Chapter 1

THE CONSTITUTION OF THE

INDEPENDENT STATE OF PAPUA NEW
GUINEA
The Constitution of the independent state of Papua New Guinea has special legal sanctity.
The Constitution stands pre-eminent over all laws. All other laws must conform to the
Constitution. Specifically, s 11(1) of the Constitution of the independent state of Papua New
Guinea provides:

"This Constitution and the Organic Laws are the Supreme Law of Papua New
Guinea ... all acts ... that are inconsistent with them are, to the extent of the
inconsistency, invalid and ineffective."

The provisions of the Constitution, in so far as they relate to criminal law and procedure, are
the point of departure to any consideration of criminal law and procedure.

Basic rights

The most important provisions relating to criminal law and procedure are the constitutional
guarantees of basic rights in Div 3 of Pt 111 of the Constitution. The basic rights provisions
have a twofold effect. First, the basic rights provisions have restricted administrative
competence in favour of individual liberty. Basic rights are effective for defence lawyers.
Apart from this active role, the basic rights provisions have a secondary importance which
may be described as their passive role. The provisions serve as a guide to legislative
competence. Acts, such as the Arrest Act, Search Act and Bail Act conform to the framework
of the basic rights provisions.

The Constitution lays down four basic rights enjoyed by all people in the country,
irrespective of citizenship:

(a) the right to freedom (s 32);

(b) the right to life (s 35);
(c) the right to freedom from inhuman treatment (s 36); and
(d) the right to protection of the law (s 37).

The second category of rights applies to all people and covers the liberty of the person (s 42),
and specifically:

(a) freedom from forced labour (s 43);

(b) freedom from arbitrary search or entry (s 44);
(c) freedom of assembly and association (s 47);
(d) freedom of employment;
2 Chapter 1

(e) the right to privacy (s 49); and

(f) freedom of conscience, thought, religion and expression (ss 45 and
46).
The third category of basic rights only applies to citizens of Papua New Guinea.
These are:

(a) the right to vote and stand for public office (s 50);
(b) the right to freedom of information (s 51);
(c) the right to freedom of movement (s 52);
(d) protection from unjust deprivation of property (s 53); and
(e) equality of citizens (s 55).

Importantly, the second and third categories of basic rights are covered by a
qualification that their operation may be restricted by any law passed which,
although in conflict with these rights, is "reasonably justifiable in a democratic
society": Constitution, ss 38-39. This phrase traces its ancestry to the Indian and
later African Constitutions. Sections 38-39 represent the extent to which wider
public interests may be permitted to restrict the inviolability of private basic
rights by judicial fiat. To ensure that this legislative authority is not used as a
back-door method to erode basic rights, the Constitution provides procedural
protection. Any proposed Act which qualifies a basic right must follow a special
procedure which equates with the procedure for constitutional amendment. By s
38(2), the Act must:

(a) be expressly stated as a law which qualifies a basic right;

(b) specify the basic right which is to be qualified; and
(c) be certified as passed by an absolute majority in the Parliament.

This general qualification on basic rights has been considered on occasions by

the superior courts. In Stan Cory v John Blyth [1976] PNGLR 274, an action for
defamation was met by a defence that by s 46 of the Constitution (freedom of
speech) no action could lie. It was held that s 46 did not license the making of
defamatory statements. It was also held that the effect of the Defamation Act
1962 (now Ch 293) was to put reasonable limitations under s 38 of the
Constitution on the right to freedom of speech.

From the point of view of criminal law and procedure, the most important of
these basic rights is contained in s 37, which provides for the fundamental right
of protection of the law for all individuals. Section 37 essentially states the
established common law principles of the fair and impartial administration of
justice in open court. As regards criminal procedure, elaborate safeguards are
set out in s 37. It is provided that an accused person, unless the charge is
withdrawn:

(a) shall be entitled to a fair hearing within a reasonable time by an

independent and impartial court (s 37(3));

(b) is presumed innocent until proven guilty according to law (s 37(4)(a));

 (c) is entitled to be informed promptly in a language which the accused
understands and in detail of the nature of the offence charged (s 37(4)
(b));

(d) must be given adequate time and facilities to prepare a defence (s

37(4)(c));
(e) has the right to have the free assistance of an interpreter if the
language used in the court cannot be understood or spoken by the
accused (s 37(4)(d));

