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[F.A.Q.] [Help]PNG Constitutional Planning Committee Report 1974 |
Constitutional Planning Committee Report 1974
A. DECLARATION OF FUNDAMENTAL RIGHTS AND FREEDOMS
1. The idea of human rights has developed over centuries in various countries of the world, largely as a result of the oppression of citizens by dictatorial governments and entrenched private groups. The "rights of man" became a slogan in struggles against injustices and indignities perpetrated by such governments and groups. In these struggles, attempts were made to set down the minimum rights that could be demanded by all citizens, by the very fact of being human, of the government that rules them.
2. In the late seventeenth century these ideas began to be incorporated in constitutional documents. In England, after the "Glorious Revolution" of 1688, the Bill of Rights of 1689 was adopted to preserve the people of the country from the re-emergence of arbitrary royal rule. The Bill of Rights set out what were described as "the ancient rights and liberties" of the people, which included freedom of election of members of parliament, freedom of speech and debate in parliament, freedom from cruel or unusual punishments, from excessive fines or demands for excessive bail, and the right to trial by jury.
3. The American revolutionaries included in their Declaration of Independence in 1776 a claim to "certain inalienable rights" including life, liberty and the pursuit of happiness". They incorporated in their Constitution defined rights to freedom of speech and the press, to a speedy and public trial by an impartial jury, the right to free exercise of religion, and the right of people to be "secure in their persons, houses, papers and effects against unreasonable searches and seizures". Certain important additional rights were added by amendments to the Constitution in the 1860's after the Civil War. These included the prohibition of slavery, and the protection from deprivation, without due process of law, of every person's life, liberty and property. Another of these amendments prohibited the denial to any person in the United States, of the equal protection of the laws.
4. In 1789, the French revolutionaries, having disposed of their king, laid down in the Declaration of the Rights of Man, the rights which they said had been denied ordinary Frenchmen under the kings. They declared that men are born and remain free and equal in rights; those rights being "liberty, property, security and resistance to oppression". They listed in particular, freedom of speech, of the press, of religion, and freedom from arbitrary arrest.
5. Other European States, such as Sweden in 1809, and Holland in 1815 included clear statements of human rights in their constitution not long after the French Revolution, and since then many other countries in all parts of the world have given recognition to basic human rights in their constitutions and other laws.
6. In the past, ideas about which are the most important human rights and freedoms have varied between people of different countries at a particular time, and between people of different generations in a single country. However, since the establishment of the United Nations Organisation, there has been general agreement internationally that there are a number of basic rights and freedoms which all people everywhere are entitled to have recognised. These include -
� the right to live;
� the right not to be tortured, or made a slave;
� the right not to be imprisoned without a fair trial in court;
� the right not to be subjected to arbitrary interference with privacy, family, home or communications;
� the right to freedom of thought, conscience and religion;
� the right to speak freely, to join an association, and to hold public meetings;
� the right to take part in the government of his country, directly or through freely chosen representatives;
� the right not to be arbitrarily deprived of one's property;
� the right to work, to free choice of employment and to just and favourable conditions of employment;
� the right to a standard of living adequate for the health and well being of each person and his family;
� the right to an education.
These and a number of other rights and freedoms have been set out in the Universal Declaration of Human Rights, which was adopted without dissent by the United Nations in 1948. The Declaration recognizes that the rights and freedoms it sets out are not unlimited - that the protection of the human rights of individuals and groups must be balanced against the interests of the people of a country as a whole, and against the rights and freedoms of other individuals and groups. It also recognizes that as well as having rights, all people have duties to the community in which they live, and must exercise their rights responsibly.
7. There are certain aspects of the Declaration, however, which to a significant degree limit its application to the domestic laws of states, and particularly those of emerging countries such as our own. Firstly, it makes no reference to the universally recognized distinction between the rights of the citizens of a country as opposed to those of foreign citizens within that country. This distinction is of great importance, as all countries give greater rights and privileges to their own citizens than to aliens, as we have pointed out in Chapter 4 "Citizenship".
8. Secondly, at the time the Declaration was made very few of the Third World countries were independent, and their particular circumstances were not sufficiently taken into account when the Declaration was drafted. The Declaration should be seen against the background of World War II in the aftermath of which it was conceived and adopted.
9. The Universal Declaration of Human Rights as such cannot be enforced by action in a court. Though it is true that some of its provisions set out accepted principles of international law, others simply represent basic humanitarian ideas, while a third category of rights is an attempt to establish new rules for the benefit of people throughout the world. Its main purpose has been to set a common standard of achievement for all peoples and all nations, so that individuals and institutions everywhere will "strive, by teaching and education, to promote respect for these rights and freedoms, and by progressive measures, national and international, to secure their universal and effective recognition and observances." It is therefore more a set of objectives than a document to which detailed reference can be made in relation to enforceable human rights provisions in constitutional documents.
10. We are only too well aware that the United Nations Organization is still far from achieving this purpose - that in a large number of countries many of the rights and freedoms set out in the Universal Declaration cannot be exercised by the vast majority of the citizens. This is so in both developed and developing countries. In a number of countries, basic human rights such as freedom from arbitrary arrest and imprisonment, freedom of expression and assembly, and protection from inhuman treatment are flagrantly disregarded by autocratic governments whose main concern is to entrench themselves in power.
11. In many new States however, well intentioned governments are simply unable to ensure that all of their citizens have enough food and clothing and reasonable shelter, since they do not have the resources to provide these necessities for all. In our own country, it will be a number of years yet before our government is able to provide education for all school-age children.
12. In framing our recommendations in Chapter 2 "National Goals and Directive Principles", we have taken full account of the need to give impetus to the achievement of economic, social and cultural goals such as the provision of an adequate standard of living for every family, education for all children and the opportunity to fully participate in all aspects of the life of the community and the nation. We do not feel that it is appropriate to deal with these matters in this chapter, as it is not possible to enforce this type of right in the same way as those which we have included here.
13. Today the majority of the nations of the world have incorporated in their constitutions many of the basic human rights which have come to be recognized internationally, and are included in such historic documents as the Universal Declaration of Human Rights.
14. Not all of these constitutional declarations of fundamental rights are enforceable, however. It has been said that some are more impressive in terms of literary style than in practical enforceability. A number of countries with a totalitarian system of government nevertheless have a ringing declaration of basic rights and freedoms included in their constitutions. On the other hand, the new states of the Commonwealth of Nations which have obtained their independence after the end of World War II, with few exceptions have included in their constitution human rights provisions which are legally enforceable ("justiciable"). India and Pakistan in the 1940s, Malaysia in the 1950s, Nigeria, Kenya, Zambia, Western Samoa and Nauru in the 1960s, and Fiji in 1970 - all have (or have had) similar constitutional provisions for the protection of civil and political rights, which can be enforced by a court order.
15. Although many of these new Commonwealth states have, in their short lifetimes, experienced considerable political change involving constitutional amendments of substantial character, in only one case has the "bill of rights" disappeared from the current constitution (Malawi). Even under military government the fundamental rights provisions of the constitution may be excluded from the suspension of parts of the constitution, as in Nigeria (although such provisions can no longer prevail over inconsistent laws).
16. Among those countries which do not have any fundamental rights or freedoms included in their constitution there are many which recognise them in their ordinary laws or have accepted them under international agreements. Canada, for example, passed a Bill of Rights as an ordinary Act of Parliament, in 1960, and Britain which does not have a formal written constitution, has adopted a justiciable international bill of rights by becoming a party to the European Convention on Human Rights of 1950. Australia too, is at present considering a Human Rights Bill, which was introduced into parliament late last year.
17. We Papua New Guineans are all too familiar with authoritarian governments, having been ruled by them for almost ninety years. The last years of colonial rule have, of course, been enlightened by world standards, but in earlier times the basic rights and dignity of our people were frequently suppressed or ignored.
18. It is true, of course, that the English common law and Australian statute law which we have inherited does at least theoretically, provide substantial protection of human rights such as protection from the intentional deprivation of one's life, freedom from arbitrary arrest, the right to a fair trial, freedom from arbitrary search of one's person or property, but until recently discriminatory local legislation and the lack of access to independent legal advice prevented our people from effectively asserting their rights. The situation was not improved by the fact that in most cases they were obliged to make any claim of breach of a right or freedom to a person who could not be completely impartial as he was an administrator as well as a magistrate. Even today most of our people are not aware of many of their rights, and are therefore unable to stand up for those rights.
19. However, Papua New Guinea does now have a specific law which provides protection of human rights similar to that which we have described above - the Human Rights Ordinance 1971. It was introduced into the House of Assembly by a private member of the House, the Rev. Percy Chatterton, MHA, soon after the enactment of the controversial Public Order Ordinance 1970. That law allowed the Government ("the Administration" at that time) to restrict processions and public meetings, and included a number of new offences relating to demonstrations and other forms of civil disobedience. It gave rise too much strong criticism to the effect that it unjustifiably limited basic democratic freedoms, and that it was an attempt to suppress the efforts of Papua New Guineans seeking to recover land rights on the Gazelle Peninsular. Thus, the Human Rights Ordinance may be seen as a reassertion of the basic democratic freedoms in the light of a move by the Administration to impose significant restrictions upon the fundamental rights and freedoms of Papua New Guineans.
20. The Human Rights Ordinance protects a total of eleven rights and freedoms, most of which are protected by similar provisions in the constitutions of new Commonwealth states such as those mentioned above. It is in fact based on the human rights provisions of the Constitution of Nauru, which are themselves similar to those of Nigeria.
21. These rights and freedoms are -
(1) the right to life;
(2) the right to personal liberty;
(3) freedom from slavery and forced labour;
(4) freedom from inhuman treatment;
(5) the right to protection of property;
(6) the right to protection from arbitrary search and entry on premises;
(7) protection of law to ensure no imprisonment except on a proper charge and after a fair trial;
(8) freedom of thought, conscience and religion;
(9) freedom of speech and the right to publish;
(10) freedom of peaceful assembly and association; and
(11) freedom of choice of employment.
22. Under the Ordinance, all of these rights are enforceable by the Full Court of the Supreme Court, which may act upon the complaint of a person who claims his rights or freedoms have been denied, or on an application by the Public Solicitor or the Secretary for Law on behalf of such a person. The Full Court may then make whatever order it thinks is appropriate in the circumstances of the case.
