of this ruling?

1. Compliance with Supreme Court order

The Australian government may argue that it is not a party to the proceeding, and therefore should not be subject to the court orders made. This situation can be remedied by an application to join the Australian government as a party to this proceeding. If such an application is made and granted, specific orders may be sought outlining what steps need to be taken by the Australian government to end the ongoing illegal detention of the asylum seekers.

Although no timeframe was set by the Supreme Court for these orders to be complied with, the PNG Government has already started to take the steps necessary to end the illegal detention. Last week PNG Prime Minister Peter O’Neill said the centre would be closed and released a statement that said his government would immediately ask the Australian government to make alternative arrangements for the asylum seekers. While the Australian Government has suggested the PNG Court decision is not binding on Australia, it has also indicated would provide assistance to resolve the situation. 

Given the serious nature of the matter, and taking into account the initial procedural delay by the State in settling the agreed and disputed facts, any  delay in resolving the illegality may attract the wrath of the Supreme Court.

2. Reinforced that constitutional amendments should not be made on a whim 

One of the first things PNG law students learn is that the PNG Constitution is the mama law (mother of all laws), because it is the foundation upon which all other laws are built. It should not be amended on a whim.

In contrast, however, the majority of Papua New Guineans fail to appreciate the importance of this document. Therefore, when proposed constitutional laws are rushed through parliament without proper debate or public consultation, it is only the knowledgeable few who take issue and try to rally the masses to protest and question the proposed amendments.

How then do we keep our government accountable, when so many do not understand enough about their constitutional rights and the parliamentary process?

At present, it is our judiciary which has continued to act independently, and kept the other arms of government accountable. This decision serves as an important reminder that the judiciary will continue to uphold the PNG Constitution, and will not bow to external pressure to legitimise rushed, illegal arrangements made by parliament. 

Drawing from a healthy body of PNG case law on constitutional amendments, the Supreme Court was able to summarise the criteria that needs to be met for a law that purports to regulate or restrict a qualified right under the Constitution to be valid.

In this case, the 2014 Constitutional Amendment failed to meet the full criteria set out under s.38 of the constitution. The amendment failed to specify the purpose of the amendment and the rights it purported to restrict, and failed to state that the restriction was 'reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind', as the constitution requires.

It is now imperative that the knowledgeable few, which may include civil society, legal professionals, and political experts, create avenues to communicate the importance of this decision to every Papua New Guinean and advocate that they also have a major role to play in keeping their government accountable. 

3. Opportunity for legal reform in PNG 

It seems obvious from the Supreme Court’s judgment that PNG has insufficient legal framework in place to address the treatment of refugees seeking asylum. [fold]  Having identified these deficiencies in domestic legislation, and depending on PNG’s political relationship with the Australian government, two scenarios could follow:

i.  Short term: The PNG Government could quickly draft up new laws, and remedy the flaws highlighted in the decision that rendered the asylum seeker arrangement unconstitutional.

ii. Long term: The PNG Government may take the view that this is an opportunity to consult all stakeholders, and develop a considered policy to address how refugees seeking asylum are treated during detention and processing in the future, and then draft and enact the appropriate legislation to give effect to the rights and freedoms guaranteed under international conventions and the PNG Constitution.

The PNG judiciary and legal profession have gone through some challenging times in the past few years, so this well-considered landmark decision was a welcome event. We should all stand and applaud the ruling of the Supreme Court and its fearless defense of our constitution and the human rights enshrined in it.  Let us hope that our nearest neighbors will respect PNG’s sovereignty and abide by the decision handed down by the highest court in our land.  

Photo: Recep Sakar/Anadolu Agency/Getty Images

You may also be interested in