(f) has the right to put forward a defence in person before any
independent and impartial court by persons of the accused’s own
choice who are legal practitioners (s 37(4)(e)); and

(g) has a right to examine or have examined witnesses for and against the
accused (s 37(4)(f))
 THE INDEPENDENT STATE OF PAPUA NEW GUINEA
3

It is also provided that:

(a) it is unlawful for anyone to be held guilty of any criminal offence on

account of any act or omission which did not constitute an offence at
the time it was committed (s 37(7));

(b) in such a case, a heavier penalty than the one which was applicable at
the time the offence was committed may not be imposed ( s 37(7));

(c) no-one may be tried for an offence for which he or she has previously
been convicted or acquitted unless it is by the order of a superior court
(s 37(8));

(d) an accused is not compellable in a trial for an offence to be a witness

against themselves ( s 37(10));

(e) an accused is entitled to ensure a speedy trial. Section 37(14) provides

that in the event that the trial of a person is not commenced within
four months o f the date on which the accused was committed for trial,
a detailed report concerning the case is to be made by the Chief
Justice to the Minister responsible for the National Legal
Administration; and

( f ) every person convicted of an offence is entitled to have the conviction

and sentence reviewed by a higher court or tribunal according to law
( s 37(15)).

The enforcement of basic rights

The rights and freedoms provided for in ss 32-37 and 42-56 of the Constitution
may be enforced in the Supreme Court, the National Court or any other court.
An infringement of any right or freedom may be enforced by the person
concerned on her or his own initiative or upon the application by any person
who has an interest in the protection and enforcement of the infringed right or
freedom. Under s 57(1) of the Constitution the court may also entertain an
action by any person who has an interest in the protection of an infringed right
when that person acts on behalf of a person who is unable fully and freely to
exercise his or her rights under s 57. This applies whether or not the person
whose rights have been infringed had actually authorised the interested person.
Furthermore, under s 57(2) the law officers of Papua New Guinea, who are the
Principal Legal Advisors to the National Executive, the Public Prosecutor and
the Public Solicitor (Constitution, s 156), have an automatic interest in the
protection and enforcement of an infringed right. A court, under s 57(5), is not
limited to cases of actual or imminent infringement of the guaranteed rights or
freedoms under the Constitution but the court may, if it thinks proper to do so,
make orders and declarations where there is a reasonable probability of
infringement. By s 58, a court may also award damages against any person,
government body or person who was responsible to a government body
responsible for committing an infringement of any of the basic rights and
freedoms contained in the Constitution.

In practice, the basic rights provisions have fallen for consideration by the
judges of the National and Supreme Courts more in their breach rather than their
threatened breach. Specifically, basic rights arguments are often employed as
defences in criminal cases (and to a lesser degree in civil cases). Therefore, there
is now a fairly well established body of leading cases that indicate the breadth of
orders which the court will make when basic rights are breached. There is no
equivalent established body of cases dealing with the nature of orders for
threatened breaches of these rights. For example, in The State v Peter Painke
[I976]
4 Chapter 1

PNGLR 210; The State v Peter Painke (No 2) [1977] PNGLR 141, the accused
was discharged after a delay of 11 months before he was brought to trial as not
being a "fair hearing within a reasonable time" under s 37(3) of the Constitution.
In Constitutional Reference No 2 of 1978 [I9781 PNGLR 405, prison inmates
had their privileges extended after s 30 of the Corrective Act 1957 was declared
invalid as infringing s 37(15) of the Constitution. Similarly, in Constitutional
Reference No 3 of 1978 [I9781 PNGLR 421, s 1 l(3) of the Inter-Group Fighting
Act 1977 was declared invalid as depriving the accused of the presumption of
innocence (Constitution, s 37(4)(a)), and as a consequence there was a
discontinuance of police prosecutions. In The State v John Kosi (1981) N306, ss
61 and 62 of the Criminal Code on punishment for unlawful assembly were
interpreted as not infringing the rights to freedom of conscience, expression and
assembly established in ss 45-57 of the Constitution.