23. The submissions we have received from our people in various parts of the country make it clear that the protection of human rights in an independent Papua New Guinea is widely regarded as a matter of high priority. The views expressed to us have been heavily in favour of incorporating the substance of the provisions of the Human Rights Ordinance in our Constitution and of making these provisions legally enforceable in the same way as they are under the Human Rights Ordinance.
24. In recommending the inclusion of the eleven rights and freedoms in the Ordinance, with certain modifications, and the addition of four further rights and freedoms we have given due weight to the main arguments against taking this course.
These seem to be -
A number of British and Australian politicians, lawyers and political writers have for many years argued that there is no need to set out the basic human rights in a Commonwealth country's constitution, because these rights are protected anyway if there are independent judges who apply the rules of law which have been developed in England over hundreds of years (the common law). These people argue that because not many of the countries which have human rights and freedoms set out in their constitution (and as we have said, most countries in the world do) have succeeded in adequately protecting these rights and freedoms, putting these rights into the constitution doesn't really achieve anything.
There is little to be gained by putting human rights and freedoms in the Constitution because, in times of crisis, when they are most threatened, the Executive is likely to override them by using emergency powers. This has been the experience of a number of states in recent years.
Writing human rights into the Constitution may tend to over-emphasize the rights of individuals. The people of this country have not only rights, but duties as members of their new nation. Having individual rights included in the fundamental law of the country could embarrass the government in the future if it wants to emphasize the duties of individuals. It could also make it more difficult for the government to make sweeping economic changes in the interests of the majority but to the detriment of a privileged minority.
25. We believe that there are counter arguments which outweigh these arguments.
These are -
Although many basic human rights are already set out in Papua New Guinea's Human Rights Ordinance, this is only an ordinary law. It can be changed at any time if the government of the day passes a new law in the normal way - that is by obtaining the agreement of a majority of the members of the House of Assembly who are present in the House at the time when a vote on the new law is taken. If these rights are included in the Constitution they would be harder for a government to change, and ought therefore to be better protected.
Government ministers, members of the House of Assembly and ordinary people would be more conscious of the effect of new policies or laws on basic human rights, especially if the part of the Constitution in which the rights are set out becomes widely known. This should make it less likely that policies or laws which cut across these human rights would be accepted either in Cabinet or in the House of Assembly.
In framing the provisions for inclusion in the Constitution, full account can be taken of the need to allow for future programmes on which the Government of the day may well wish to embark in the interests of the great majority of the people. The experience of other new States with constitutional 'bills of rights' is likely to be of great assistance in this respect.
26. We recommend that all eleven rights and freedoms set out in the Human Rights Ordinance be included in the Constitution, with a number of important modifications (which we set out below). In addition, four new rights and freedoms should be included, namely -
� freedom of movement;
� the right to privacy;
� the right to stand for election and to vote; and
� freedom of information.
The modifications to the Human Rights Ordinance provisions which we recommend fall into four main categories - two of which broaden the scope of the rights and freedoms protected under the Ordinance, whilst the other two involve adding further qualifications to them:
Firstly we propose the addition of a number of provisions under the head "Provisions to secure protection of law" to give additional rights and protection to individuals. These include the right to appeal in accordance with a law which sets out permissible grounds of appeal; the right to be treated with humanity and respect whilst in a corrective institution; and the need for young persons to be kept apart from adult prisoners in corrective institutions.
Secondly, our recommended provisions would make far more meaningful the protection of the freedom of choice of employment - by narrowing the scope of the exception clauses in the Ordinance.
Thirdly, we propose qualifying a number of rights to take account of the distinction between the respective rights of citizens and of non-citizens in accordance with the philosophy which underlies our recommendations on citizenship. (When the Ordinance came into force there were of course no Papua New Guinean citizens so that this distinction could not be made). Thus we recommend that some of these constitutional rights be made exclusive to citizens (for example, the right to stand for election to public office and to vote, freedom of movement, freedom of information, and protection of property). We do not necessarily suggest that non-citizens be left without any protection in respect of these rights and freedoms. We simply wish to ensure that parliament has an unrestricted power to pass appropriate legislation in regard to non-citizens' rights in these areas in the same way as the parliaments of many other countries, including Britain and New Zealand for example, are empowered to do. Our reasoning is set out in detail below in relation to the particular rights and freedoms mentioned above.
In respect of certain other rights and freedoms, such as freedom of speech, freedom of assembly and association, and freedom of choice of employment, non-citizens as well as citizens are to be given protection, but allowance has been made for parliament to pass a law which specifically limits these freedoms insofar as non-citizens are concerned provided that law is "reasonably justifiable in a democratic society." (The choice of the clause "reasonably justifiable in a democratic society" is explained below).
We wish to stress that we have recommended that eight of the most fundamental human rights and freedoms, namely -
the right to life;
the right to personal liberty;
freedom from inhuman treatment;
freedom from forced labour;
the right to protection from arbitrary search and entry to premises;
the right to protection of law;
freedom of conscience, thought and religion; and
the right to privacy;
should apply equally to citizens and non-citizens, and that we consider the limitations upon the rights and freedoms of non-citizens which we have allowed for should, if they are imposed in the interests of our citizens, be brought into effect in a reasonable manner, on the basis of specified principles.
Finally, we have added further qualifications to a number of rights, particularly the right to protection from arbitrary deprivation of property, to ensure that the Government of the day is not unreasonably restricted in the measures it may take in relation to these rights in the interests of the community as a whole. These additional qualifications have been found necessary in a number of other developing countries, and we have drawn upon their experience in this regard.
Exceptions: "Reasonably justifiable in a democratic society"
27. We recommend that this phrase, which is used in the Human Rights Ordinance in relation to exceptions to the rights and freedoms enunciated in that law, be retained. Whilst it is true that it presents judges with difficult problems of interpretation, since deciding the precise boundaries of democracy may perhaps be said to be more a matter for political philosophers rather than for lawyers, it has several advantages.
It provides flexibility which is essential in relation to many of the rights and freedoms protected, since much depends on particular circumstances, and in a new nation such as Papua New Guinea we believe it is essential to make adequate provision to enable the legislature and the executive to take appropriate action in situations which it is difficult to foresee at present.
Furthermore, by using the word "justifiable" rather than "necessary" or "required" as in some other constitutional bills of right, the courts will not be obliged to substitute their own view of the way in which the legislature or the executive ought to have dealt with the particular situation. The courts will simply have to decide whether the legislation or administrative action in question is justifiable in a democratic society.
Finally, the fact that the same words have been used in a number of other constitutions in Commonwealth countries, means that the interpretation given to these words by judges in countries comparable with Papua New Guinea can be taken into account by our judges when they are required to make decisions as to whether or not a particular law or administrative action falls within the exception clause.
28. As a safeguard against these exception clauses being used by the Government of the day to undermine the general principles laid down in respect of particular rights and freedoms to be protected, we have made provision in Recommendation 18 for a law of this kind to be effective only during a State of Emergency or if it is passed by a three-fifths majority of the total membership of the Parliament.
29. Not all of the rights and freedoms we have recommended for inclusion in the Constitution are qualified by these broad exception clauses. Some are qualified only by certain specific exceptions, e.g. the right to life, and to personal liberty, the right to protection of law, and protection from forced labour. One right - that of protection from inhuman treatment - is not qualified at all.
30. It is, of course, implicit in our recommendations that the Human Rights Ordinance should be repealed as from the date on which the Constitution comes into force.
31. We have considered with care the question as to whether the form in which the human rights and freedoms are set out in the Ordinance should be retained, or whether it would be preferable to take the course which Canada in its Bill of Rights of 1960, and Trinidad and Tobago in its 1962 Constitution took, namely to set out the rights and freedoms simply and briefly, leaving the qualifications to them unstated.
32. We believe it is significant that almost all of the new Commonwealth states which have incorporated specific fundamental rights provisions in their constitutions have preferred to set out in detail the qualifications to those rights as has been done in the Human Rights Ordinance and as we propose should be done in respect of the constitutional provisions we have recommended.
33. The Constitution Commission of Trinidad and Tobago, which reported to the Governor General of that country in January 1974, after spending two and a half years reviewing the Trinidad Constitution, strongly recommended that the new constitution follow the pattern which we have proposed. It said, at page 19 of its Report, that the effect of the unqualified statement of fundamental rights and freedoms set out in the 1962 Constitution was indeed to produce a brief and apparently simple statement of rights and freedoms. But the brevity and apparent simplicity were misleading. Many people were shocked to find out that rights and freedoms set out in absolute terms were subject to important limitations the extent of which was nowhere defined. This led some people to wonder, perhaps cynically, whether there was any meaning to these rights and freedoms at all.
34. "We are convinced", the Commissioners said, "that it is wrong to set out rights and freedoms in absolute terms, defining them as fundamental, and then to provide that parliament may pass laws expressly declaring that they shall have effect notwithstanding those rights and freedoms. The concept may well be seriously questioned if parliament finds it necessary or prudent to pass such laws with any frequency. Indeed, the position in our view is made worse when some of them, far from being restrictive, are plainly beneficial in that they make available social and economic advantages never before enjoyed". The Commissioners concluded: "we think, therefore, that it is better to define the rights and freedoms not in absolute but in qualified terms so that everyone should know and understand that they are limited in scope".
35. Trinidad and Tobago having had experience with the short unqualified manner of stating fundamental rights and freedoms, and found it unsatisfactory, whilst many other States, including Papua New Guinea, have found the detailed form which we propose quite suitable, we believe our decision in this regard is well founded. It is also consistent with the approach we have adopted throughout our proposals, namely to try to make our recommendations as specific and clear as possible, so that the room for argument as to the meaning of particular provisions is minimised.
36. The history of Australia's Constitution shows how apparently simple, straightforward constitutional provisions can be the source of much litigation. We need only mention Section 92 which provides that "Trade, commerce and intercourse between the States shall be absolutely free". Over the seventy three years since Federation there have probably been more High Court cases concerning the meaning of this section than there have in relation to any other single section of the Constitution.
