What Is Equality of Citizens Under Section 55?

Section 55 of the Constitution is short, and each of its three subsections does distinct work.

The eight listed grounds

Race, tribe, place of origin, political opinion, colour, creed, religion, sex. Two are distinctively Papua New Guinean: tribe and place of origin. Together they address the form discrimination most often takes in this country — treatment based on which province, district or language group a person comes from.

The same eight grounds appear in the Preamble’s acknowledgment of Basic Rights, which extends the fundamental rights and freedoms to all persons “whatever their race, tribe, place of origin, political opinion, colour, creed or sex”.

It is a right of citizens

Section 55 sits under the heading “Special Rights of Citizens”. Non-citizens do not hold it. They do hold the rights of all persons in sections 32 to 49, and the Constitution expressly contemplates laws imposing restrictions on non-citizens in several places — sections 46, 47, 48, 52, 53(7) and 56.

“Same rights, privileges, obligations and duties”

The guarantee is symmetrical: it covers burdens as well as benefits. A law that imposed a duty on citizens of one province and not another would engage section 55 as squarely as one that conferred a benefit.

The phrase “subject to this Constitution” matters too. Where the Constitution itself draws a distinction — for instance the dual-citizenship limits in section 50(1)(ba) and section 56(1) — section 55 does not override it.

Section 55(2) — affirmative action is expressly permitted

This subsection puts beyond argument that measures for the special benefit, welfare, protection or advancement of four groups are consistent with equality:

• females;
• children and young persons;
• members of underprivileged or less advanced groups; and
• residents of less advanced areas.

It aligns with the National Goals. Goal 2 calls for equal participation by women citizens in all political, economic, social and religious activities, for equalization of services in all parts of the country, and for equitable distribution of benefits — and section 38(1)(a)(i)(G) lists “the development of under-privileged or less advanced groups or areas” among the public interests for which a qualified right may be restricted.

So reserved seats, scholarship programmes, targeted services and district-based development measures are not exceptions grudgingly tolerated; they are contemplated by the constitutional scheme.

Section 55(3) — the pre-Independence law exception

Subsection (1) does not affect the operation of a pre-Independence law. This is a transitional saving, adopted alongside the reception of pre-Independence statutes under Schedule 2 and the Laws Adoption and Adaptation Act (Chapter 20). Its practical scope narrows as pre-Independence statutes are replaced, but where an old adopted law is still in force it is not open to challenge on section 55(1) grounds alone.

Does section 55 apply between private parties?

Section 34 applies each provision of Division 3 “as far as may be” between individuals and to corporations and associations. Section 55 is within Division 3, so the door is open — and discrimination in employment and services is also addressed by ordinary legislation, including the Discriminatory Practices Act (Chapter 269). See Sukuramu v New Britain Palm Oil Ltd [2007] PGNC 21; N3124.

Making a section 55 claim

1. Identify the differential treatment — what was done to you that was not done to others.
2. Identify the ground — one of the eight, on the facts.
3. Identify the comparator — the citizen or class treated differently in relevantly similar circumstances.
4. Anticipate section 55(2) — if the measure benefits one of the four listed groups, it is likely to be within the carve-out.
5. Bring it under section 57, with damages under section 58.