Two other general sections should be noted in respect of enforcement. The

Constitution provides an overriding enforcement section. By s 22, the
provisions of the Constitution shall not be left without effect because of the lack
of supporting machinery or procedural laws. Of more significance is the power
to impose sanctions under s 23. The National Court, unless the constitutional
law provides for enforcement, may impose imprisonment, fines, other "equally
effective remedy" or any order that it thinks proper for preventing or remedying
the breach. In Constitutional Reference No 1 of 1977 [I977] PNGLR 295, the
apparent overlap between the general ss 22 and 23 and the specific ss 57 and 58
was discussed, if not resolved. The overlap has not, however, proved
troublesome as the wide ambit of s 57(3) provides a plenary and discretionary
power to make "all such declarations as are necessary or appropriate". The
question of the relationship between ss 22 and 23 and ss 57 and 58 still remains,
in the words of Prentice DCJ, "for the future".

Constitutional interpretation and advisory opinions: ss

18,19
The judges of the Supreme Court have the responsibility for constitutional
interpretation. By s 18(1) of the Constitution, the Supreme Court has jurisdiction
on "any question relating to the interpretation or application of any provision of
a Constitutional Law". By s 18(2) questions of interpretation of the Constitution
go directly to the Supreme Court as a matter of original jurisdiction. Other
courts are obliged to refer questions relating to the interpretation of a
constitutional law to the Supreme Court.

On issues of constitutional interpretation, the Supreme Court has power to

decide on its own initiative subject to the terms of the Constitution. Bayne
suggests there are four elements to such a purposive mode of interpretation:
"In the first place, autochthony - cutting the legal tie - should render
irrelevant any pre-Independence statute law that had not been adopted, and
allows the courts to take a close look at the English common law or
outside decisions. Secondly, s 24 enables reference to the CPC Report and
the Constituent Assembly proceedings to resolve ambiguities or to give
content to general expressions in the Constitution. Thirdly, the Preamble
in general and the National Goals in particular provide statements of social
goals and values which are relevant in any case before the courts. Finally,
English common law or outside decisions would not be received as part of
the underlying law for the purposes of interpretation except after a strict
application of the tests for applicability; a strict view in constitutional
cases could be based on a recognition that the CPC was concerned that
interpretation of the Constitution should be faithful to the principles
inherent in it, and also from an awareness that it is more difficult for the
Parliament to change the effect of a rule of Constitutional interpretation of
the underlying law than other rules of underlying law".'
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
5

The most authoritative statement on the Supreme Court's adoption of the

purposive approach is to be found in Chris Haiveta v Paias Wingti (No 3) [I984]
PNGLR 197.

By s 19 (as amended by Constitutional Amendment No 3 – Provincial

Government (Consequential Amendments)), the Supreme Court is empowered to
give opinions on any question relating to the interpretation or application of any
provision of a constitutional law including a proposed law. Any such opinion
has the same binding effect as any other Supreme Court decision: s 19(2). Such
advisory opinions may be sought by a specific list of authorities alone under s
19(3) and they are as follows:

(a) the Parliament;

(b) the Head of The State, acting with, and in accordance with, the
advice of the National Executive Council;
(c) the Law Officers;
(d) the Law Reform Commission;
(e) the Ombudsman Commission;
(ea) a provincial assembly or a local-level government;
(eb) a provincial executive;
(ec) a body established for the settlement of inter-government disputes;
( f ) the Speaker of Parliament (in cases where, before certification of an
Act
there is a doubt as to the validity of that Act: Constitution, s 137(3)).

The procedure is an effective method for resolving constitutional issues pending

or during a trial by removing them to the Supreme Court. This avoids the
problem of having to await verdict and then appeal the constitutional issue. The
original interpretive and advisory constitutional jurisdiction has been and will
remain of importance to the development of criminal law and procedure.

1 Baynr. "The C o n \ t i l u t i o n in [he Court\ 1975.I9XO" 111 Wcisbrot, I'al~wala and Sawyerr (eds). LIIW d1111 S O C ~
~
( : / ~ m ~ y r if1 1'1pfd N w GII~IIPII ( 1982). p 122.

6 Chapter 1
CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA
NEW GUINEA

[Selected Sections Relating to Criminal Law]

18. Original interpretative jurisdiction of the Supreme Court.

(1) Subject to this Constitution, the Supreme Court has original jurisdiction,
to the exclusion of other courts, as to any question relating to the interpretation
or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the

interpretation or application of any provision of a Constitutional Law arises in
any court or tribunal, other than the Supreme Court, the court or tribunal shall,
unless the question is trivial, vexatious or irrelevant, refer the matter to the
Supreme Court, and take whatever other action (including the adjournment of
proceedings) is appropriate.