THE CONSTITUTIONAL DECLARATION OF FUNDAMENTAL RIGHTS
AND FREEDOMS
37. This Declaration should, we recommend, set out the following fundamental rights and freedoms which are to be protected under the Constitution -
1. THE RIGHT TO LIFE
2. THE RIGHT TO PERSONAL LIBERTY
3. FREEDOM FROM FORCED LABOUR
4. FREEDOM FROM INHUMAN TREATMENT
5. FREEDOM FROM ARBITRARY SEARCH OR ENTRY
6. THE RIGHT TO PROTECTION OF LAW
7. FREEDOM OF CONSCIENCE, THOUGHT AND RELIGION
8. FREEDOM OF EXPRESSION AND PUBLICATION
9. FREEDOM OF ASSEMBLY AND ASSOCIATION
10. FREEDOM OF EMPLOYMENT
11. FREEDOM OF MOVEMENT
12. THE RIGHT TO PRIVACY
13. THE RIGHT TO STAND FOR ELECTION TO PUBLIC
OFFICE AND TO VOTE
14. FREEDOM OF INFORMATION
15. FREEDOM FROM DEPRIVATION OF PROPERTY
1. THE RIGHT TO LIFE
38. The first and most basic human right is that to life itself. Our recommended provision is almost identical with that in the Human Rights Ordinance. No-one is to be deprived of his life intentionally, except under the sentence of a court for an offence which carries the death penalty. Certain exceptions to this principle are provided for. If death results from defending a person from violence or in the course of carrying out a lawful arrest, or from preventing the escape of a person who has been lawfully imprisoned, the provision does not apply. Nor does it apply to a situation where death occurs in the course of suppressing a riot, or preventing a person from committing a criminal offence or if it is due to a lawful act of war. However, the person who caused the death could still be punished under the criminal law in any of these circumstances.
2. PROTECTION OF PERSONAL LIBERTY
39. Again following closely the provisions of the Human Rights Ordinance, we recommend that the personal liberty of all people be safeguarded, subject to certain specific exceptions. No-one should be arrested or imprisoned except under a written law, in one or other of the circumstances set out in the recommendations. For example, a person can be arrested if he is reasonably suspected of having committed a crime. He can also be arrested or imprisoned under an order of a court.
40. Whenever a person is arrested or held, he must be informed promptly, in a language he understands, of the reasons for his arrest or detention, and given the opportunity, whenever practicable, to contact a member of his family or a personal friend, and to seek advice from a lawyer of his choice without delay. He should be able to speak with any of these people in private. He must be brought before a judge or magistrate as soon as is practicable after his arrest or detention, and may not be further held in custody in connection with the offence except by order of a judge or magistrate.
41. We recommend that two new provisions be added to those included in the Human Rights Ordinance. The first of these is to ensure that a person who is arrested or held for an offence other than treason or wilful murder, is treated as being entitled to bail at all times from his arrest until his conviction unless it is necessary, in the interests of justice, that he be held in custody pending his trial. The onus should be on the police to show why a person should not be granted bail rather than the other way about.
42. We further recommend that if a person is unlawfully arrested or held by another, he should be entitled to compensation from that other person. This proposal, we believe, accords closely with the widespread custom which requires compensation to be paid where there has been a wrong done to an individual or group.
3. PROTECTION FROM FORCED LABOUR
43. This recommended provision is also very similar to a section of the Human Rights Ordinance (which we refer to below as "the Ordinance"), though we have proposed that the use of the word "slavery" in the Ordinance be dropped, as it is really encompassed by the words "forced labour". We propose that "forced labour" be defined so as not to include -
� labour to be performed in a corrective institution under a court order;
� labour which a soldier or policeman is required to perform in the course of his duties, or which a conscientious objector to military service may reasonably be required by law to carry out; or
� labour reasonably required, with the approval of a recognised local authority exercising governmental functions in the area in which a person is required to work, as part of normal communal or civic obligations.
The last of these provisions would for example enable local authorities to continue to require people in their area to carry out road maintenance work.
4. PROTECTION FROM INHUMAN TREATMENT
44. We recommend that the section in the Ordinance which prohibits torture, and treatment or punishment that is cruel, inhuman or degrading, be incorporated in this chapter of the Constitution. Some of our people are well aware of instances of torture and other inhuman treatment which has been meted out by successive colonial administrations, and in traditional society also. We firmly believe that these practices should be specifically outlawed in the Constitution.
5. PROTECTION FROM ARBITRARY SEARCH OR ENTRY
45. Another fundamental personal freedom is that which involves protection from having one's person or property searched, or one's house or other premises entered by other people, without consent. We recommend that the provision in the Ordinance which safeguards this freedom, subject to certain exceptions (some of which are additional to those in the relevant section of the Ordinance) referred to below, be adopted for the Constitution.
46. The exceptions include some which are specific and others which are very general. The specific exceptions which are at present included in the Ordinance allow for a law providing that a government officer or agent or an officer of a public authority may enter premises where it is reasonably necessary to inspect them in relation to a rate or tax, or to carry out any work on any property on the premises which is owned by the government or the authority. Allowance is also made for a person to be searched or have his house entered in accordance with a court order. To these we propose that certain additional exceptions be added such as provision for a law to give authority, under a warrant for a search issued by a judge or magistrate on reasonable grounds, describing the purpose of the search.
47. The general exceptions allow for laws to be passed which made provision which is "reasonably justifiable in a democratic society in the interests of defence, public safety, public order, public health or public welfare, or to protect the rights or freedoms of other persons".
6. PROTECTION OF LAW
48. This is the equivalent of the "due process" provision in the United States Constitution. We recommend the inclusion of this provision of the Ordinance subject to certain modifications in the light of the two and a half years' experience of the operation of the Ordinance which we have had.
49. In essence, this provision ensures that a person can only be convicted of an offence which is set out in a written law; that if charged with an offence he will be given a fair, pubic hearing within a reasonable time by an independent and impartial tribunal; that he will be able to obtain the assistance of an interpreter and, if this is practicable, the advice of and representation by a lawyer (including an officer of the Public Solicitor's office if the person concerned cannot afford to pay the fees of a private lawyer, and the case is one which justifies the granting of legal assistance by the Public Solicitor).
50. The recommendation specifically provides that a person should be presumed innocent until he is proved guilty according to law, that no person should be compelled to be a witness against himself, and that no person can be tried for an offence of which he has already been convicted, acquitted or pardoned. These provisions are already included in the Ordinance. However, we recommend a number of additional protection of the individual which we believe are important if Papua New Guinea's system for administering justice is to be one which in fact dispenses justice. These include safeguarding the right of every person convicted of an offence to an appeal to a higher court or tribunal; ensuring that people who are deprived of their liberty are treated with humanity; that juveniles who are under 16 years of age are not held in the same part of a corrective institution as are adult prisoners (some of whom would be hardened criminals); and that a person convicted of an offence should not be sent to an institution away from the area in which his relatives live, except for good reason.
51. We recognize that some of the rules for a fair trial which are laid down in this recommendation are not appropriate for hearings in the newly established village courts, as these rules have been developed under the English common law which we have inherited. We have therefore proposed that the powers and procedures of village courts as laid down in the recently passed Village Courts Act (or in similar legislation) should not be invalid to the extent that these conflict with the rules laid down here, unless those powers or procedures are against principles of natural justice. (One of these principles is the right to be heard, and another that the tribunal which hears a case should not be biased in favour of one side).
7. FREEDOM OF CONSCIENCE, THOUGHT AND RELIGION
52. This right is widely regarded as a basic "civil right". Other such rights (which follow this one) are "freedom of expression and publication" and "freedom of assembly and association". They are clearly fundamental to any democracy. Our recommendations concerning them follow the equivalent provisions in the Ordinance very closely.
53. All of these rights have some exceptions in common; they can all be qualified with the consent of the person concerned, and they can also be qualified in the interests of defence, public safety, public order, public health or public welfare, though as we have stated, a law which is dependent upon this qualification for its validity must, in normal times, be passed by a three-fifths majority of the members of parliament. Again, these rights may be limited insofar as they are reasonably required for protecting the rights and freedoms of others. These limitations are not, however, valid (and therefore effective) unless they are "reasonably justifiable in a democratic society".
54. The freedom of conscience, thought and religion which we recommend gives every person in the country freedom either alone or with others, and both in public and in private, to practise his religion or belief in worship, teaching or observance. However we propose that no-one should be compelled at an educational institution to receive religious instruction in a religion other than his own.
55. We recommend certain specific qualifications on religious freedom. These include provisions in a law for the protection of the rights and freedoms of other persons from interference by people who follow another religion. They also allow for the provision of courses of instruction, in a place of education, which include the fundamental doctrines of Christianity, the doctrines of other world religions, and the ancient religious beliefs of our own peoples.
8. FREEDOM OF EXPRESSION
56. One of the great principles on which democracy rests is the right to differ on any topic of discussion, be it social, economic, political, cultural or religious. People view any particular question or situation in different ways, and we firmly believe that they should have the right to express their own views, within very broad limits, on any particular matter.
57. Not only do we believe it to be essential that differences be freely expressed, but we also hope that the right to free speech will provide a basis for settling the inevitable differences between us which will continue to arise after independence, without resorting to force. We therefore believe that in principle every citizen should be free to criticise the policies of the Government of the day. The media have a particular responsibility in this regard, as unless those who wish to express independent opinions are reported in the media their effectiveness is likely to be much reduced, and the opportunity for meaningful debate of important public issues may be lost.
58. The formation and expression of public opinion is vital to the kind of participatory democracy we believe our people want. We hold that opposing views should be free to attract support, and to compete in a healthy atmosphere. Only then do we feel there is reason to hope that the activities of the government can be discussed freely and clearly understood. The views of the people can then have some effect on the policies of the government.
59. In framing our recommendations we have closely followed the equivalent provision in the Ordinance which makes particular reference to freedom of the press. Of course, "freedom of the press" does not mean freedom without responsibility. In an emerging nation such as ours, we believe the media have a very important responsibility to report news accurately, and to give equal opportunities and facilities for the expression by citizens of opposing or differing views.
60. We have added certain additional qualifications to this right of free expression to enable legislation to be passed for the effective prevention of disclosure of information received in confidence (and here we have in mind official information particularly), and for reasonable restrictions to be placed upon the freedom of non-citizens to express their views publicly. The latter provision is necessary, we feel, because of the very considerable influence which outsiders are able and will for some years continue to be able to exercise on the formation of public opinion among our people. This influence can, of course, be beneficial, but it can also be detrimental, and as non-citizens bear no responsibility for the future development of the country, and often have their own vested interests to protect, we feel that our recommended qualification is essential. We would stress, however, that any law restricting the freedom of expression of non-citizens would have to be reasonably justifiable in a democratic society if it is to be valid. Reasonable restrictions on their freedom of expression could also be placed on constitutional office-holders, public servants, and members of the disciplined forces.
