Section 45 of the Constitution is more detailed than the equivalent provision in most constitutions, and its detail reflects Papua New Guinean circumstances directly.
Section 45(1) — the right
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 right is regulated or restricted by a law complying with section 38.
Four elements are protected: conscience, thought, religion, and practice. The right covers belief and non-belief alike — section 45(3) refers expressly to “his or any religion (or irreligion)”.
The internal limit is built into the right itself: manifestation and propagation are protected in such a way as not to interfere with the freedom of others.
Section 45(2) — no compelled religious instruction or observance
No person shall be compelled to receive religious instruction or to take part in a religious ceremony or observance — but this does not apply to giving religious instruction to a child with the consent of the parent or guardian, or to the inclusion in a course of study of secular instruction concerning any religion or belief.
The distinction drawn here matters in schools. Teaching about religions, as part of a course of study, is secular instruction and is not caught. Requiring a child to receive religious instruction, or to take part in a ceremony, requires the consent of the parent or guardian.
Section 45(3) — no unsolicited intervention
No person is entitled to intervene unsolicited into the religious affairs of a person of a different belief, or to attempt to force his or any religion (or irreligion) on another, by harassment or otherwise.
This is an unusual provision, and it has real content. The Constitution protects propagation in section 45(1) but draws a line at unsolicited intervention in the religious affairs of someone of a different belief, and at forcing religion or irreligion on another by harassment or otherwise. Because section 34 applies the Division between individuals, section 45(3) operates between private persons and groups, not only against the State.
Section 45(4) — oaths
No person may be compelled to take an oath that is contrary to his religion or belief, or to take an oath in a manner or form that is contrary to his religion or belief.
This is why the Constitution provides an Affirmation of Allegiance alongside the Oath in section 7, and why affirmations are available to witnesses in court. See the Declaration of Loyalty and the Oath of Allegiance. A person who declines to swear a religious oath is exercising a constitutional right, and no adverse inference is available from that fact.
Section 45(5) — traditional beliefs and customs
A reference in this section to religion includes a reference to the traditional religious beliefs and customs of the peoples of Papua New Guinea.
The subsection puts beyond argument that section 45 is not confined to the introduced religions. Traditional religious belief and customary religious practice attract the same constitutional protection — consistent with National Goal 5 and with the treatment of custom as part of the underlying law.
How the right may be limited
Section 45(1) is a qualified right. A law restricting it must satisfy every element of section 38: it must be expressed to be made for that purpose, specify the right restricted, be certified as passed by an absolute majority, be necessary for one of the listed public interests (or to protect the rights and freedoms of others), and be reasonably justifiable in a democratic society. The burden of showing all that lies on the party relying on the law.
Note also the difference between belief and conduct. Freedom of conscience and thought is, by its nature, not something a law can regulate. Practice can be regulated — but only on section 38 terms.
Section 45 works closely with section 46 (expression), section 47 (assembly and association — including the freedom not to belong to an association), section 55 (equality irrespective of creed or religion), and section 43(2)(f), which contemplates alternative service for conscientious objectors to military service.
Sources
- Constitution — ss 7, 34, 38, 43(2)(f), 45, 46, 47, 55
- Discriminatory Practices Act (Chapter 269)
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.