When any question relating to the interpretation of the Constitution or a

constitutional law arises in any court under s 18(2) and is referred to the
Supreme Court, it must arise out of a factual situation established by the lower
court, and all findings of fact necessary for the interpretation must be made by
the court or tribunal before making the reference. Until this is done no question
relating to interpretation arises.2

See SCR No 4 of 1980; Re Petition of Michael Thomas Somare [I981] PNGLR

265 on the question of whether the Leader of the Opposition had standing under
this section.

In Tohian v Geita and Mugugia [I990] PNGLR 353 Los J held that in
considering whether grounds exist for referring a question relating to the
interpretation or application of a provision of a constitutional law to the
Supreme Court, the court or tribunal must decide:

(a) whether the proposed question related to an interpretation or

application of any constitutional law: SCR No 12A of 1984; Joe
Parakas v The State [I985]PNGLR 224;

(b) whether the question was "trivial, vexatious or irrelevant"; and

(c) whether there are sufficient findings of fact upon which the
Supreme Court could deliberate in order to determine the proper
interpretation or application of the constitutional law: SCR No 3 of
1982; Re ss 57 and 155(4) o f the Constitution [1982] PNGLR 405.

A magistrate hearing committal proceedings under the District Courts Act (Ch
40) is not exempt from the obligation imposed on "any court or tribunal" to
consider whether grounds exist for referring a question allegedly relating to the
interpretation or application of a provision of a constitutional law to the
Supreme Court pursuant to s 18(2).3

2 In the Matter of an Application by the Public Solicitor SCR No 3 of 1982 [1982] PNGLR 405.
3 Tohian v Geita and Mugugia [1990] PNGLR 353
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 7

19. Special references to the Supreme Court.

(1). Subject to Subsection (4), the Supreme Court shall, on application by an

authority referred to in Subsection (3), give its opinion on any question relating
to the interpretation or application of any provision of a Constitutional Law,
including (but without limiting the generality of that expression) any question as
to the validity of a law or proposed law.

(2). An opinion given under Subsection (1) has the same binding effect as
any other decision of the Supreme Court.

(3). The following authorities only are entitled to make application under
Subsection (1) -

(a). the Parliament; and

(b). the Head of The State, acting with, and in accordance with, the
advice of the National Executive Council; and

(c). the Law Officers of Papua New Guinea; and

(d). the Law Reform Commission; and

(e). the Ombudsman Commission; and

(ea). a Provincial Assembly or a Local-Level Government; and

(eb). a provincial executive; and

(ec). a body established by a Constitutional Law or an Act of the

Parliament specifically for the settlement of disputes between
the National Government and Provincial Governments or Local-
level governments, or between Provincial Governments, or
between Provincial Governments and Local-level Governments,
or Local-level governments; and

(f). the Speaker, in accordance with Section 137(3) (Acts of

Indemnity).

[Subs (3) (ea) insrt Constitutional Amendment No 3 – Provincial Government (Consequential Amendments);
subst Constitutional Amendment No 16 – Provincial Governments and Local-level Governments; Subs (3)(eb)
insrt Constitutional Amendment No 3 – Provincial Government (Consequential Amendments); Subs (3)(ec)
insrt Constitutional Amendment No 3 Provincial Government (Consequential Amendments)]

(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme
Court may make provision in respect of matters relating to the jurisdiction of the
Supreme Court under this section, and in particular as to-

(a) the form and contents of questions to be decided by the Court; and

(b) the provision of counsel adequate to enable full argument before the
Court of any question; and
 (c) cases and circumstances in which the Court may decline to give an
opinion.

(5) In this section, “proposed law” means a law that has been formally placed
before the relevant law-making body.

Kapi J held in SCR No 4 of 1980; Re Petition of Michael Thomas Somare [1981]

PNGLR 265 that a rule be formulated under Sch 2.3 on standing, and the rule
should be
8 Chapter 1

that an applicant must have sufficient interest in the matter to which the
application relates. This test of sufficient interest is objective. Accordingly, this
section does not cover the field in relation to those having standing to apply to
the court on matters of public interest.

Kearney DCJ and Greville-Smith J dissented in SCR No 4 of 1980; Re Petition

of Michael Thomas Somare [I981] PNGLR 265 and held that the Leader of the
Opposition was not included in this section, and as this section exhaustively
covered the field of those having standing to challenge the validity of a law,
there is no scope or need to use the judicial initiatives of jurisdictions with
different constitutional structures.