9. FREEDOM OF ASSEMBLY AND ASSOCIATION
61. We believe that if we guarantee freedom of expression it follows that we should also guarantee freedom of assembly and association. Our recommendation safeguards the right of every person to join a political party, a trade union or any other association or group. People of like mind, such as members of a political party, or with similar interests, such as trade unionists, should be able to join together to work for common purposes.
62. For a government to arbitrarily restrict its citizens' fundamental human right of freedom of assembly and association would, we believe, be to indicate clearly an intention to turn away from democracy, as it is generally only through organized groups that consistent pressure can be effectively applied to a government by those who are critical of its policies.
63. We fully appreciate that there are likely to be times other than during a State of Emergency when the holding of a large public meeting might endanger public safety - for example, at a time when emotions are running high and there are serious divisions among the people in a particular city or other area of the country. The exception provisions in our recommendation allow for such situations, and establishing this constitutional right would not, therefore, prevent reasonable measures being taken to deal with these situations.
64. Our proposed section is based on the equivalent one in the Ordinance, but we have made special provision for the registration of political parties, industrial organisations and other associations or organisations, and for prohibiting any association from placing restrictions based on race or colour on the admission of members to an association. As in the case of the protection of freedom of expression, reasonably justifiable restrictions could also be placed on the freedom of assembly and association of constitutional office-holders, public servants, members of the disciplined forces, and non-citizens.
10. FREEDOM OF EMPLOYMENT
65. We believe that the principle that a person should be able to freely choose his employment is also important, and that it should be incorporated in the Constitution. However, it is obviously essential to draw a distinction between citizens and non-citizens in this regard, and this we have done. It has been government policy for a number of years now for preference to be given to Papua New Guineans in relation to employment opportunities both in the public and private sectors, and this policy should certainly continue. The role of non-citizens is to work in positions for which there is no Papua New Guinean with the necessary skills available.
66. The qualifications of this freedom which are included in the Ordinance are so wide as to make the relevant provision virtually meaningless. We have therefore modified the exception clauses so that they provide for what we see as no more than reasonable qualifications of the basic right, but which provide the necessary flexibility to enable the Government of the day to give preference to underprivileged groups.
11. FREEDOM OF MOVEMENT
67. This safeguard of the right to move is not provided by the Ordinance, but we believe it is vital in any free society. There has been much public discussion of this issue in Papua New Guinea in recent years, with resentment being expressed in some quarters concerning substantial numbers of people from other parts of the country congregating in particular towns or other areas. We fully recognise the seriousness of the problems involved, especially in urban areas, but we feel that the principle that all citizens should be free to move throughout the country, provided they respect the rights and interests of those in the places to which they go, is widely accepted among our people, and should be entrenched in the Constitution. People who live in areas where there is little opportunity for participation in the national economy should have the opportunity to move to another area to seek employment.
68. We also believe that the right of citizens to enter and leave the country freely is an important principle, and have provided for this. Specific provision should, however, be made to allow for legislation restricting a citizen's freedom to leave the country if he has not fulfilled a legal obligation. Our recommendation has been made accordingly.
69. We have recommended limiting the scope of this protection of freedom of movement to citizens, for much the same reasons as a number of other new Commonwealth states such as Nigeria and Kenya have done so. Although some states do extend this constitutional right to foreign citizens, they have almost invariably qualified it to allow legislation to be passed specifically limiting the freedom of movement of foreign citizens.
70. All countries, in the interests of their own citizens place restrictions on the entry of foreign citizens to their territory, and upon the period during which they may remain in the country, though of course some states are much more strict in this regard than are others. All countries also have legislation which provides for the deportation of foreign citizens in a range of circumstances which usually includes a number of situations besides that in which a foreign citizen is found guilty of a criminal offence. For example, under United Kingdom legislation a foreign citizen may be deported whenever the Home Secretary "deems it conducive to the public good".
71. We believe the right to limit the movement of foreign citizens is part of a country's sovereign rights, and should be retained as such. This is not to say that we consider that foreign citizens should be unreasonably restricted in regard to the parts of the country to which they may travel. We simply believe that the full power of parliament to make appropriate laws to limit the movement of non-citizens in the interests of all Papua New Guinean citizens must be retained.
72. We further propose that provision be made to allow for reasonable limitations to be placed on the movement of public servants or members of a disciplined force.
12. THE RIGHT TO PRIVACY
73. Another new right which we recommend should be included in our constitutional Declaration of Fundamental Rights and Freedoms is the right to privacy in respect of one's family life, home, communications by telephone and correspondence. This right is, of course, closely linked with the right to freedom from arbitrary search and entry, and should be seen as complementary to it. The public controversy which occurred in 1972 in relation to the tapping of telephones highlighted the danger to democratic freedoms which the recording by police or other government officials, of private conversations can pose. We believe the constitutional provision which we recommend here will reinforce the Private Communications (Telephone Tapping) Act 1973, which was passed by the House of Assembly to limit much more strictly than previously official power to record telephone conversations.
74. We recognise that the interests of the community must be balanced against the right of individuals in regard to this, as well as other human rights and freedoms. Accordingly, we have recommended that the right to privacy be subject to the general exception clause which allows for a law to be passed which would otherwise be contrary to this provision if it is a law which is reasonably justifiable in a democratic society in the interests of defence, public safety, public order, etc; or for the protection of the rights and freedoms of other persons. As we have already stated, such a law would, however, need the support of three fifths of the members of the National Parliament, unless it was passed during a State of Emergency.
13. THE RIGHT TO STAND FOR ELECTION TO PUBLIC OFFICE AND TO VOTE
75. As we have indicated earlier, both in our "Introduction" and in Chapter 2, "National Goals and Directive Principles", one of the main themes which runs through the constitutional provisions we recommend is that of participation by our people in all aspects of the life of the country. We see as a major factor in ensuring that our people are able to be meaningfully involved in their own development the effective functioning of the system of elections, at all levels of government.
76. In Chapter 6 "The Legislature" we have made a number of recommendations designed to ensure that regular, fairly conducted elections are held throughout the country. However, we believe it is important to include among the fundamental rights safeguarded here, the right of every citizen to have the opportunity without unreasonable restriction, to take part in public affairs, either directly or through freely chosen representatives. Each citizen should be able to vote and be elected to public office, at genuine, periodic elections in which all adults are able to participate, and held by secret ballot. We have made special provision to allow for assistance to be given to voters who are illiterate or who for any other reason cannot complete their ballot paper without help.
77. To emphasize the need for more women to be involved in public life, we have specifically provided that women are entitled to hold public office and to exercise all public functions in accordance with law, on equal terms with men, without discrimination.
14. FREEDOM OF INFORMATION
78. For our citizens to be able to participate effectively in the public affairs of this country, it is essential that they have access to official information. Without information as to governmental activity a person cannot make a meaningful contribution to discussion of the issues involved in government policies and programmes. The degree to which citizens are able to fully participate in debate on the public affairs of the country will be a good measure of the extent to which our system of government is truly democratic.
79. Governments in many countries fail to communicate effectively to their people the actions they are taking or contemplating, and the problems which face them. Sometimes this is due to sheer inefficiency on the part of the government information office but sometimes it is a case of the government wanting to keep from the voters the truth about matters which might cause a loss of support for the government if they were widely known.
80. In developing countries such as Papua New Guinea, it is an unfortunate fact that often foreign businessmen know far more about the actions and policies of the Government than do all but a select few of its own citizens. Thus these business interests are in a position to exercise influence on the government without any reaction from nationalist groups being felt by the Government until it is too late for it to take any positive action in response to such reaction.
81. We have therefore recommended that a further civil right - that of freedom of access to official documents - be included in the Constitution, subject to appropriate qualifications which take account of the need for such secrecy as is reasonably justifiable in a democratic society in respect of matters such as -
� those relating to national security and relations between Papua New Guinea and foreign states;
� national economic interests and the legitimate economic interests of communities and individuals;
� minutes of meetings and associated papers of the National Executive Council and of such other governmental authorities as are specified in a law;
� incomplete official reports and memoranda;
� parliamentary papers (not, for example, Hansard) which are privileged;
� the prevention, investigation and prosecution of crime; and
� maintaining privacy, the safety of individuals and decency.
82. From our own experience, we fully appreciate the need for confidentiality in the preparation of reports for government and parliament, but once a report is completed it should be readily available to the general public.
83. Our recommended provision is similar to part of a constitutional enactment, the Freedom of the Press Act, which has been in force in Sweden since 1812, and is part of the basic framework of the democratic freedoms enjoyed by Swedish citizens. We have further recommended that provision be made by law to establish procedures by which citizens may obtain ready access to official information. It is obviously important that not only the principle of publicity of official documents be firmly established but that the procedures adopted for making that principle effective be simple and widely known.
84. Our final proposal under this head is that as a step towards ensuring that official information is used responsibly by the press in the interests of Papua New Guinean citizens, the managing editor of any newspaper, magazine, etc., published in this country must be a citizen. Furthermore that person must accept responsibility for any breach of the law in a publication produced by the enterprise of which he is managing editor. Today in democratic states the threat to a free press and to a many-sided discussion of public affairs does not come only, or even primarily from the State authorities. Often, in even higher degree, it comes from other powerful forces in society, notably economic groups such as multi-national corporations. In many States, also, newspapers are owned by a few monopolistic groups. The South Pacific, including Australia, exemplifies this situation. Our proposal that the managing editor of a newspaper or magazine produced here be a citizen and take full responsibility for publications is designed to try to limit the influence of these powerful groups and to orient the press towards serving the best interests of our own people.
15. PROTECTION FROM DEPRIVATION OF PROPERTY
85. In the days of the French and American Revolutions and throughout the nineteenth and much of the twentieth century, great stress was laid on property rights as being among the most fundamental of human rights. This was part of the political philosophy of laissez-faire which was dominant in the thinking of Western societies until quite recently.
