Application by Ireeuw, Wawar, Ap, and Wakum [1985] PGNC 7; [1985] PNGLR 430 (13 December 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 430 - Application by Tom Ireeuw, Jimmy Wawar, Cory Ap, and John Wakum 

[1985] PNGLR 430

SC311

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SC APPLICATION NO 1 OF 1985

ENFORCEMENT OF CERTAIN CONSTITUTIONAL RIGHTS AND FREEDOMS PURSUANT TO S 57 OF THE CONSTITUTION

APPLICATION BY TOM IREEUW, JIMMY WAWAR, CORY, AP, JOHN WAKUM AND OTHERS

Waigani

Cory J

30 October 1985

25 November 1985

13 December 1985

CONSTITUTIONAL LAW - Basic rights - Enforcement proceedings under Constitution - Provisions confirming rights and freedom distinguished from interpretative provisions - Constitution, ss 32(1), 39(1), (2), 41.

CONSTITUTIONAL LAW - Basic rights - Enforcement proceedings under Constitution - Cruel or inhuman treatment - Confinement of border crossers not included - Constitution, ss 36(1), 37(17).

CONSTITUTIONAL LAW - Basic rights - Enforcement proceedings under Constitution - “Deprivation of Liberty” - Mere restriction on freedom of movement not included - Confinement of border crossers not included - Constitution, ss 34(1), 42.

CONSTITUTIONAL LAW - Customary law - Rules of international law - Adoption of - By incorporation unless inconsistent with legislation or case law - Rules of non-refoulement of refugees - Rule not incorporated in Papua New Guinea - Constitution, Sch 2.2.

PUBLIC INTERNATIONAL LAW - Rules of international law - Adoption of common law - By incorporation unless inconsistent with legislation or case law - Rules of non-refoulement of refugees - Rule not incorporated in Papua New Guinea - Constitution, Sch 2.2.

A number of border crossers who crossed from West Irian into Papua New Guinea in 1984 were confined at a camp near the border in conditions of some restriction occasioned by the need for proper administration and maintenance of the camp, the restrictions including restrictions on movement to and from the camp, visitors to the camp and the regulation of food supply to the camp.

On an application by four of the border crossers confined to the camp for orders for enforcement of constitutional rights pursuant to the Constitution, s 57, claiming, inter alia, that they had been deprived of their liberty, that their treatment in the camp had been cruel, inhuman and inconsistent with respect for the dignity of the human person and breaches of other rights and freedoms.

Held

N1>(1)      There can be no breach of a constitutional right under the Constitution, s 32(1), because s 32(1) does not in itself confer a right; it merely provides a definition of what amounts to a freedom for the purposes of interpreting other provisions of the Constitution.

N1>(2)      There can be no breach of a constitutional right under the Constitution, s 39(1) and s 39(2), because s 39 is not a substantive provision conferring rights but an interpretative and procedural provision explaining the expression “reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind”.

N1>(3)      There can be no breach of a constitutional right under the Constitution, s 41, because the section confers a right of action as distinct from a right or freedom under the Constitution.

SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329, followed.

N1>(4)      The continued confinement of the border crossers in camps in conditions of some restriction did not constitute “treatment or punishment that is cruel or otherwise inhumane, or is inconsistent with respect for the inherent dignity of the human person” contrary to the Constitution, s 36(1) or s 37(17).

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314, followed.

N1>(5)      A mere restriction on freedom of movement or individual liberty is not a “deprivation of liberty” within the Constitution, s 37(17) or s 42.

Guzzardi v Italy [1980] ECHR 5; 3 EHRR 333, adopted and applied.

N1>(6)      Accordingly the continued confinement of the border crossers in camps in conditions of some restrictions did not constitute a “deprivation of liberty” within the Constitution, s 37(17) or s 42.

N1>(7)      Adoption of rules of international law into a common law system may occur by incorporation but only so far as they are not inconsistent with legislation or case law.

Chung Chi Cheung v The King [1938] UKPC 75; [1939] AC 160, followed.

Trendtex Trading Corporation v Central Bank of Nigeria [1977] 2 WLR 356 at 364, considered.

N1>(8)      The customary rule of international law of non-refoulement of refugees is not incorporated as part of the law of Papua New Guinea under the Constitution, Sch 2.2, because it is contrary to the provisions of the Migration Act (Ch No 16), particularly s 10 and s 13, and inconsistent with the decision in Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

N1>(9)      On the evidence there had been no breaches of any constitutional rights and no orders should be made.

