Section 42 of the Constitution is the most frequently invoked provision in Papua New Guinean rights litigation. It does three things: it limits when a person may be deprived of liberty at all, it states what must happen once they are, and it provides a fast route to a judge.
Section 42(1) — the only permitted grounds
No person shall be deprived of personal liberty except:
- (a) in consequence of unfitness to plead to a criminal charge;
- (b) in execution of the sentence or order of a court for an offence of which they have been found guilty, or of an order of a court of record punishing contempt;
- (c) for failure to comply with a court order made to secure fulfilment of an obligation (other than a contractual obligation) imposed by law;
- (d) upon reasonable suspicion of having committed, or being about to commit, an offence;
- (e) to bring the person before a court in execution of a court order;
- (f) to prevent the introduction or spread of a disease, or for normal quarantine purposes;
- (g) to prevent unlawful entry into the country, or to effect expulsion, extradition or other lawful removal;
- (ga) to hold a foreign national under arrangements made with another country or an international organisation approved by the Minister responsible for immigration;
- (h) for a person of unsound mind, addicted to drugs or alcohol, or a vagrant — for care, treatment or the protection of the community under an order of a court, or to take prompt proceedings to obtain such an order;
- (i) for a person under 18, for education or welfare under a court order or with the guardian’s consent.
Paragraph (c) is worth noting: you cannot be imprisoned for a debt. The exclusion of contractual obligations is express.
Section 42(2) — the rights on arrest
(a) shall be informed promptly, in a language that he understands, of the reasons for the arrest or detention and of any charge;
(b) shall be permitted, whenever practicable, to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if entitled to legal aid);
(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,
and shall be informed immediately on arrest or detention of these rights.
The final words are often overlooked. It is not enough that the rights exist — the person must be told about them, immediately.
Section 42(3) — before a court without delay
A person arrested or detained to be brought before a court in execution of a court order, or on reasonable suspicion of having committed or being about to commit an offence, shall — unless released — be brought without delay before a court or a judicial officer. In the reasonable-suspicion case, they shall not be further held in custody in connection with the offence except by order of a court or judicial officer.
“The necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with subsection (3).” Only exigencies of travel that are reasonable in the circumstances may be such a ground — and even then without derogating from any other protection.
“We still needed to question him” is, in terms, not an answer.
Section 42(5) — the complaint to a Judge
Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained:
- the Court or Judge shall inquire into the complaint and order the person to be brought before it; and
- unless satisfied that the detention is lawful — and, for a person on remand pending trial, that it does not constitute an unreasonable detention having regard, in particular, to its length — the Court or Judge shall order his release, unconditionally or on conditions.
This is Papua New Guinea’s habeas corpus, and it is deliberately informal. A complaint triggers it. A relative, a friend, a church worker or a lawyer can make one; under section 57(1) a person may act on behalf of someone unable to act fully and freely for themselves, whether or not by their authority.
Section 42(6) and (7) — bail
A person arrested or detained for an offence other than treason or wilful murder as defined by an Act is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.
Where bail is refused, section 42(7) requires that (a) the court or person refusing bail shall, on request, state in writing the reason for the refusal; and (b) the person or their representative may apply to the Supreme Court or the National Court in a summary manner for release. See the site’s bail series, starting with what is bail?, and the grounds for refusal in section 9 of the Bail Act.
Sections 42(8) and (9)
Subject to any other law, section 42 does not apply to reasonable acts of a parent or guardian, or of a person into whose care a child has been committed, in the course of the education, discipline or upbringing of the child. Nor does it apply, subject to any Constitutional Law or Act, to a person in custody under the law of another country while in transit, or as permitted under section 206 (visiting forces).
Ask why. Ask to phone a relative and a lawyer. Say clearly that you want a lawyer before answering questions. Note the time of arrest — everything under section 42(3) is measured from it. Do not resist even an arrest you believe is unlawful; a court can remedy it afterwards, including in damages.
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.