Introduction
The
Supreme Court of Papua New Guinea (“SCPNG”)’s
recent decision in Namah v Pato [2016] PGSC 13; SC1497 (“Namah”)
found the detention of asylum seekers (transferred from Australia to Papua New
Guinea [“PNG”]) in a ‘regional
processing centre’ on Manus Island to be ‘unconstitutional and illegal’. (For
an excellent general overview of the decision, see Tony
Blackshield’s post for AUSPUBLAW.)
The
SCPNG was not concerned solely with detention in and of itself (and, in
particular, the fact that such detention lacked statutory authorisation and was
not constitutionally permissible),[1]
but also with the validity of an enactment (the Constitution Amendment (No 37) (Citizenship) Law; “the Amendment”)) purporting to amend
the PNG Constitution. The amended clause in dispute (s42(1)(ga)) authorised the
denial of personal liberty ‘for
the purposes of holding a foreign national under arrangements made by Papua New
Guinea with another country or with an international organisation that the
Minister responsible for immigration matters, in his absolute discretion,
approves’.
In
striking down the amendment (and hence s42(1)(ga)), the SCPNG highlighted the
gulf between India and PNG’s approach to limitations on constitutional
amendments, and provided an intriguing contrast to Kesavananda Bharati and successive Indian jurisprudence. This post is
a brief overview of this aspect of the decision, including by reference to
comparative developments in India.
Constitutional Structure
The
PNG Constitution took effect upon PNG’s independence from Australia in 1975.
This Constitution arguably bears greater resemblance to that of India than of
Australia – as in the Constitution’s provision for ‘National Goals and
Directive Principles’ (encompassing both civil-political and socio-economic
objectives), its constitutional guarantees of fundamental rights and its length
and breadth more generally (consisting at present of over 275 clauses and
multiple schedules, as distinct from Australia’s 128-clause Constitution).
Among the guarantees afforded by the PNG Constitution is ‘liberty of the
person’, not to be deprived except in prescribed circumstances (set out by
s42(1)) and, where deprived, to be accompanied by various procedural rights. Of
the circumstances permitting detention prior to the Amendment, none were found
to apply to the detention of asylum seekers on Manus Island (Namah at [39]).
s38(1)
of the PNG Constitution limits the Parliament’s power to make laws regulating
or restricting fundamental rights ‘to the
extent that the regulation or restriction is necessary’ (having regard to
various factors) or except where such laws ‘mak[e]
reasonable provision for cases where the exercise of one such right may
conflict with the exercise of another, to the extent that the law is reasonably
justifiable in a democratic society having a proper respect for the rights and
dignity of mankind’. Laws made for such purposes must be explicitly stated
to be such, and the onus is upon ‘the
party relying on [the law’s] validity’ to demonstrate compliance with s38
(at subsections (2)-(3)). s39 provides for various instruments to which the
courts may choose to consider in determining whether laws are ‘reasonably
justified in a democratic society’, including the Constitution itself, various
international instruments, ‘laws,
practices and judicial decisions and opinions’ in PNG and other countries
and ‘declarations by the International
Commission of Jurists and other similar organisations’.
These
restrictions upon legislative power extend to purported amendments to the Constitution itself (Namah at [54]). Although this bears formal
comparison to the restrictions upon amendment set out in Kesavananda Bharati (and related cases), and although reference has
been made to Kesavananda Bharati in
oral argument before the SCPNG in previous cases, the SCPNG has previously
declared that the ‘basic structure
doctrine’, as such, is ‘inapplicable
to the interpretation of the [PNG] Constitution’ (Special Reference by Fly River Provincial Executive Council (at
[109])). That is to say, restrictions upon
amendment are said to arise purely by virtue of these explicit restrictions rather
than by reference to any broader appeal to the Constitution’s ‘basic structure’
or principles.
Namah
and Kesavananda (and its Descendents)
The
SCPNG found that the PNG Government had not satisfied the onus upon them to
establish that the Amendment satisfied the requirements of s38 of the PNG
Constitution (Namah at [54], [65],
[97]). The SCPNG’s treatment of this issue in Namah is relatively brief. At [53], Kandakasi J notes that the
Amendment does not explain ‘the purpose
of the amendment or the right or rights which it purports to restrict’ and does not justify why the regulation or
restriction is ‘reasonably justifiable in
a democratic society having a proper respect for the rights and dignity of
mankind’ (and hence why the regulation or restriction satisfies s38), and
that no explanation was provided for the unusual procedural background to the
amendment (having been enacted as part of a law governing dual citizenship in
PNG). Kandakasi J hence asserts that ‘[i]n
the absence of any evidence to the contrary, it is clear the 2014 Amendment was
inserted without any proper consideration or thought’ – further bolstering
the Government’s failure to satisfy the onus placed upon them by s38. Kandakasi
J had further regard to the UNHCR’s guidelines on the detention of asylum
seekers (Namah at [66]), PNG’s
obligations under the Refugees Convention
(at [67]), and the UNHCR’s condemnation of the conditions in which asylum
seekers on Manus Island are detained (at [68]). Each of these materials are
consistent with the matters to which the SCPNG may have regard under s39 in its
construction of s38.
The Constitution
of PNG hence provides (albeit in relatively broad terms) for the criteria that
a valid constitutional amendment must satisfy (in s38), and for some
considerations relevant to whether those criteria have been met (in s39). The
contrast to the Constitution of India is apparent. Even if one does not accept
Mehta’s view that the Indian Supreme Court ‘has
not quite thought through the constitutional principle behind the basic structure doctrine’[2]
(or similar critical takes), accepting instead the notion that the ‘basic
structure’ of the Constitution and its components must, in fact, have a textual
foundation (with a corresponding conceptual underpinning),[3]
the PNG experience presents an interesting contrast of limitations to amendment
that are set out as explicit criteria (rather than, for example, basic features
arising from, but not identified as such within, the constitutional text),
albeit measured by external yardsticks. Interestingly, however (and admittedly
contrary to the view I have expressed below about the beneficial clarity of
PNG’s criteria), these external yardsticks noted in s39 allow the test under
s38 to have regard to the ‘abstract
ideals’ and extraconstitutional sources of the kind eschewed by Bhagwati J
as a guide to the ‘basic features’ in Minerva
Mills AIR 1980 SC 1789 (at 1821).
PNG’s
constitutional provisions (and their subsequent development in caselaw) are, of
course, the product of that nation’s unique history and circumstances. One may
posit, however, that the result in Namah
(and
foreshadowed positive results for asylum seekers detained on Manus Island) was
made more certain by textual clarity as to what, exactly, the SCPNG was
required to examine, and what metrics it could use in doing so. I am
sympathetic to the view that the Indian Supreme Court has in fact followed a
coherent and identifiable method in its approach to the ‘basic structure’
doctrine,[4]
and I acknowledge the considerable breadth of the terms ‘reasonably justifiable in a democratic society having a proper respect
for the rights and dignity of mankind’ (particularly where assessed by
reference to a plethora of external sources). Even so, constitutional
challenges of the kind that succeeded in Namah,
and the ability of even marginalised and detained non-citizens to hold
governments to account, are strengthened and made more likely by this degree of
certainty and clarity as to the proof to which the Government must ultimately
be put, and in a climate of relative consensus as to how that proof is to be
reached.
I am grateful to Emeritus Professor Tony Blackshield for his inspiration and encouragement in writing this post.
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