What Is “The Protection of the Law” Under Section 37?

Section 37 of the Constitution is where most criminal-law constitutional argument in Papua New Guinea begins. Subsection (1) states the right, and says the rest of the section exists to make it real:

No offence without a written law — s 37(2)

Nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law. The single exception, subject to any Act to the contrary, is contempt of court.

Both limbs matter: the offence must be defined and the penalty prescribed. This is also why custom, which is law in Papua New Guinea, cannot by itself create a criminal offence.

Fair hearing within a reasonable time — s 37(3)

A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court. See the right to a trial within a reasonable time.

The rights of a person charged — s 37(4)

• (a) presumed innocent until proved guilty according to law — though a law may place on the accused the burden of proving particular facts peculiarly within their knowledge;
• (b) informed promptly, in a language they understand, and in detail, of the nature of the offence charged;
• (c) given adequate time and facilities to prepare a defence;
• (d) permitted without payment the assistance of an interpreter if they cannot understand or speak the language used at the trial;
• (e) permitted to defend themselves in person, or at their own expense by a lawyer of their own choice, or if entitled to legal aid, by the Public Solicitor or another representative assigned according to law;
• (f) afforded facilities to examine prosecution witnesses, to obtain the attendance of and examine their own witnesses, and to testify on their own behalf, on the same conditions as prosecution witnesses.

Subsection (6) preserves laws imposing reasonable conditions on payment of defence witnesses’ expenses from public funds.

Trial in the accused’s absence — s 37(5)

Except with consent, the trial shall not take place in the accused’s absence unless they conduct themselves so as to make continuing in their presence impracticable and the court orders their removal. A law may allow a charge whose maximum penalty does not include imprisonment (except in default of a fine) to be heard summarily in absence if due service of a summons is established.

No retrospective offences or penalties — s 37(7)

No person shall be convicted on account of an act that did not constitute an offence at the time it took place, and no penalty shall be imposed that is more severe in degree or description than the maximum penalty that might have been imposed at the time the offence was committed.

The second limb is frequently decisive when penalties are increased. An increase applies to conduct after it comes into force, not before.

Double jeopardy and pardon — ss 37(8) and (9)

A person who shows they have been tried by a competent court for an offence and convicted or acquitted shall not again be tried for that offence, or for any other offence of which they could have been convicted at that trial — except on the order of a superior court in appeal or review proceedings. And no person shall be tried for an offence for which they have been pardoned.

No compulsion to incriminate yourself — s 37(10)

No person shall be compelled in the trial of an offence to be a witness against himself. This is the constitutional root of the caution and of the right to decline to answer questions.

Civil rights and open justice — ss 37(11)–(13)

Section 37 is not confined to criminal matters. Subsection (11): 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 by the parties, and such proceedings shall be fairly heard within a reasonable time.

Subsection (12) requires proceedings — and the announcement of the decision — to be held in public, except with the agreement of the parties or by court order in the interests of national security. Subsection (13) permits exclusion of persons other than the parties and their lawyers where empowered by law and necessary or expedient in the interests of public welfare, where publicity would prejudice the interests of justice, the welfare of persons under voting age or the private lives of persons concerned, or in the interests of defence, public safety or public order.

The four-month report — s 37(14)

If the trial of a person is not commenced within four months of committal for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration. This is an under-used accountability mechanism for delay.

Review and appeal — ss 37(15) and (16)

Every person convicted is entitled to have their conviction and sentence reviewed by a higher court or tribunal according to law; and no person shall be deprived by law of a right of appeal that existed at the time of the conviction or sentence.

Treatment in custody — ss 37(17)–(20)

• All persons deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
• Accused persons shall be segregated from convicted persons, with separate treatment appropriate to their unconvicted status.
• Persons under voting age in custody shall be separated from others and treated appropriately to their age.
• An offender shall not be transferred away from where their relatives reside except for security or other good cause, and the reason must be endorsed on the offender’s file.

Natural justice and village courts — ss 37(21) and (22)

Nothing in section 37 derogates from the principles of natural justice in Division III.4, or affects the powers and procedures of village courts. But subsection (22) adds, notwithstanding that: the powers and procedures of village courts shall be exercised in accordance with the principles of natural justice.