Cases Cited

Attorney-General for the Dominion of Canada v Cain [1906] UKLawRpAC 37; [1906] AC 542.

Birdi v Secretary of State for Home Affairs (1975) 119 SJ 332.

Chung Chi Cheung v The King [1938] UKPC 75; [1939] AC 160.

Guzzardi v Italy [1980] ECHR 5; 3 EHRR 333.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314.

SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329.

Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529; 2 WLR 356 at 364; 1 All ER 881.

Application for Enforcement of Constitutional Rights and Freedoms

This was an application by four border crossers from West Irian for enforcement of constitutional rights pursuant to the Constitution, s 57.

Counsel

B Narakobi, for the appellant.

J Baker, for the principal legal adviser.

Cur adv vult

13 December 1985

CORY J: This is an application for the enforcement of certain constitutional rights and freedoms under the Constitution, s 57.

The jurisdiction of the Supreme Court under s 57 is set out in s 57(1) and s 57(5).

Section 57(1) is as follows:

N2>“57.    Enforcement of Guaranteed Rights and Freedoms

(1)      A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.”

Section 57(5) reads as follows:

N2>“57(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.”

On the evidence adduced to the Court or agreed upon between the parties, I make the following findings of fact:

N2>A.       That in February 1984 the four applicants and their families, believing that they were likely to be killed by Indonesian soldiers or government officials if they remained in West Irian, crossed into Papua New Guinea.

N2>B.       On arrival at Vanimo, three of the applicants, Tom Ireeuw, Jimmy Wawar and John Wakum were charged under the Migration Act (Ch No 16), s 16(1), with having entered Papua New Guinea without a valid entry permit. Two of the applicants, Jimmy Wawar and John Wakum, were convicted and sentenced to six weeks imprisonment. On an appeal to the National Court on 21 June 1984, as appears from Appeal No 158/84, the appeals were allowed on the ground that the magistrate had failed to take into account the defence of acting under an emergency under the Criminal Code (Ch No 262). The conviction and sentences were quashed and the matter remitted back to the District Court, Vanimo, for rehearing. It appears that in fact this was never done. The third applicant, Tom Ireeuw was discharged by the Vanimo District Court. After their court appearances the four applicants together with a number of others were confined to the Black Water Camp near Vanimo. In about November 1984 the number of people at the camp were about 800.

N2>C.       The conditions at the Black Water Camp were as follows: Timber was made available and semi-permanent dwellings were soon erected. The border crossers were supplied with food in the form of rice, tinned fish and tinned meat. Food grown locally by the villagers in the surrounding area, was delivered to an office in Vanimo and then transported to the camp for distribution. Almost as soon as the camp was established the border crossers began to make gardens. No government officers actually lived in the camp. There was a police post about five minutes walk from the camp manned by several policemen. A government official, Lawrence Sapien, travelled constantly to and from the camp every day to supervise the care of the border crossers and the general administration of the camp. In administering the camp the following rules were applied:

(a)      The camp inmates were not permitted to travel outside the camp without good cause. Permission was given to travel for obtaining medical treatment, for interviews in Vanimo by other Foreign Affairs Officers and to visit relatives in Vanimo. Shopping in Vanimo was also permitted. The above rules were applied for the efficient running of the camp. In practice however, because the camp had no secure perimeter in the form of a fence, or other means of confinement, the border crossers found no difficulty in leaving the camp whenever they wished.

(b)      Persons wishing to visit the camp had to apply to the Vanimo office to do so. Sometimes applications by visitors to visit the camp were refused.

(c)      Certain kinds of overt political activity directed against the government of the Republic of Indonesia such as the display of banners critical of that government and the flying of the so-called flag of West Papua, were not permitted. Otherwise there was no restriction on the political activity or political discussion that could take place.

(d)      For several months roll calls were conducted every afternoon. On these occasions, inmates were advised of the matters which were required to be brought to their attention.

(e)      Camp inmates were not allowed to go to Vanimo town to join church services on Sundays or any other days, but church services were regularly conducted within the camp. Also pastors and priests were permitted to enter the camp to conduct services.

(f)      Government officers did receive information from some camp inmates on the activities of other inmates.