86. With the emergency of many new states in which the vast majority of the people have relatively few property rights to protect, whilst a small number of privileged people, both non-citizens and citizens, own the bulk of rural and industrial property, nationalist governments in many countries have regarded it as essential that positive action be taken to redistribute wealth more equitably. To do so, however, has been a daunting task, and some of these countries, particularly new Commonwealth states, have found that constitutional provisions have limited their ability to acquire foreign owned property and have also been instrumental in obliging them to pay very substantial sums, on strict conditions, as compensation for the property they have acquired. This in turn has restricted the ability of the governments of these states to carry out programmes designed to achieve a fairer distribution of their resources and of the benefits obtained from their use.
87. Countries of the Third World have become increasingly concerned by, and resentful of, the extent to which giant foreign corporations are dominating their economies and obtaining massive profits from operations in their countries. This situation was clearly evidenced at a recent Special Meeting of the United Nations to consider the need to drastically change the present international economic order. We in Papua New Guinea are all too familiar with the extent and effects of the present foreign control of our economy, as we have indicated in Chapter 2. Our own people are, however, more fortunate than those in many other new states in that most still have their own land, their rights to which they rightly intend to protect most vigorously.
88. After very careful consideration we have decided to recommend that the constitutional protection of property interests should be limited to our own citizens. The interests of foreign citizens can be protected in a number of ways by the Government of the day - by legislation such as that proposed for the establishment of the National Investment and Development Corporation, by agreement between the government and particular enterprises, or by a general law concerning a certain type of property. Our aim is to give the Government of the day sufficient flexibility to deal with the acquisition of foreign owned property and payment for it in an appropriate way, according to the particular circumstances with which it is faced. We believe that this view is in line with the position taken by the great majority of countries of the Third World.
89. The Land Acquisition Bill 1974, which is at present before the House of Assembly, is a good example of the kind of legislation which we believe our government ought to be able to put forward without having the problem of a constitutional restriction on its legislative power. In such circumstances there are certain to be strong political pressure brought o bear on it by foreign interests, and these will undoubtedly limit the government's freedom of action in any event. International law may also have a bearing in some cases.
90. Apart from the limitation of its scope to Papua New Guinean citizens, the provision we recommend is somewhat similar to the equivalent section of the Ordinance. However, there are two other significant differences between the respective provisions. The first is that instead of using the phrase "on just terms" in respect of the power to deprive a person of his property (which is identical to that used in section 51 (xxxxi) of the Australian Constitution) we have preferred to use the phrase "in accordance with principles of justice". This latter phrase we propose should be interpreted so as to give full weight to the National Goals and Directive Principles in the Constitution, to the national interest (and in particular to the expression of that interest by parliament) as well as to the interests of the person deprived of his property. The effect of this recommendation should be that the courts will not simply follow precedents from Australia in assessing whether or not laws providing for the payment of compensation for acquired property are valid, but will give weight to the interests of the people of the country as a whole, and in particular, to parliament's interpretation of those interests, as well as to the interests of the individual concerned.
91. A further difference between our recommended provision and that in the Ordinance is that we have added a number of additional qualifications to the right to compensation for property acquired by the State. As mentioned above, we have done so in light of the experience of a number of other new states which have had cause to amend their equivalent human rights provisions to take account of circumstances which have arisen after Independence. It should be remembered that the Human Rights Ordinance can easily be amended, whereas to amend the constitutional provision we propose would require a special procedure, and the support of a two-thirds majority of the members of the National Parliament.
B. DECLARATION OF FUNDAMENTAL OBLIGATIONS
92. As well as entrenching in our Constitution the fundamental rights and freedoms which we recommend should be protected, we believe that certain basic obligations should also be incorporated in the Constitution as duties which all people in this country should accept if our goals are to be achieved.
93. Man's growth is based on his abilities and his personality, and how he uses and expresses them. We often assert that it is a person's right to do something and that no man or authority should interfere with that right unreasonably. We say that it is a motorist's right to drive his vehicle on a public highway. However, that right has to be exercised with the necessary restraints so that the motorist does not make difficult the exercise of the same right to use the road by other motorists or people on foot. In other words, the motorist has the obligation to drive safely, by obeying the laws of the road.
94. Before there were any written laws in Papua New Guinea the unwritten constitutions of our various communities were based on the acceptance of the concept of mutual responsibility. Our responsibilities to each other and to our society stem from the recognition that in the long run the extent to which our rights and freedoms, whether they are of a social, spiritual, political or economic nature, are protected, will depend on the extent to which we recognise and respect the rights and freedoms of others.
95. These obligations or duties may be divided into different categories. Here we have divided then into constitutional, political, social and economic obligations. This categorization is artificial and is used for convenience only. We recommend that they should not themselves be legally enforceable, but that as in the case of the National Goals and Directive Principles, they should guide the courts in their interpretation of the Constitution or any law, and also the government in framing its policies.
1. Constitutional Obligations
96. Every person in Papua New Guinea whether he is a citizen or not, is obliged to uphold and obey the laws of our country. Our Constitution will become our fundamental law. All persons are expected to respect it and to act in accordance with its spirit. The Constitution should be a source of inspiration, freedom and justice for all of us. Respecting and acting in the spirit of the Constitution should not be a burden but a duty which all who live in our country should be glad to be able to carry out.
97. There may be times when an individual will be faced with the alternatives of either fulfilling his constitutional or legal obligations against his better judgement, or pursuing a course which his conscience dictates. That is a matter for each individual to weigh up very carefully before deciding upon the action he will take. We feel that it would only be in circumstances in which there has been a distortion of the true spirit of the Constitution by amendment or suspension of crucial constitutional provisions, that it might be justified for a person to act in a way which is contrary to the provisions of the Constitution.
2. Political Obligations
98. The principles of freedom and democracy which our people wish to promote cannot become a reality unless we are prepared to protect and promote them. We believe our people have an obligation to exercise the political rights which are safeguarded by the Constitution, and in particular to participate in the government of our nation.
99. Participation in government means many things. In one very important aspect it means that every citizen who has reached the age at which he may do so, should take the opportunity of exercising the right to seek to become an elected representative or to share in the choice of representatives in the national, provincial, local and village governments.
100. Each person should contribute creatively and constructively to the political life of the country in one way or another. To fulfil this obligation may mean exercising our freedom of speech to criticise unjust or ineffective laws or policies. It may mean meeting our representative to put our point of view across. It may mean studying hard in school or college to enter government service to serve the public.
101. The governing of our country should be a collective and concerted effort. It is not a job for the ministers and members of parliament only. It is not simply a job for those in the Public Service. If we are to have good government in this country - government which is responsive to the needs and wishes of the people - all of our people should participate in accordance with the rights they have under the Constitution and any law made in accordance with it. Not only political parties are involved - trade unions and other associations should make their contribution to political life also. So too should the media, churches and those in public employment and in private enterprise. But above all, our people as individuals, as members of village and urban communities, and as citizens of our country should make their contribution however large or small if we are to have government of the people.
3. Social Obligations
102. That man is a social being is as true today as it was when this phrase was first articulated. Social life consists of inter-actions between individuals. Traditional Papua New Guinean society gives prominence to the individual in society. A person is born into a family. He inherits many social obligations of his family and his community. Modern Papua New Guinea provides greatly increased opportunities for social inter-action. It also involves increased responsibilities and obligations. Man today is likely to despair if he pauses to count all the different demands placed on his life. The national and local governments, the church, the educational institutions, the family and the village - all of these institutions require each one of us to contribute in one way or another to meeting the needs of others.
103. And yet, it is important to realise that real personal fulfilment, liberation and freedom lie in our commitment to and contribution towards fulfilling our community's needs. Since our country consists of different villages, tribes, language groups and districts, we must not forget that working conscientiously, in however small a village, to better the lives of one's people can completely fulfil the obligation to contribute usefully to the advancement of our nation.
104. Every person should be prepared to use his talents wisely to improve not only himself but others in his community, whether that community is small or large, local or national. Every person is born with talent he or she may use wisely or unwisely. Formal institutions such as schools exist to encourage individuals to refine their talents. They do not create talent. In this country, which we are in the process of building into a nation, it is important that our people should be encouraged to take the initiative to use their talents and labour where no employment opportunities seem immediately available. At this stage of our development the government simply cannot provide all the employment opportunities that our people would like, and this type of initiative is of great importance for our national wellbeing. At the same time, the government should give as much support as it can to those who use their initiative in this way.
105. Co-operation as opposed to confrontation should be our aim if we are to achieve all our objectives. Co-operation should stem from the appreciation of one's own rights and freedoms and respect for the rights and freedoms of others. There are, of course, times when co-operation is not possible because a matter of principle is at stake and a stand must be taken on that principle. We believe, however, that if emphasis is placed on co-operation the circumstances in which confrontation arises can be minimised.
106. As a nation we must have solidarity. That solidarity will be achieved only if we can develop a true sense of mutual trust and of personal and communal interdependence. That solidarity should be based on democratic principles. Every person who has something constructive to say or offer should be able to do so without unreasonable restriction. Government and community activity should be the result of our collective will.
107. The formation of a person's personality and character begins long before that person goes to a formal institution to receive instruction. It begins at home, among the family. In our country, the family is a much broader unit than the nuclear family. We believe it should stay that way. In our chapter on National Goals and Directive Principles, we stressed the need for strong, stable family life as the basis for our country's development. We believe that parents and all members of the family have a special obligation to support, assist, educate and teach their children.
108. We recognize that the changes in values which have taken place in our country and in the world generally in recent years have created what is popularly termed "the generation gap". Thus the members of one generation do not seem to share the same ideals as those held by the youth of a later generation. To some extent this is inevitable. However, we do believe that children should grow up and be responsible to their parents, respect them and care for them in their old age. Some children are born outside the marriage relationship, but they, too, should be cared for as far as possible as if they were born within marriage. The responsibilities of the parents towards these children are the same as those of other parents.
4. Economic Obligations
109. All of us should be aware that we are trustees for future generations of our people and have the fundamental duty of protecting the interests of our country by ensuring that its sovereignty and independence are not undermined by foreign interests. As we said in Chapter 2, we need to appreciate that the danger to our national integrity is less likely to come from military action than from foreign economic dominance which stems partly from our colonial heritage, and partly from our acceptance of too many large, highly capitalised foreign enterprises which appear to bring us attractive material benefits, but in reality exploit our resources for their own benefit, undermine our self confidence, and make us increasingly dependent on foreign capital, and foreign technical and managerial skills.
