By Emma Larking
Centre for International Governance and Justice, ANU
Regarding Rights is following a legal challenge to the Manus Island Asylum Seeker Detention Centre with interest (see the report in yesterday’s Australian). The challenge was lodged last month by PNG opposition leader Belden Namah, who claims the Detention Centre, and the Agreement with Australia to establish and run the Centre, breaches the PNG Constitution. Namah’s lawyers, along with commentators in the Australian media, suggest the challenge has strong prospects of success given the PNG constitution provides a protection of individual liberty which is not limited to citizens of the country. I’m not a constitutional lawyer, but according to my reading of the constitution, the situation is somewhat more complicated.
Firstly, section 36 of the constitution provides that
no person shall be submitted to torture…or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.
This is expressed to be a fundamental right and is not subject to qualification.
Secondly, section 42 of the constitution provides protection of individual liberty. While – like section 36 – this right is not limited to citizens of PNG, it may be qualified in accordance with law and for the purpose of giving effect to the public interest – taking into account the National Goals and Directive Principles contained in the Constitution itself (s.38). Any such qualification must be explicitly provided for by law.
The Manus Island Detention Centre was not established in accordance with a law of the PNG parliament specifying that it qualifies the right to liberty of detainees for the purpose of giving effect to the PNG public interest. This clearly leaves the constitutionality of the current arrangements in doubt. From my reading of the constitution, however, it is open to the PNG parliament to pass such a law. Challenging the constitutionality of the current detention arrangements would then depend either on establishing they breach the absolute prohibition in s.36 on torture or inhuman treatment, or that the law qualifying the right to liberty of detainees is invalid. This could be a difficult case to make, given that the ‘National Goals and Directive Principles’ in the light of which such a law would be interpreted recognise that the ‘fundamental rights and freedoms of the individual’ to which all persons in PNG are entitled may be ‘subject to…restrictions imposed by law on non-citizens’ (s.5).
Instead of relying solely on the current constitutional challenge then, asylum seekers and their advocates would be wise to look to the PNG political process. Citizens of PNG need to be convinced that a law which allows people who have sought asylum in Australia to be locked up in their country is not in their interest. Then they need to mobilise against the passage of any such law through their parliament.