Section 32 of the Constitution opens the Basic Rights Division, and it does something the later sections do not: it states the underlying idea of freedom itself.
Section 32(1) — the least-restriction principle
Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.
This is a definition, not a prohibition, and it is easy to underrate. It sets a constitutional presumption in favour of the least restrictive option that will do the job — a proportionality idea, built into the very first Basic Rights section, and expressly tied to the National Goals and Basic Social Obligations.
Section 32(2) — the operative right
Every person has the right to freedom based on law, and accordingly has a legal right to do anything that:
- (a) does not injure or interfere with the rights and freedoms of others; and
- (b) is not prohibited by law,
and no person:
- (c) is obliged to do anything that is not required by law; and
- (d) may be prevented from doing anything that complies with paragraphs (a) and (b).
Paragraph (c) is the one most often useful in daily life. If an official, an employer or an association demands that you do something, the constitutional question is: which law requires this? If the answer is none, section 32(2)(c) says you are not obliged.
Paragraph (d) is its mirror. Conduct that harms nobody’s rights and breaks no law may not be prevented — and “prevented” covers practical obstruction, not only legal prohibition.
A person is told they may not travel to another province without a letter from a local official. There is no law requiring such a letter, and travelling injures nobody’s rights. Section 32(2)(c) and (d) — read with section 52 — say the requirement has no legal force.
What section 32 does not do
Section 32 is not a licence. Its own terms build in the two limits: the conduct must not injure or interfere with the rights and freedoms of others, and must not be prohibited by law. Where a valid law prohibits something, section 32 does not help — though section 41 may still make a particular act under that valid law unlawful if it is harsh, oppressive or disproportionate.
Section 32 sits in Subdivision A, before the division between fundamental and qualified rights. It is introductory: it frames the Division rather than creating a stand-alone claim that displaces the specific sections. In practice, litigants plead section 32 together with the specific right engaged.
Section 32(3) — custom, family and religious obligations
Section 32(3) is a distinctively Papua New Guinean provision. The section is not intended to reflect on the extra-legal existence, nature or effect of social, civic, family or religious obligations, or other obligations of an extra-legal nature, or to prevent such obligations being given effect to by law.
In other words, the Constitution does not pretend that the only obligations a person has are legal ones. Customary obligations to clan and family are real, they continue to exist, and the law may give effect to them — consistently with the recognition of custom as part of the underlying law under Schedule 2.
What section 32(3) does not do is convert every social expectation into a legal duty. An obligation that is extra-legal remains extra-legal unless a law gives it effect.
How section 32 is used
- As a framing provision in enforcement proceedings under section 57, alongside the specific right.
- As an interpretive lever: where a restriction is open to a broader or narrower reading, section 32(1) supports the narrower one.
- As an answer to demands without legal basis, through section 32(2)(c) and (d).
Sources
- Constitution — ss 32, 33, 34, 41, 57
- Underlying Law Act 2000
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.