110. There is ample evidence that a substantial number of our people are already well aware of this danger and are taking steps to avoid it by opposing foreign controlled projects which they see as not being in their best interests. But there are many others who do not appreciate the long term implications of the activities of these enterprises. Only if the great majority of our people become fully aware of the implications for their children and grandchildren of the operation of these massive foreign enterprises - the rapid breakdown of traditional societies, their values and customs; the encouragement of an attitude of dependence instead of one of self reliance; the irreparable damage which these enterprises can cause to the environment - will we be able to adequately protect ourselves from the old colonial and neo-colonial policy of "divide and rule", which is often used by these enterprises to achieve their ends.
111. We believe that this obligation of protecting the State, safeguarding its wealth, its resources and the environment in the interests of future generations, is of crucial importance to the future of our nation.
112. A further basic obligation which we propose is that everyone should contribute to economic growth in our country to the extent that he is able to do so. All of us should work hard and help to advance the welfare of the local or national community by paying taxes lawfully required of us in accordance with our means. Active participation in economic as in other aspects of our society's development, is essential if we are to achieve our goals of equality and self reliance.
113. We do not mean to suggest that every person should strive to be self sufficient to the exclusion of others. That would be likely to lead to individualism and selfishness. We do believe that individuals should endeavour not to be unduly dependent on governments and the formal economic sector for their betterment. Instead, people should try to take the initiative in starting and expanding business activities to promote the collective well being of their community. Where others can help in a project resulting from such initiative they should do so.
114. All our constitutional utterances will be empty unless our people are willing to do their part to make sure that the fundamental guarantees in the Constitution are meaningful and effective. We shall be going a long way towards making them so if all of us fully accept the obligations which we have proposed - obligations which everyone in our society owes to the other members of it.
C. GENERAL
115. We have carefully weighed the arguments for and against the enforcement by the courts of the human rights provisions we have recommended. In Part E of Chapter 8 "The Administration of Justice" we spell out what we believe are the main arguments for and against the judicial enforcement of constitutional provisions generally. The principal arguments in respect of this issue are similar.
Those who believe judges should not be involved in the enforcement of human rights generally argue firstly, that in deciding cases involving basic human rights the judges will often be concerned with matters which many people would say ought to be decided by members of the National Parliament rather than by a court. For example, the court may have to decide whether it is "reasonably justifiable" for a law to be passed requiring all adult men in certain towns to hold a work permit or be prosecuted for vagrancy. Some people have spoken in the past of the "need" for such a law.
It can be argued, further, that the task of both judges and government ministers in a new nation such as Papua New Guinea is very difficult even if there are no enforceable human rights and freedoms set out in the Constitution. This is because ministers in such countries have the responsibilities of trying to bring together many different groups of people, some of whom are suspicious of one another, while at the same time trying to bring about rapid economic and social development. Unpopular decisions of courts can place extra strain on both judges and ministers and sometimes lead to serious friction between them. Giving judges the responsibility to decide cases about whether or not basic human rights included in the Constitution have been overridden may put too much strain on the relationship between ministers and judges, and perhaps lead to the judges becoming less independent of the Executive.
On the other hand it can be persuasively argued that if there is no power of enforcement of basic human rights their inclusion in the Constitution is of little value, as the Government and people and organizations who choose to do so, can ignore them. Under the Human Rights Ordinance the Full Court (three Supreme Court judges sitting together) has power to enforce the basic rights and freedoms mentioned earlier, and already that court has made an important decision that a particular right - that of being brought to trial within a reasonable time if one is charged with an offence - had been ignored, and the trial of the person concerned was ordered to take place immediately. The effect of enforceable human rights provisions in a Constitution is not limited to the decisions of courts - such provisions act as a deterrent to governments and parliaments which might otherwise disregard fundamental rights or at least give them insufficient consideration.
Secondly, in a country such as Papua New Guinea, where there are many fairly small groups, it is only by putting these rights and freedoms in the Constitution, and giving the courts power to decide whether or not they have been ignored and power to make orders to enforce them in individual cases, that these small groups can feel secure.
Thirdly, judges and magistrates at times have to make decisions which they know may be unpopular with the government in any event, but this is part of their role as independent members of the judiciary. Though the Human Rights Ordinance has been in force for only a relatively short period it has not given rise to any suggestion of conflict between the executive and the judiciary in relation to a decision of a court concerning the Human Rights Ordinance during that time.
116. On balance, we have concluded that the human rights provisions should be enforced by the courts. We have recommended that not only the Supreme Court, but the National Court and District (or Provincial) Courts should be able to decide such cases. Our purpose here is to ensure that the opportunity to raise human rights issues should not be stifled by being confined to the somewhat ratified atmosphere of the highest court in the land - the Supreme Court. People should be able to complain of a breach of a human right and have that complaint judicially decided without undue difficulty.
117. We have recommended the retention of the provisions of the Ordinance which allow the Secretary for Law or the Public Solicitor to bring an action in court for the protection or enforcement of a right or freedom set out in this part. However, we have not used the title Secretary for Law in case this should be changed in the future. We have simply referred to the most senior legal adviser to the Government.
Suspension of or derogation from human rights in the interests of defence, public safety, public order, public health or public welfare
118. We are conscious that the exception provisions to the following effect "to the extent that the law makes provision -
(a) that is reasonably justifiable in a democratic society in the interests of defence, public safety, public order, public health or public welfare; or
(b) that is reasonably justifiable in a democratic society for protecting the rights or freedoms of other persons",
are very broad indeed and could be used by a government intent upon passing legislation which would otherwise be invalid, to pass numerous Acts contrary to the spirit of the recommendations contained in this Part simply by relying upon one or other of these exception clauses for its validity.
119. We recommend, in order to limit the use which may be made of these exception clauses, that a law may only be passed under one or other of them if either -
(a) the relevant Act provides that it is only to have effect during a State of Emergency; or
(b) the bill for the Act is supported on its final reading by a three-fifths majority of the members of the National Parliament.
120. We recommend that to provide a safeguard against abuse of or excessive use of a legal power provided for in this Part, any action which is excessive or oppressive in the actual circumstances of the case should be unlawful. Interpreting legislative provisions of this kind is not new to the courts.
Permanent Committee to review laws and policies for compliance with the Human Rights and Obligations and National Goals and Directive Principles set out in the Constitution
121. Although we have given a major role to the judiciary in the enforcement of the recommended human rights provisions of the Constitution we believe it is of considerable importance that we give the legislature a significant role in this regard also. Our proposal is that the Permanent Committee of the House responsible for justice or a sub-committee of that committee be responsible for ensuring that bills, regulations and government policies comply with the National Goals and Directive Principles set out in Chapter 2 and with the human rights and obligations provisions in this Part. The Committee should be able to make recommendations or move amendments for the alteration of bills and the disallowance of regulations where these are in conflict with either any provision of this Part or any of the National Goals and Directive Principles.
122. We recommend that all current legislation and government policies should be carefully considered by either the proposed Law Reform Commission or a special committee comprising Papua New Guinean public servants, and perhaps politicians also, with appropriate skilled staff, and if needed, outside consultants. The Commission or committee should make recommendations from time to time, and make a final report within two years of its establishment, in regard to the repeal or amendment of legislation which is contrary to the proposed National Goals and Directive Principles. We also propose that this body recommend changes in policies of the Government, (and institutions of government) in order to achieve conformity with the Goals and Principles. This task is a vital one, as it is important that any pre-existing legislation or policies which are in conflict with these new constitutional provisions should be altered as soon as possible, in order that our people may immediately benefit from the standards set in the new Constitution.
123. We see no good reason why the human rights provisions should not come into force as soon as the Constitution becomes effective in the same manner as will almost all other provisions, although we realise that this will probably mean that some existing legislation will thereby be made invalid. However we consider that the fact that the Human Rights Ordinance has already been in force for almost three years, and most of the provisions we recommend follow closely those in that Ordinance is of importance in this regard. The additional rights and freedoms which we propose should be included in the Constitution may possibly override parts of certain ordinances and regulations, but the most important of these could, we believe, be identified quickly. The proposed new advisory jurisdiction of the Supreme Court could be availed of in some instances where there is doubt as to the validity of a particular provision.
RECOMMENDATIONS
A. DECLARATION OF FUNDAMENTAL RIGHTS AND FREEDOMS
1. (1) No person shall be deprived of his life intentionally, except in execution of a sentence of a court following his conviction of an offence for which the penalty of deprivation of life is prescribed by law.
(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as the result of the use of force to such an extent as is reasonably justifiable in the circumstances of the case:
(a) for the defence of any person from violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission by that person of a criminal offence,
or if he dies as a result of a lawful act of war.
2. (1) No person shall be deprived of his personal liberty, except as authorized by law in any of the following cases:-
(a) to a reasonable extent in the normal course of the education or discipline of a child, by his parent, guardian or other person into whose care he has been committed, or for his protection or the protection of others;
(b) in consequence of his unfitness to plead to a criminal charge;
(c) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty or in the execution of the order of a court of record punishing him for contempt of itself or of another court or tribunal;
(d) by reason of his failure to comply with the order of a court made to secure the fulfilment of any obligation other than a contractual obligation, imposed upon him by law;
(e) upon reasonable suspicion of his having committed, or being about to commit an offence;
(f) for the purpose of bringing him before a court in execution of the order of a court;
(g) in the case of a person who has not attained voting age, under the order of a court or with the consent of his guardian, for the purpose of his education or welfare during any period ending not later than the date when he attains voting age;
(h) for the purpose of preventing the introduction or spread of a disease or a suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine;
(i) in the case of a person who is, or is reasonably suspected to be of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purposes of his care or treatment or the protection of the community (under the order of a court); and in the case of a person reasonably suspected to be of unsound mind, for the purpose of taking prompt legal proceedings to obtain such an order of a court;
(j) for the purpose of preventing the unlawful entry of a person into Papua New Guinea or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of these purposes.
(2) (a) A person who is arrested or detained shall be informed promptly, in a language which he understands, of the reasons for his arrest or detention and of any charge against him, and 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 that person is entitled to legal aid), and to have adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained.