N2>D.       On 7 July 1984, two women, Stien Watofa and Mrs Tobla Saeray, went to Vanimo to obtain medical treatment. Instead of returning to the camp after attending hospital, the two women remained in Vanimo at a house where a party was being held that night. Because they failed to return to the camp, the next day, when they did return, they were assaulted by the government official, Lawrence Sapien. There is no evidence as to the nature of the assault but on 26 October 1984 Lawrence Sapien was convicted by the Vanimo District Court of assault.

N2>E.       On 3 November 1984 there was an incident at the Black Water Camp when Papua New Guinea officials were preparing for the visit of a Papua New Guinea Indonesian delegation. Those border crossers who wished to see the Papua New Guinea Indonesian delegation were told to go to the area of the police post outside the area of the camp. On the arrival of the delegation some border crossers walked towards the police post carrying placards and the flag of West Papua. When the leader of the Indonesian delegation prepared to address the crowd, the border crossers started to act in a hostile and threatening manner. The Indonesian delegate stopped his speech and the delegation attempted to board vehicles and return to Vanimo. At this point the border crossers began to rush towards the vehicles. The police fired a warning shot and some teargas canisters. The situation appeared to be getting out of control. Rocks and other missiles were being thrown at the vehicles. In these circumstances, Floyd Judas, a member of the Defence Force, drew a loaded pistol for self-protection and for the protection of others. He did not fire any shots. He joined the other officials in the vehicles and left the area of the camp.

N2>F.       In about October 1984 a police officer tore the outpatient medical card belonging to the applicant Tom Ireeuw and the cards belonging to about five other persons. The camp inmates believed that the possession of the medical cards gave them an entitlement to travel from the camp to Vanimo. The card was regarded as a kind of pass for that purpose. The destruction of the medical card did not prevent camp inmates, including the applicant Tom Ireeuw, from obtaining medical treatment in Vanimo, as new cards were issued to them.

N2>G.       I am not satisfied that there is sufficient evidence to establish any of the other allegations by the applicants.

N2>H.       I am satisfied that each of the four applicants believe that if they were returned to West Irian they would be severely punished.

N2>I.        In March 1985 two of the applicants, Tom Ireeuw and Jimmy Wawar together with their families were transferred to a camp at Telefomin. At the Telefomin camp there are about seventy border crossers living in a camp about a mile from Telefomin Station. But the border crossers are free to move around during the day. If they intend to move away from the camp at night, they are required to give notice of this to the District Officer in charge of the government station, but their movement at night is not restricted apart from this requirement. The supply of food by the local people is not prohibited, but the food is required to be initially delivered to the District Officer in order that he can regulate supply. There is no censorship of the camp inmates’ mail and letters.

N2>J.       None of the applicants to date have made any application to the immigration authorities for an entry permit.

One or more of the applicants claim a breach of the following constitutional rights or freedoms:

1. Claim of Breach of Constitutional Right, s 32(1), s 32(2)(a), (b), (c) and (d)

Section 32(1) and (2) reads as follows:

N2>“32.    Right to Freedom

(1)      Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

(2)      Every person has the right to freedom based on law, and accordingly has a legal right to do anything that:

(a)      does not injure or interfere with the rights and freedoms of others; and

(b)      is not prohibited by law,

and no person:

(c)      is obliged to do anything that is not required by law; and

(d)      may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).”

(a) Re s 32(1): Right to Freedom

This section does not in itself confer a right. It is “a definition” of what amounts to “freedom”. It is an interpretative provision where a “freedom” is granted by other sections of the Constitution, for example, s 36 — “Freedom from Inhuman Treatment” and s 44 — “Freedom from Arbitrary Search and Entry”. There is then no breach of a constitutional right under s 32(1).

(b) Section 32(2)(a), (b), (c) and (d)

The applicant Tom Ireeuw on behalf of the other applicants has supplied the following particulars of alleged breaches of this section:

“Each applicant is in confinement and is under threat of being repatriated against his or her will. Each applicant has not been given an opportunity to apply for refugee status or seek permissive residence ... each of the applicants has been obliged to stay in refugee camps and is therefore prevented from seeking refugee status or permissive residence ....”

It has been conceded on behalf of the applicants and the Court has made a finding, that up to this time, none of the applicants has made an application for an entry permit. There is nothing under the Migration Act or its regulations or any other Act which would prevent the applicants from making such an application. The Migration Act, s 4(3), provides:

“An entry permit may be issued to a person before he has entered the country or after he has entered the country.” [My emphasis.]

