It is a common assumption that the Papua New Guinean Constitution protects only Papua New Guineans. The Preamble says otherwise: subject to restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual.
The rights every person holds
Under the Constitution, these belong to every person in the country, citizen or not:
- s 32 — right to freedom
- s 35 — right to life
- s 36 — freedom from inhuman treatment (absolute)
- s 37 — protection of the law, in all twenty-two subsections
- s 41 — protection against harsh, oppressive or disproportionate acts
- s 42 — liberty of the person
- s 43 — freedom from forced labour
- s 44 — freedom from arbitrary search and entry
- s 45 — freedom of conscience, thought and religion
- s 46 — freedom of expression
- s 47 — freedom of assembly and association
- s 48 — freedom of employment
- s 49 — right to privacy
They are enforceable by non-citizens in the same way as by citizens, under section 57, with damages under section 58. That was the framework applied in Namah v Pato [2016] PGSC 13; SC1497.
Where restrictions on non-citizens are expressly permitted
- s 46(1)(b) — freedom of expression may be restricted by a law imposing restrictions on non-citizens.
- s 47(c) — the same for assembly and association.
- s 48(1) — the same for freedom of employment.
- s 53(7) — the protections in section 53 do not apply to the property of a non-citizen; the power to acquire it compulsorily is as provided by an Act.
- s 54(c) — a law may prohibit or regulate the holding of certain interests in land by non-citizens.
- s 42(1)(g) — detention is permitted to prevent unlawful entry, or to effect expulsion, extradition or other lawful removal.
- s 42(1)(ga) — detention of a foreign national under arrangements made with another country or an international organisation approved by the Minister responsible for immigration.
A restriction still needs a law. An administrative practice that treats non-citizens differently, without statutory foundation, is not within these provisions — and section 32(2)(c) says no person is obliged to do anything that is not required by law.
Rights non-citizens do not hold
- s 50 — the right to vote and stand for public office.
- s 51 — reasonable access to official documents.
- s 52 — freedom of movement, residence, and entry to and departure from the country, and the protection against expulsion or deportation.
- s 55 — equality of citizens.
- s 56 — other rights and privileges of citizens, including the acquisition of freehold land.
Detention, deportation and removal
Detention of a non-citizen under section 42(1)(g) or (ga) must still comply with the rest of section 42:
- s 42(2) — prompt information, in a language the person understands, of the reasons; permission to communicate without delay and in private with a family member or friend and a lawyer; adequate opportunity to give instructions in the place of detention; and to be informed immediately of these rights.
- s 42(5) — a complaint of unlawful or unreasonable detention triggers a duty on the National Court or a Judge to inquire and to order the person brought before the court.
- ss 36 and 37(17) — freedom from inhuman treatment, and treatment with humanity and respect for inherent dignity.
The governing statute is the Migration Act (Chapter 16). Note also that non-citizens are not within the section 52(2) protection against expulsion, which applies to citizens.
Section 34 applies here too
Section 34 applies the Basic Rights, as far as may be, between individuals and to corporations and associations. A non-citizen worker, tenant or customer can in principle rely on the rights of all persons against a private employer, landlord or company — not only against the State.
Work by non-citizens is regulated principally through the Public Employment (Non-citizens) Act (Chapter 342) and work-permit and visa requirements under the Migration Act. Section 48 protects freedom of choice of employment for every person, expressly subject to a law imposing restrictions on non-citizens.
Sources
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.