(b) A person who is arrested or detained shall be informed immediately upon his arrest of his rights under paragraph (a) of this clause.
(3) A person who has been arrested or detained in the circumstances referred to in paragraph (e) of clause (1) of this recommendation and has not been released, shall be brought before a judge or magistrate as soon as is practicable after the arrest or detention and shall not be further held in custody in connection with the offence except by order of a judge or magistrate.
(4) The necessity or desirability of interrogating a person or other persons, or of obtaining evidence, or any administrative requirement or convenience, is not a good ground for delay in complying with clause (3) of this recommendation, but the exigencies of travel which in the circumstances are reasonable may be taken as such a good ground without derogating from other remedies which may be open to him.
(5) Where a complaint is made to the National Court or a judge of that court that a person is unlawfully or unreasonably detained, the National Court shall inquire into the complaint, and order the person to be brought before it. Unless satisfied that the detention is lawful and, in the case of a person being detained on remand pending his trial, does not constitute an unreasonable detention having regard, in particular, to the length of that detention, the court or a judge shall order his release either unconditionally or on such conditions as the court or judge thinks fit.
(6) Any person who is arrested or detained -
(a) for the purpose of being brought before a court in the execution of the order of a court; or
(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence,
shall, unless he is released, be brought without delay before a court, a judge or a magistrate.
(7) Any person arrested or detained for an offence other than treason or wilful murder shall be entitled to bail at all times from arrest until conviction except where the interests of justice otherwise require. A court or person with the authority to grant bail shall, when bail is refused, and when requested by the person so refused or his representative, state the reason for such refusal in writing. Any person refused bail or his representative may apply to the National Court or the Supreme Court in a summary manner for his release.
(8) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person.
3. (1) Subject to Recommendation 3 in Part 2 of this Chapter ("Emergency Powers"), no person shall be required to perform forced labour.
(2) In clause (1) of this recommendation "forced labour" does not include:-
(a) labour required by the sentence or order of a court;
(b) labour required of a person while he is lawfully detained, being labour that, though not required by the sentence or order of a court, is reasonably necessary for the purposes of hygiene or for the maintenance of the place at which he is detained;
(c) in the case of a person detailed for the purpose of his care, treatment, rehabilitation, education or welfare, is reasonably required for that purpose;
(d) labour required of a member of a disciplined force in pursuance of his duties as such a member or in the case of a person who has conscientious objections to service in the armed forces, any reasonable labour required by law instead of that service; or
(e) subject to the approval of any local government council or other legally recognized governmental authority at the local level for the area in which he is required to work, labour reasonably required as part of reasonable and normal communal or other civic obligations.
4. No person shall be subjected to torture or to treatment or punishment that is cruel, inhuman or degrading.
5. (1) No person shall without his consent be subject to the search of his person or property or the entry to his house or other premises by other persons.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of clause (1) above to the extent that the law makes provision for a search or entry -
(a) under an order made by a court;
(b) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search;
(c) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose, to enter, where reasonably necessary; on the premises of a person in order to inspect those premises or any thing in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate;
(d) pursuant to a law that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or the departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade;
(e) for the purpose of inspecting or taking copies of documents relating to -
(i) the conduct of a business, trade, profession or industry pursuant to a law regulating the conduct of that business, trade, profession or industry; or
(ii) the affairs of a company pursuant to a law relating to companies;
(f) for the purpose of inspecting goods, or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment, of taxes or pursuant to a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or
(g) that is reasonably justifiable in a democratic society in the interests of defence, public safety, public order, public health or public welfare; or for protecting the rights or freedoms (whether under the Constitution or otherwise) of other persons.
Note: As to the effect of a violation of this right in regard to the use of information or physical evidence thereby obtained, and in particular whether or not it should be admissible as evidence in court proceedings, the Committee recommends that the proposed Law Reform Commission should give early consideration to this issue.
6. (1) No person shall be convicted of an offence which is not defined by and the penalty for which is not prescribed by written law.
Note: To the extent that inadequate provision at present exists in written law in relation to contempt of court the Committee recommends that early attention be given to rectifying this situation.
(2) 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 established by law.
(3) A person charged with an offence -
(a) shall be presumed innocent until proved guilty according to law,
provided that a law may place upon a person charged with an offence the burden of proving particular facts;
(b) shall be informed promptly in a language which he understands, and in detail of the nature of the offence with which he is charged;
(c) shall be given adequate time and facilities for the preparation of his defence;
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge;
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person in need, by the Public Solicitor, or another legal representative assigned to him in a case where in the opinion of the court the interests of justice so require, (and without payment by him in any such case if he does not, in the opinion of the Public Solicitor or of the court, as the case may be, have sufficient means to pay any part of the costs involved);
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution, and, except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence,
provided that provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that the person has been duly served with a summons in respect of the alleged offence; and
(g) nothing in paragraph (f) above shall invalidate a law which imposes reasonable conditions which must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.
(4) No person shall be convicted of an offence on account of any act or omission that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.
(5) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence, or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal, or review proceedings relating to the conviction or acquittal.
(6) No person shall be tried for an offence for which he has been pardoned.
(7) Every person who is tried for an offence shall have the right to give evidence at his trial.
(8) No person shall be compelled in the trial of an offence to be a witness against himself.
(9) 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 upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.
(10) Except with the agreement of the parties, or, by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.
(11) Nothing in clause (10) of this recommendation prevents a court or other authority from excluding from the hearing of the proceedings persons, other than the parties and their legal representatives, to such an extent as the court or other authority -
(a) is by law empowered to do and considers necessary or expedient in the interests of public warfare or in circumstances where publicity would prejudice the interests of justice, the welfare of minors or the protection of the private lives of persons concerned in the proceedings; or
(b) is by law empowered or required to do in the interests of defence, public safety or public order.
(12) In the event that the trial of a person in the National Court is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made to the Minister responsible for justice by the Chief Justice.
(13) Every person convicted of an offence (including an offence as a detainee) shall be entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.
(14) When a person has by a final decision been convicted of a criminal offence and subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
(15) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court if at the commencement of that law, either the time for appealing against his conviction or sentence has not expired, or he has lodged an appeal which has not been determined.
(16) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
(17) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.
(18) Accused persons who are under the age of 16 years shall be separated from other persons in custody.
(19) Offenders who are under the age of 16 years shall be segregated from other persons in custody and be accorded treatment appropriate to their age and legal status.
(20) An offender shall not be transferred to an area away from that in which his relatives reside except for good cause (particularly in terms of security). Where such a transfer is made, the reason for so doing shall be endorsed on the file of the offender.
(21) Notwithstanding the above clauses of this recommendation, the powers of, and procedure in "village courts" as defined in the Village Courts Act, 1974, or in an Act establishing courts similar to those courts or amending the Village Courts Act 1974 shall not be invalid insofar as they are in accordance with the provisions of that Act or similar legislation and are not contrary to principles of natural justice.
Note: (i) The constitutional provision which ensures the validity of the powers and procedures of village courts in accordance with clause (21) above should allow for some flexibility in the powers and procedures of these courts conferred by legislation in the future, but should require that those powers and procedures accord with principles of natural justice.
(ii) In clause (20) of this recommendation an "area" is intended to be defined broadly, and may include a province in some circumstances.
7. (1) Subject to clause (5) below, all persons have the right to freedom of conscience, thought and religion, including freedom to change their religion or belief, and freedom, either alone or in community with others, and in public or in private, to manifest and propagate their religion or beliefs in worship, teaching, practice and observance.
(2) Except with his consent, no person shall be hindered in the enjoyment of a right of freedom referred to in clause (1) above.
(3) Except with his consent, or if he is a minor, the consent of his parent or guardian, no person attending a place of education shall be required to receive religious instruction or to take part in or attend a religious ceremony or observance if that instruction, ceremony or observance relates to a religion other than his own religion or belief.
(4) No person shall be compelled to take any oath which is contrary to his religion or belief or to take any oath in a manner which is contrary to his religion or belief.
(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, this recommendation to the extent that the law makes provision which is reasonably justifiable in a democratic society -
(a) in the interests of defence, public safety, public order, public health, or public welfare;
(b) for protecting the rights and freedoms of other persons (whether or not they hold any religious beliefs) including the right to observe and practise religion without the unsolicited intervention of adherents of another religion; or
(c) for regulating the secular education provided in any place of education in the interests of persons receiving instruction in that place, and in particular, providing courses in religion which include the fundamental doctrines of Christianity, the doctrines of other world religions, and the ancient religious beliefs of the peoples indigenous to Papua New Guinea.
8. (1) Subject to clause (4) below, all persons have the right to freedom of expression and publication, that is to say, freedom to hold opinions, freedom to receive ideas and information, freedom to communicate ideas and information (whether the communication is to the public generally or to any class of persons) and freedom from interference with their correspondence.
(2) In clause (1) above "freedom of expression and publication" includes freedom of the press and of other mass media of communication.
(3) Except with his consent, no person shall be hindered in the enjoyment of the rights referred to in clause (1) above.
(4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, this recommendation to the extent that that law makes provision that is reasonably justifiable in a democratic society -
(a) in the interests of defence, public safety, public order, public health or public welfare;
(b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, or maintaining the authority and independence of the courts;
(c) for the purpose of regulating the technical administration or technical operation of telephony, telegraphy, posts, wireless, broadcasting or television or restricting the establishment or use of telephonic, telegraphic, wireless, broadcasting or television equipment or of postal services;
(d) imposing restrictions on constitutional office-holders, members of the public services and members of a disciplined force; or
(e) imposing restrictions on persons who are not citizens of Papua New Guinea.
9. (1) Subject to clause (3) below, all persons have the right to assemble and associate peaceably and to form or belong to political parties, industrial organizations or other associations.
(2) Except with his consent, no person shall be hindered in the enjoyment of a right referred to in clause (1) above.
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, this recommendation to the extent that that law makes provision that is reasonably justifiable in a democratic society -
(a) in the interests of defence, public safety, public order, public health or public welfare;
(b) for protecting the rights and freedoms of other persons;
(c) for imposing restrictions upon constitutional office-holders, members of the public services and members of a disciplined force;
(d) for the registration of political parties, industrial organizations and other associations or organizations, (including churches and missions) in registers provided for by law, and for imposing reasonable conditions concerning the procedure for entry in such a register.