There is no evidence before the Court of any denial of an opportunity to apply for “Refugee Status” or status as a “Permissive Resident”. Neither of these terms is defined or explained in the Migration Act or any other law of Papua New Guinea. It may be that the applicants would come within the definition of “refugee” in the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol to that Convention, but Papua New Guinea is not a party to the 1951 Refugee Convention or the 1967 Protocol to that Convention. Any determination of the “refugee” status of the applicants, is a matter for the determination of the executive government, not the court. There is then no breach of any constitutional right under s 32(2).

2. Claim of breach of constitutional right or freedom under s 36(1)

Section 36(1) is as follows:

N2>“36.    Freedom from Inhuman Treatment

(1)      No person shall be submitted to torture (whether physical or mental) or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.”

The question then is whether the continued confinement of the applicants in camps, in the conditions and circumstances set out earlier, is a breach of this constitutional freedom.

The Supreme Court in SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 (the Minimum Penalties case) held that the imposition of minimum custodial sentences of imprisonment did not constitute a breach of s 36. The conditions under which the applicants were confined in camps falls far short of the conditions which would be experienced by prisoners serving a custodial sentence. In the course of his judgment, Kapi DCJ, after referring to the debates of the Constituent Assembly, the European Convention of Human Rights, article 3 of which provides, “No-one shall be subjected to torture or to inhuman or degrading treatment or punishment” and cases decided by the Court of Human Rights in Europe, stated (at 326) that:

“It follows from this that any treatment or punishment that is inconsistent with the respect for the inherent dignity of the human person is prohibited by s 36(1). In my view torture, cruel or inhuman treatment or punishment are inconsistent with respect for the inherent dignity of the human person.”

He stated that punishment was “cruel or inhuman” in which “severe pain and suffering is caused to the human person, either physically or mentally”.

The evidence adduced by the applicants in relation to their treatment in the camps does not come anywhere near the requirements of s 36(1). I find there is no breach of this section.

3. Claim for breach of constitutional right under s 37(17)

This section provides that:

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

There is no breach under this section for two reasons:

N2>(a)      There has been no “deprivation of liberty” of the applicants, as shall be referred to later under s 42; and

N2>(b)      For the same reasons as indicated under s 36, the evidence does not establish that the applicants were not treated with “humanity and with respect for the inherent dignity of the human person”.

There is then no breach of this section.

Apart from the conditions in the camp, the applicants also seek to rely on the assault by Lawrence Sapien on the two women, Stein Watofa and Mrs Tobla Saeray, as being a breach of both s 36(1) and s 37(17). I find there is no breach of either of these sections: first because there is no evidence before the Court of the nature of the assault or the degree of force applied or the harm that was suffered by either of the two women; and secondly, the assault was not committed on any of the applicants.

Similarly, I find that the destruction of the medical cards including that of the applicant Tom Ireeuw, was not a breach of s 36(1).

4. Claim for breach of constitutional right under s 39(1) and (2)

These subsections read as follows:

N2>“39.    ‘Reasonably Justifiable in a Democratic Society’, etc

(1)      The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.

(2)      A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.”

This section is not a substantive provision conferring rights. It is an interpretative and procedural provision explaining the expression “reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind”. Section 39 is of relevance in providing the machinery for the operation of s 38 where the words “reasonably justifiable ... mankind” occur.

5. Claim for breach of right under s 41(1)(a), (b), (c)

Section 41(1) reads as follows:

N2>“41.    Proscribed Acts

(1)      Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      is harsh or oppressive; or

(b)      is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c)      is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.”

In the recent decision of the Supreme Court in SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329, the court held that s 41 does not confer a right enforceable under s 57 of the Constitution. Section 41 confers only a right of action as distinct from a right or freedom under the Constitution. Kapi DCJ at 336-337 of his judgment stated:

“However any person aggrieved by acts which are prohibited by s 41 (a), (b) or (c) may seek judicial remedy in terms of the provision. That is to say, he has a cause or right of action on which he may make an application to a court ... in this sense, a person has a right of action to come to the Court. This is quite a different thing from a ‘right or freedom’ referred to in s 57 of the Constitution.”

There can be then no breach of a constitutional right under s 41.

In any event I consider that the evidence does not establish any “act” which would come within s 41(1)(a), (b) or (c).

6. Claim of breach of right under s 42(1)

Section 42(1) provides:

“Liberty of the Person

N2>(1)      No person shall be deprived of his personal liberty except:

...