In SCR No 4 of 1980; Re Petition of Michael Thomas Somare [I981] PNGLR

265 at 269 the Chief Justice expressed the view that while s 19 enumerated the
authorities who could protect the public interest, in practice these authorities
only intervened in matters involving their own area of operation.

22. Enforcement of the Constitution.

The provisions of this Constitution that recognize rights of individuals

(including corporations and associations) as well as those that confer powers or
impose duties on public authorities, shall not be left without effect because of
the lack of supporting, machinery or procedural laws, but the lack shall, as far as
practicable, be supplied by the National Court in the light of the National Goals
and Directive Principles, and by way of analogy from other laws, general
principles of justice and generally-accepted doctrine.

23. Sanctions.

(1) Where any provision of a Constitutional Law prohibits or restricts an

act, or imposes a duty, then unless a Constitutional Law or an Act of the
Parliament provides for the enforcement of that provision the National Court
may-

(a) impose a sentence of imprisonment for a period not exceeding

10 years or a fine not exceeding K10000.00; or

(b) in the absence of any other equally effective remedy under the
laws of Papua New Guinea, order the making of compensation
by a person (including a governmental body) who is in default,
or both, for a breach of the prohibition, restriction or duty, and
may make such further order in the circumstances as it thinks
proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or

imposes a duty, the National Court may, if it thinks it proper to do so, make any
order that it thinks proper for preventing or remedying a breach of the
prohibition, restriction or duty, and Subsection (1) applies to a failure to comply
with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in
an order under Subsection (2) an anticipatory order under Subsection (1).
See Constitutional Reference No I of 1977 [I977] PNGLR 362, annotated under
s 57
and, also, The State v Peter Painke [I976] PNGLR 210; The State v Peter
Painke (No2)
[I977] PNGLR 141.
Standing to apply under this section is not governed by s 19 but by reference to
laws adopted or formulated under Sch 2.''

4 Supreme Court Reference No 4 of 1980; Re Petition of Michael Thomas

Somare [198l] PNGLR 265 (Kapi J).
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 9

Division 3 - Basic Rights

Subdivision A – Introductory

For a general discussion of human rights in Papua New Guinea, see Brunton,
"Human Rights in PNG and the Prospects for International Supervision" (1980)
8 MLJ 143.

32. Right to freedom.

(1) Freedom based on law consists in the least amount of restriction on the
activities of individuals that is consistent with the maintenance and development
of Papua New Guinea and of society in accordance with this Constitution and, in
particular, with the National Goals and Directive Principles and the Basic Social
Obligations.

(2) Every person has the right to freedom based on law, and accordingly has
a legal right to do anything that –

(a) does not injure or interfere with the rights and freedoms of others;
and

(b) is not prohibited by law, and no person –

(c) is obliged to do anything that is not required by law; and

(d) may be prevented from doing anything that complies with the
provisions of paragraphs (a) and (b).

(3) This section is not intended to reflect on the extra-legal existence, nature
or effect of social, civic, family or religious obligations, or other obligations of
an extra-legal nature, or to prevent such obligations being given effect to by law.

Subdivision B – Fundamental Rights

35. Right to life.

(1) No person shall be deprived of his life intentionally except –

(a) in execution of a sentence of a court following his conviction of an

offence for which the penalty of death is prescribed by law; or

(b) as the result of the use of force to such an extent as is reasonable in

the circumstances of the case and is permitted by any other law –

(i) for the defence of any person from violence; or

(ii) in order to effect a lawful arrest or to prevent the escape of a

person lawfully detained; or

(iii) for the purpose of suppressing a riot, an insurrection or a

mutiny; or

(iv) in order to prevent him from committing an offence; or

 (v) for the purpose of suppressing piracy or terrorism or similar
acts; or
(c) as the result of a lawful act of war.
(2) Nothing in Subsection (1)(b) relieves any person from any liability at
law in respect of the killing of another.

See ss 289 et seq regarding homicides and related offences and see s 209 of the
Criminal Code.

36. Freedom from inhuman treatment.

(1) No person shall be submitted to torture (whether physical or mental), or

to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent
with respect for the inherent dignity of the human person.

