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.

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.

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.