(g)      For the purpose of preventing the unlawful entry of a person into Papua New Guinea or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes ....” [My emphasis.]

In determining the interpretation of the words “deprived of his liberty” assistance is obtained from the case of Guzzardi v Italy [1980] ECHR 5; 3 EHRR 333. Section 42(1) is in similar terms to article 5 of the European Convention on Human Rights which reads:

“Everyone has the right to liberty and security of the person. No person shall be deprived of his liberty saving the following cases in accordance with the procedure prescribed by law.” [My emphasis.]

The judgment of the European Court of Human Rights at 365, par 92 provides:

“The court recalls that in proclaiming the ‘right to liberty’ paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no-one should be dispossessed of his liberty in an arbitrary fashion. As is pointed out by those appearing before the court, the paragraph is not concerned with mere restriction on liberty of movement; such restrictions are governed by Article 2 (in the same way as s 52 — Rights to Freedom of Movement is determined under the Papua New Guinea Constitution, such rights being restricted to citizens only). In order to determine whether someone has been deprived of his liberty within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.” [My emphasis.]

Paragraph 93 provides:

“The difference between deprivation of and restrictions upon liberty is none the less merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these classifications, sometimes proves to be no easy task, in that some borderline cases are a matter of pure opinion, the court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.”

Paragraph 94 provides:

“As provided for under the 1956 Act, special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope of Article 5.”

In considering the facts in the present case there is some restriction upon the applicants’ freedom of movement, and in some respects the individual liberty of each applicant is restricted, but none of the applicants are deprived of their liberty. As mentioned earlier, freedom of movement is protected by the Constitution, s 52, but this protection is given only to citizens. The applicants are not citizens of Papua New Guinea.

The applicants’ conditions at both the Black Water Camp and the Telefomin Camp can be summarised as follows:

N2>(a)      The camp is not fenced or secured and persons can in practice leave when they wish. They can go out to the Vanimo township for shopping or medical treatment.

N2>(b)      For some months after February 1984 there was a roll call, but there is no evidence that this has persisted.

N2>(c)      Visitors can enter the camp having received permission to do so.

N2>(d)      There is no curfew during which the applicants have to remain indoors.

N2>(e)      Families are not separated.

N2>(f)      There are no restrictions on religious gatherings or services within the camp area and they are free to assemble peacefully and to have discussions, including political discussions.

N2>(g)      There is no forced labour.

N2>(h)      The right to reasonable privacy in respect of both the applicants’ private and family life is respected. The evidence does not establish that there has been any infringement of the applicants’ right to privacy in relation to their communications with other persons and their personal papers and effects.

Most of the restrictions which have sought to be applied, but some of which have not in fact been enforce, would appear to have been necessary for the proper maintenance and administration of the camp, accommodating at one stage about 800 persons.

In the circumstances I find that there has been no deprivation of liberty in the case of any of the applicants.

In any event even if the continuing confinement of the applicants in the camps, under the circumstances adduced in evidence, were deemed to constitute a deprivation of liberty, then under s 42(1)(g), such deprivation would be authorised under s 42(1)(g) both “for the purpose of preventing the unlawful entry” of the applicants into Papua New Guinea, that unlawful entry being a situation which has continued since their arrival in February 1984 or “for the purpose of effecting their expulsion from Papua New Guinea”.

As none of the applicants have obtained an entry permit under the Migration Act they have been and are up to the present time “unlawfully present” in the country. By the Migration Act, s 12, the Minister may order the removal of that person from the country at any time. Section 42(1)(g) allows for deprivation of liberty for this purpose. Section 42(1)(g) does not require deprivation of liberty to be in accordance with a law. It could be effected administratively.

The Migration Act is a valid law in accordance with the Constitution. Section 1 of the Act provides that it has been enacted in accordance with the Constitution, s 38, to the extent that it regulates or restricts certain rights or freedoms.

7. Non-refoulement — Customary International Law

It has been submitted on behalf of the applicants (par 16 of the statement of particulars of the applicant Tom Ireeuw) that:

N2>(a)      The decision of the Papua New Guinea Government to keep the applicant in a “refugee” camp without granting him asylum; and

N2>(b)      The declaration by the Papua New Guinea Government to return the applicant to Irian Jaya; and

N2>(c)      The return of other border crossers in past months,

amounts to a violation of a rule of customary international law on non-refoulement. It is further submitted on behalf of the applicants that customary international law is binding as domestic law of Papua New Guinea under the Constitution, Sch 2.2, and is implicitly enshrined in the Constitution, s 32 and s 33.