(2) The killing of a person in circumstances in which Section 35(1)(a) (right

to life) does not, of itself, contravene Subsection (1), although the manner or the
circumstances of the killing may contravene it.

Sections 36(1), 37(17) and 41(1) of the Constitution require that treatment in
prison shall not be harsh, oppressive, cruel or inhuman. If there is a prison law
which is harsh or oppressive, a prisoner can have the law declared
unconstitutional under these sections as an infringement of fundamental rights.
Similarly, if a particular treatment which a prisoner receives imprison is harsh or
oppressive then, even though it is not covered by a prison law, that treatment or
practice can be stopped as an infringement of the prisoner’s fundamental rights. 5

In Tom Amaiu v Commissioner of Corrective Institutions and the State [1983]

PNGLR 87 it was found that the prison regime in “B” Division (maximum
security) of Bomana Goal involved inhuman treatment in violation of
constitutional guarantees. The prisoner petitioner was awarded damages (both
compensatory and exemplary), and orders were made closing “B” Division,
requiring the Corrective Institutions Department to draw up new regulations and
introduce a new regime, and to barring warders who served in the old “B”
Division from being assigned to the new “B” Divisions for two years.6

See Heni Pauta and Kenneth Susuve v Commissioner of Corrective Institutions

and his Servants and Agents [1982] PNGLR 7, annotated under s 57(3) below.

See ss 57-58 regarding remedies for breaches of fundamental rights.

In Special Constitutional Reference No 1 of 1984 [1984] PNGLR 314 one of the

questions was whether provisions of the Criminal Code (Minimum Penalties)
(Amendment) Act 1983, and related amendments were contrary to s 36(1) of the
Constitution. The court held that such provisions do not offend s 36(1) of the
Constitution. Kidu CJ reasoned (at 318) that:

“[S]ection 36(1) was meant to prohibit cruel, degrading and inhumane

punishment and treatment and nothing else. Minimum penalties were far
from the minds of those who constituted the Constituent Assembly when s
36(1) was sanctioned and the Constitutional Planning Committee (CPC)
did not, quite clearly from its recommendation, have them in mind either.”
37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the
succeeding provisions of this section are intended to ensure that that right is
fully available, especially to persons in custody or charged with offences.

5 Tom Amaiu v Commissioner of Corrective Institutions and the State [1983] PNGLR 87.
6 Tom Amaiu v Commissioner of Corrective Institutions and the State [1983] PNGLR 87 (Bredmeyer J).
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 11

Section 37(1) means that no aspect, or at least no major aspect, of a prisoner's

treatment should be at the whim of the officer-in-charge or of any warder; the
warders must treat a prisoner in accordance with the laws. If they fail to do so
the prisoner can seek redress under ss 57 and 58 of the Constitution. Redress
may be in the form of damages or an order compelling the warders to do
something or ordering them not to do something.'

In Tom Amaiu v Commissioner of Corrective Institution and the State [I9831

PNGLR 87 it was held that there must be a law providing for the periodic review
of each prisoner's confinement in "B" Division. Medical evidence indicated that
confinement in "B" Division under its present regime could lead to serious
mental illnesses. For the law regulating how a detainee gets out of "R" Division
to be humane and not cruel, harsh or oppressive, the medical officer should have
some say in the release of the person.

For the officer-in-charge of a prison division to impose his own form of special
punishment (here, "special confinement") for misconduct in the division, or for
detainees who come to the division with bad reputations as troublemakers
elsewhere, is ultra vires the Corrective 1nstitutions Act and Corrective
Institutions Regulations which specify the forms of punishment allowed: Tom
Amaiu v Commissioner of Corrective Institutions and the State [1983] PNGLR
87.

See The State v Turi [I986] PNGLR 221 for a discussion on "the right to the full
protection of the law".

(2) Except, subject to any Act of the Parliament to the contrary, in the
case of the offence commonly known as contempt of court, nobody may be
convicted of an offence that is not defined by, and the penalty for which is not
prescribed by, a written law.

