Division 3 of Part III of the Constitution — sections 32 to 58 — is where the Basic Rights live. The first question in any rights case is whether the person claiming the right is entitled to it.
Rights held by every person in the country
The Preamble acknowledges that, 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 — whatever their race, tribe, place of origin, political opinion, colour, creed or sex. The Constitution then structures the Division to match.
- Section 32 — right to freedom: “every person”.
- Sections 35–37 — life, freedom from inhuman treatment, protection of the law: “no person” / “every person”.
- Sections 42–49 — the heading is expressly “Rights of All Persons”: liberty, freedom from forced labour, freedom from arbitrary search and entry, freedom of conscience, expression, assembly and association, employment, and privacy.
A visitor, a foreign worker, a person in immigration detention and a stateless person all hold these rights. That was decisive in Namah v Pato [2016] PGSC 13; SC1497, where the Supreme Court considered the detention of non-citizens against section 42.
Rights reserved to citizens
Under the heading “Special Rights of Citizens”:
- Section 50 — the right to vote and stand for public office;
- Section 51 — the right to reasonable access to official documents;
- Section 52 — freedom of movement, including the right to enter and leave the country and not to be expelled or deported;
- Section 55 — equality of citizens;
- Section 56 — other rights and privileges of citizens.
Section 56(1): only citizens other than citizens who have dual citizenship may vote in elections for, or hold, elective public offices, or acquire freehold land. Section 50(1)(ba) reinforces the first of these, and section 51(1) confines the freedom-of-information right to citizens who do not hold dual citizenship. Section 56(3) allows Parliament to reserve further rights on the same basis. See dual citizenship explained.
Section 34 — rights between individuals
This is one of the most striking features of the Papua New Guinean Constitution. Subject to the Constitution, each provision of Division 3 applies, as far as may be:
- (a) as between individuals as well as between governmental bodies and individuals; and
- (b) to and in relation to corporations and associations (other than governmental bodies) in the same way as to individuals,
except where, or to the extent that, a contrary intention appears in the Constitution.
So the Basic Rights are not only a shield against the State. A private employer, a landlord, a company or an association may in principle be subject to them — and a corporation may in principle claim them. The qualifier “as far as may be” does real work: some rights, by their nature, only make sense against public authority.
Section 33 — the Division is a floor, not a ceiling
Nothing in Division 3 derogates from rights and freedoms under any other law. In particular, an Organic Law or an Act may provide further guarantees of rights and freedoms, and may further restrict the limitations that may be placed on them — including the limitations otherwise permitted under section 38.
Parliament may therefore give you more protection than the Constitution requires. It cannot give you less.
Who can bring a case
Section 57(1) is deliberately wide. A Basic Right is enforceable in the Supreme Court or the National Court — or another court prescribed by Act — on the court’s own initiative, or on application by any person who has an interest in its protection and enforcement, or, where the court thinks a person is unable fully and freely to exercise their rights, by a person acting on their behalf, whether or not by their authority.
Section 57(2) declares that the Law Officers, persons prescribed by Act, and any other persons with an interest (whether personal or not) in the maintenance of the Rule of Law have such an interest — without limiting who else may. See how to enforce a Basic Right.
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.