Enforcement of Certain Constitutional Rights and Freedoms pursuant to s57 of the Constitution; Application by Tom Ireeuw, Jimmy Wawar, Cory Ap, and John Wakum and Others [1985] PNGLR 430

• Jurisdiction: Papua New Guinea
• Judge: Cory J:
• Judgment Date: 13 December 1985
• Citation: [1985] PNGLR 430
• Docket Number: Supreme Court Application No 1 of 1985
• Court: Supreme Court
• Year: 1985
• Judgement Number: SC311

Full Title: Supreme Court Application No 1 of 1985; Enforcement of Certain Constitutional Rights and Freedoms pursuant to s57 of the Constitution; Application by Tom Ireeuw, Jimmy Wawar, Cory Ap, and John Wakum and Others [1985] PNGLR 430

Supreme Court: Cory J

Judgment Delivered: 13 December 1985

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

(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.

(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".

(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.

(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.

(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 3 EHRR 333, adopted and applied.

(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.

(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 [1939] AC 160, followed.

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

(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.

(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] AC 542.

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

Chung Chi Cheung v The King [1939] AC 160.

Guzzardi v Italy 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:

"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:

"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:

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.

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.

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...