(e) for prohibiting any association from placing restrictions based on race or colour on the admission of members to the association; or
(f) imposing restrictions on persons who are not citizens of Papua New Guinea.
10. (1) Subject to clauses (3) and (4) below, all persons have the right to freedom of employment. For the purposes of this recommendation "freedom of employment" means freedom of choice of employment, that is to say, each person shall have the right, in accordance with his own wishes, to practise any lawful profession or carry on any lawful trade or business.
(2) Except with his consent, no person shall be hindered in the enjoyment of the right referred to in clause (1) above, provided that this provision shall not be interpreted as meaning that reasonable activities of trade unions intended to persuade persons in employment to join them as members are unlawful.
(3) Nothing contained in or done under the authority of a law shall be held to be inconsistent with, or in contravention of, this recommendation to the extent that that law imposes any disability or restriction or accords any privilege or advantage which, having regard to its nature and to special circumstances concerning the persons to whom it applies, is reasonably justifiable in a democratic society.
(4) Nothing contained in or done under the authority of a law shall be held to be inconsistent with, or in contravention of, this recommendation to the extent that that law makes provision that is reasonably justifiable in a democratic society -
(a) in the interests of defence, public safety, public health or public welfare;
(b) for the protection of minors or persons under a disability;
(c) for the protection of workmen;
(d) for the regulation of industrial organizations or industrial relations or the prevention or settlement of industrial disputes;
(e) for establishing and maintaining standards of workmanship or production, for quality control or for the protection of industries;
(f) for prescribing and regulating the qualifications required for particular types of employment; or
(g) for restricting or prohibiting any person who is not a citizen of Papua New Guinea from practising any profession or from carrying on any occupation, trade or business.
11. (1) Subject to clauses (2) and (3) below no citizen shall be deprived of his freedom of movement. For the purposes of this recommendation that freedom means the right to move freely throughout Papua New Guinea, the right to reside in any part of Papua New Guinea, the right to enter Papua New Guinea, the right to leave Papua New Guinea, and immunity from expulsion from Papua New Guinea.
(2) A restriction on a citizen's freedom of movement that is necessarily involved in his lawful detention shall not be held to contravene this recommendation.
(3) Nothing in this recommendation shall invalidate any law by reason only that the law makes provision which is reasonably justifiable in a democratic society -
(a) for the imposition of restrictions on the acquisition or use by any person of land or other property in Papua New Guinea;
(b) for the removal of a citizen from Papua New Guinea to be tried outside Papua New Guinea for a criminal offence or to undergo imprisonment outside Papua New Guinea in execution of a sentence of a court (established for Papua New Guinea or for some other country) in respect of a criminal offence of which he has been convicted;
(c) for the imposition of restrictions on the movement or residence of members of a public service or members of a disciplined force;
(d) for the imposition of restrictions on the right of any person to leave Papua New Guinea that are reasonably required in order to secure the fulfilment of any obligation imposed on that person by law, or which is enforceable in legal proceedings; or
(e) for the imposition of restrictions on the freedom of movement of any person that are reasonably required in the interests of defence, public safety, public order, public health, public welfare, or environmental conservation.
12. (1) Every person shall be entitled to respect for his private and family life, his home, his communications by telephone and other electrical or electronic means, and his correspondence.
(2) Nothing in this recommendation shall invalidate any law insofar as the law is reasonably justifiable in a democratic society -
(a) in the interests of defence, public safety, public order, public health or public welfare; or
(b) for the protection of the rights and freedoms of other persons.
13. (1) Subject to the Constitution every Papua New Guinean citizen shall have the right and the opportunity, without unreasonable restrictions -
(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) to vote and to be elected to public office at genuine periodic elections which shall be by universal adult suffrage and shall be held by secret ballot guaranteeing the free expression of the will of the electors,
provided that provision may be made by law for reasonable assistance to be given to a voter in marking his ballot paper in any election if he is illiterate or is for any other reason unable to complete his ballot paper without assistance; or
(c) to hold public office and to exercise all public functions in accordance with law.
(2) Women are entitled to hold public office and to exercise all public functions in accordance with law, on equal terms with men, without any discrimination.
(3) The burden of proving that a restriction referred to in clause (1) above is a reasonable restriction lies upon the person asserting that the restriction is reasonable.
14. (1) To further free interchange of opinion and general enlightenment, every Papua New Guinean citizen shall have free access to official documents, subject only to the following restrictions -
the need for such secrecy as is reasonably justifiable in a democratic society in respect of -
(a) matters relating to national security and relations between Papua New Guinea and foreign States;
(b) national economic interests and the legitimate economic interests of communities and individuals;
(c) minutes of meetings and associated papers of the National Executive Council and of such other governmental authorities as are prescribed by law;
(d) parliamentary papers the subject of parliamentary privilege;
(e) reports, official registers and diaries prepared by governmental authorities or authorities established by government, prior to completion;
(f) memoranda or other notes prepared by a governmental authority to prepare or present a case or matter for decision, unless after the case or matter has been decided by the authority the matter is placed on permanent record;
(g) papers relating to lawful official activities for investigation, inspection, control or other supervision;
(h) prevention, investigation and prosecution of crime;
(i) the maintenance of privacy, security of the person and decency.
(2) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.
Note: In this Chapter "official documents" means all documents kept by the national government or by a provincial government or local government authority, whether received or prepared by that authority. The term includes maps, drawings and pictures (including photographs).
(3) As a step towards ensuring that official information is used responsibly by the press in the interests of Papua New Guinean citizens it is recommended that the managing editor of any newspaper, magazine, or other similar publication which is published in Papua New Guinea shall be -
(a) a citizen; and
(b) the person responsible for any breach of the law in a publication produced by the corporation or other enterprise of which he is managing editor.
15. (1) (a) Subject to clause (2) below, no citizen shall be deprived compulsorily of any property or interest in or right over such property except in accordance with law and principles of justice.
(b) In applying principles of justice under this clause a court shall, in addition to giving full weight to the National Goals and Directive Principles in the Constitution, have due regard for the national interest and in particular to the expression of that interest by the representatives of the people in Parliament, as well as to the interests of the person deprived of his property.
Note: The Committee envisages that appropriate provision will be made by law from time to time for the protection of the property rights and interests of foreign investors and other foreign citizens and for payment to be made to them in respect of their rights and interests in case of expropriation. The proposed government bill for the establishment of NIDA contains a guarantee of this kind to foreign investors.
(2) Nothing contained in or done under the authority of a law shall be held to be inconsistent with or in contravention of clause (1) of this recommendation to the extent that that law makes provision -
(a) for the deprivation of any property or of any interest in or right over property -
(i) the possession of which is declared by law to be unlawful, either absolutely or in certain circumstances or with certain exceptions;
(ii) in satisfaction of a rate, tax or due;
(iii) by way of penalty for a breach of the law or forfeiture in consequence of a breach of the law;
(iv) by way of taking a sample for the purposes of any law;
(v) as an incident of any deposit required to be made with the government of a reasonable number of copies of every book, magazine, newspaper or other printed work published in Papua New Guinea.
(vi) by way of requiring persons carrying on business in Papua New Guinea to deposit money with government or an agency of government for the purpose of controlling credit or investment in Papua New Guinea, or otherwise for the protection of people generally;
(vii) for the purpose of marketing property of that description in the common interests of the various persons otherwise entitled to dispose of that property;
(viii) for so long only as may be necessary for the purpose of an examination, investigation, trial or inquiry, or, in the case of land, the carrying out on the land -
(aa) of work of soil or forest conservation or the conservation of other natural resources;
(bb) of agricultural or other development or improvement which the owner or occupier of the land has been required and has without reasonable and lawful excuse refused or failed to carry out;
(ix) upon the attempted removal of the property in question out of or into Papua New Guinea in contravention of any law;
(x) where the property consists of an animal, upon its being found trespassing or straying;
(xi) for the purpose of its administration, care or custody on behalf of and for the benefit of the person entitled to the beneficial interest in it;
(xii) in terms of any law relating to abandoned, unoccupied, unutilised or underdeveloped land (other than customarily owned land) as defined in that law;
(xiii) in terms of any law relating to absent or non resident owners or occupiers as defined in such law, of any property other than customarily owned land;
(xiv) as a condition in connection with the granting of permission for the utilization of that or other property in any particular manner;
(xv) by way of the acquisition of the shares, or a class of shares in a body corporate on terms agreed to by the holders of not less than nine-tenths in value of those shares or that class of shares;
(xvi) where the property is any natural resource any rights accruing by virtue of any title or licence for the purpose of searching for, surveying or exploiting any natural resource -
(aa) upon failure to comply with any provision of such law relating to the title or licence or to the exercise of the rights accruing or to the development or exploitation of any natural resource; or
(bb) in terms of any law vesting any such property or rights in the government;
(xvii) in terms of any law providing for the conversion of titles to land from freehold to leasehold and the imposition of any restriction on subdivision, assignment or sub-letting;
(xviii) in terms of any law relating to -
(aa) the forfeiture or confiscation of the property of a person who has left Papua New Guinea for the purpose, or apparent purpose, of defeating the ends of justice;
(bb) the imposition of a fine on, and the forfeiture or confiscation of the property of, a person who admits a contravention of any law relating to the imposition or collection of any duty or tax or to the prohibition or control of dealings or transactions in gold, currencies or securities;
(xix) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;
(xx) in the execution of a judgement or order of a court;
(xxi) in circumstances where it is reasonably necessary so to do because the property is in a dangerous state or is potentially dangerous or is (or may be) injurious to the health of human beings, animals or plants; or
(xxii) in consequence of any law with respect to prescription or the limitation of actions; or
(b) for the taking of possession or acquisition of any of the following property:-
(i) property of a deceased person, a person of unsound mind or a minor, for the purpose of administering it for the benefit of the person entitled to the beneficial interest in the property;
(ii) property of a person adjudged bankrupt or insolvent or of a body corporate in liquidation, for the benefit of the creditors of the bankrupt or insolvent or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property;
(iii) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court, or, by order of a court, for the purpose of giving effect to the trust; and
(iv) property held by a body corporate established by law for a public purpose;
(v) property for the purpose of vesting or administering that property.
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URL: http://www.paclii.org/pg/CPCReport/Cap5A.htm