There is no evidence from the applicants in support of the allegations in par (a) and (b). There is evidence that some border crossers had returned voluntarily to Irian Jaya. There is no evidence of any application by the applicants to remain in Papua New Guinea whether by grant of asylum or otherwise.

In relation to the submission that there is a rule of customary international law preventing what is known as “refoulement”, the term refoulement is derived from the 1951 Convention of the Status of Refugees.

Article 33, par 1 of that Convention says:

“No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Papua New Guinea is not a party to the 1951 Refugee Convention or to the Protocol to that Convention 1967. It follows that Papua New Guinea is not bound by treaty, the (convention and protocol) to observe the principle of non-refoulement.

In relation to the principle of non-refoulement there is a conflict of authorities as to whether it is or is not a rule of customary international law, and in any event there remains the question whether it has been adopted as part of the law of Papua New Guinea by virtue of the Constitution. The short answer is that the rule has not been adopted in Papua New Guinea.

Adoption of rules of international law into common law systems is discussed in Brownlie, Principles of Public International Law (3rd ed, 1979), at p 45 onwards. Brownlie concludes that incorporation is the correct approach. In Chung Chi Cheung v The King [1938] UKPC 75; [1939] AC 160, Lord Atkin said (at 168):

“The courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.”

This view, establishing the principle of incorporation was endorsed by Lord Denning, MR, in Trendtex Trading Corporation v Central Bank of Nigeria [1977] 2 WLR 356 at 364. The rule of international law prohibiting refoulement has not been incorporated into Papua New Guinea because to do so would be contrary to the Migration Act. In particular s 10 of the Act provides for certain measures to be taken against persons who have entered the country contrary to the provisions of the Act. In addition, s 13 allows the Minister to expel persons from the country by the making of a removal order. Moreover, the rule of international law prohibiting refoulement cannot be considered as incorporated into Papua New Guinea because it would be contrary to the decision of the Supreme Court in Premdas v Independent State of Papua New Guinea [1979] PNGLR 329. At 339, Prentice CJ, cites with approval the case of Attorney-General for the Dominion of Canada v Cain [1906] UKLawRpAC 37; [1906] AC 542 where it was said (at 546):

“One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State at pleasure, even a friendly alien. ...” [My emphasis.]

But this whole submission on the part of the applicants is irrelevant to these proceedings. These proceedings are brought under the Constitution, s 57, as an application for the enforcement of certain constitutional rights. The rule prohibiting refoulement is not a constitutional right that can be enforced under the Constitution, s 57.

8. Claim for Breach of Right under s 42(2)(a)

Section 42(2)(a) reads as follows:

“A person who is arrested or detained — shall be informed promptly in a language that he understands, of the reasons for his arrest or detention and of any charge against him. ...” [My emphasis.]

There is no evidence that any of the applicants are at present under arrest. None of the applicants have been detained in that they have not been deprived of their liberty and they have not been detained within the meaning of s 42(1) and s 42(2)(a) of the Constitution. No evidence has been adduced by the applicants in support of the alleged breach of this section.

9. Alleged Breach under s 42(3)(b)

Section 42(3)(b) reads as follows:

“A person who is arrested or detained:

...

(b)      upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before the court or a judicial officer and, in the case referred to in paragraph (b) shall not be further held in custody in connection with the offence except by order of a court or judicial officer.”

There is no evidence that the applicants are under arrest or detention on any of the grounds set out in s 42(3)(b).

10. Alleged Breach of Right under s 42(2)(c)

Section 42(2)(c) reads as follows:

“A person who is arrested or detained — shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained.”

The applicants are not under detention or arrest within the meaning of s 42 and there is no evidence of any failure to give an applicant the opportunity to instruct a lawyer of his choice.

11. Alleged Breach of Right under s 42(6)

Section 42(6) reads as follows:

“A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”

There is no evidence before the Court that the applicants are under arrest or detention and there is no evidence of any application for bail.

12. Alleged Breach of s 36(1) and s 37(17)

A breach of these sections is alleged arising from the policeman’s destruction of the hospital cards.

N1>(a)      There is no evidence before the Court that the medical cards were the property of the applicants. It could have been the property of the hospital who issued it.

N1>(b)      Section 53 does not protect against damage or destruction of property.

N1>(c)      Section 53(7) stipulates that s 53 does not apply to a person who is not a citizen.

In relation to s 36 and s 37(17) this has already been dealt with earlier.

13. Alleged Breach of s 45(1)

Section 45(1) reads as follows:

“Every person has the right to freedom of conscience, thought and religion and the practice of his religion and beliefs, including freedom to manifest and propagate his religion and beliefs in such a way as not to interfere with the freedom of others, except to the extent that the exercise of that right is regulated or restricted by a Law that complies with Section 38.”

The evidence does not establish an infringement of the rights under this section. The inmates were permitted to practise their religious beliefs within the camp.

14. Alleged Breach of s 42(1), s 37(17) and s 36(1)

This allegation arises from the drawing of the pistol by Mr Judas, at the incident at the camp on 2 November 1984. The evidence in relation to the circumstances under which the pistol was drawn does not establish a breach of any of these sections. It is further alleged that the drawing of the pistol constituted a breach of s 47 — “Freedom of Assembly and Association”. There was no interference with the right to assemble peacefully. The police attempted to disperse the assembly when it ceased to be a peaceful assembly. No breach of this section is established on the evidence.

15. Alleged Breach of s 32(2)(c)

It is alleged that the acts of the officials in pressurising the applicants to meet the Indonesian delegation team was a breach of this section. The evidence does not establish a breach of this section. The evidence is that the applicants themselves decided to meet the verification team from Indonesia. Likewise there is no breach of s 37(17) in this incident.

16. Alleged Breach of s 36(1)

Allegations that some border crossers spied on others. The evidence does not establish either the allegation or a breach of this section.

17. Alleged Breach of s 44 (Freedom from Arbitrary Search and Entry) and s 49 (Right to Privacy)

I find that the evidence does not establish the allegations and that there has not been a breach of either section.

18. Alleged Breach of s 36(1)

This relates to the allegation of the separation of some border crossers from other border crossers. There is no evidence in support of a breach of this section.

19. Alleged Breach of s 46 (Freedom of Expression)

I am not satisfied that the evidence establishes that there was a prohibition on the right of freedom of expression as alleged by the applicants. In any event the right of freedom of expression under s 46 is not absolute. Even if there was some restriction of political discussion, I am not satisfied that it exceeded “the least amount of restriction” permitted under s 32. Further, s 46(1)(b) allows restrictions to be imposed on non-citizens by law. Such a law is the Criminal Code. Section 44(d) and s 55 of that Act regulate and restrict certain political acts by non-citizens and it is lawful to prohibit conduct which might amount to an offence under that Act.

20. Alleged Breach of s 47 (Freedom of Assembly and Association)

For the same reasons as indicated above I am not satisfied on the evidence that the allegations of the applicants have been established and likewise, s 47(c) in the case of non-citizens provides for laws to regulate that right in respect of such persons. Section 46 of the Criminal Code is such an Act for that purpose.

21. Alleged Breach of s 43 (Freedom for Forced Labour)

This allegation relates to the building of a house-wind in Vanimo.

None of the applicants claim they were involved in building this house-wind. The evidence does not establish that this labour was forced labour. The men were requested to do the work and agreed to do so voluntarily. There is no breach of this section.

22. Alleged Breach of s 37(11)

This section provides:

“A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by Law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.” [My emphasis.]

Section 37(11) has been judicially considered in the case of Premdas v Independent State of Papua New Guinea [1979] PNGLR 329. In relation to s 37(11), Prentice CJ (at 339) said:

“... the phrase has been taken to encompass rights given under the law — meaning in the private not public law fields. ...”

The then Chief Justice cited with approval the remarks of Lord Denning in Birdi v Secretary of State for Home Affairs (1975) 119 SJ 322; that the words “civil rights and obligations given by the civil law of the country”. In Premdas’ case the Chief Justice went on to find that the grant of an entry permit did not amount to a “civil right” within s 37(11). Saldana J (at 356), relying on the same authorities, found that s 37(11) did not apply to administrative procedures.

Section 37(11) being concerned with private and not with public law has no application to any of the facts relied upon by the applicants.

I find then that there are no constitutional rights which have been infringed and I also find that there is no reasonable probability of the infringement of any constitutional rights of any of the applicants. As there has been no infringement of any rights or freedoms protected by s 57, I decline to make any declaration or orders under s 57(3).

No orders made

Lawyer for the applicants: Bernard Narakobi & Associates.

Lawyer for the respondent: Principal Legal Adviser.