Under s 19 of the Criminal Code, a judge may impose any of the lesser
punishments prescribed (upon a conviction for wilful murder under s 299 where
there is a maximum sentence of life imprisonment). The crime of wilful murder
is a statutory offence and the only punishment that can be posed is set out under
the Code. A judge has no power to impose any other punishment. Under s 7(e)
of the Native Customs Recognition Act, custom shall be taken into account in
determining the penalty (if any) to be imposed on a guilty party. This means that
a particular custom (defined by s 4 of that Act, and recognised and enforced
under s 6 of that Act and Sch 2.1 of the Constitution) may be taken into account
to explain the offender's behaviour; for example, the offence may have been
committed under customary pressure. Custom used in this sense becomes a
mitigating factor (see R v Asis (1970) No559 (Clarkson J); R v Iu Ketapi [1971-
19721 PNGLR 44; R v Lakalyo Neak (1971) No632), providing a cultural
justification of the offender's behaviour, which reduces their culpability or
blameworthiness. In some instances, the custom may increase the seriousness of
the offender's behaviour. For instance, in incest cases, custom may regard it as
immoral and may call for severe punishment. A court may also take into account
customary punishment in the same way, for example, whether the offender is
liable to pay compensation whatever the court's decision might be: R v Kaupa
(1973) No765. All of this means that a judge may increase or decrease the
sentence depending on whether custom mitigates or aggravates the offence and
may impose the appropriate sentence within the range given by law. Section 7(e)
of the Native Customs Recognition Act does not enlarge the power of the court
under ss 19 and 209 of the Code; it may only operate within

7 Tom Amaiu v Commissioner of Corrective Institutions and the State [1983] PNGLR 87.
12 Chapter 1

the range provided by those sections: Acting Public Prosecutor v Uname

Aumane
[I980] PNGLR 510 (Kapi J, with Kearney DCJ agreeing).

A person may not be punished until found guilty of an offence according to law.
Under s 37(2) of the Constitution "nobody may be convicted of an offence that
is not defined by, and the penalty for which is not prescribed by, a written law".
A "written law" refers to an Act of Parliament (including any law made under
the Act), organic laws and the Constitution. The term has been used to
distinguish it from what may be called the unwritten laws, custom as adopted
under Sch 2.1 of the Constitution, common law as adopted under Sch 2.2 and the
underlying law as developed under Schs 2.3 and 2.4: Acting Public Prosecutor v
Uname Aumane [1980] PNGLR 5 10.

As a matter of law, a court can only impose the penalty provided by statute (in
this case the Criminal Code). This court has no power to impose any customary
punishment. The adoption, application and enforcement of customary law under
Sch 2.1 of the Constitution is subject to, amongst other things, an Act of
Parliament which regulates the use of customary law (Sch 2.1(3)(b)), such as the
Native Custom (Recognition) Act. Under s 7(e) of this Act, custom may be taken
into account in punishment, to mitigate or aggravate the sentence to be imposed.
However, ultimately, the penalty to be imposed is as provided for under the
Criminal Code (in this case of wilful murder) and there is no power in the court
to impose customary punishment. Further, there is no room for developing the
underlying law in this case. The development of an underlying law under Sch
2.3 arises only when there appears to be no rule of law that is applicable. In this
case the Criminal Code is applicable. As to what the role of customary law
should be in such cases, these are matters for the legislature rather than for the
court: Acting Public Prosecutor v Uname Aumane [I9801 PNGLR 510 (Kapi J,
with Kearney DCJ agreeing).

The Constitution of Papua New Guinea (unlike that of Vanuatu) does not give
courts power to punish breaches of customary law not defined by a written law:
Rebeka Ambi v Mary Rabi (1980) No279 (Narokobi AJ).

See the Customs (Recognition) Act regarding the circumstances in which custom
may be recognised, applied and enforced by the courts.

Under s 223 of the Criminal Code, see Sangumu Wautu v The State [I978]
PNGLR 326 and see s 42(l)(b) of the Constitution.

(3) 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.

This section has no application to disciplinary proceedings: Public Employees

Association of PNG v Public Services Commission [1983] PNGLR 206.

Though the words of s 37(3) do not cover the case of an appeal, this subsection
is just as applicable to someone who is appealing against conviction as to
someone awaiting trial, especially when read in conjunction with s 37(16) and
(17). The words of the Constitution are not hollow. They are there and until they
are changed the administrators and finance officials must take them into account
and ensure that appeals against conviction may be heard within a reasonable
time. The Constitution forms the very backbone of our country's laws and no
judge or magistrate should tolerate a situation which prevents the requirements
of that law being carried into effect: Waraniya Wariko v Luke Pangou (1981)
N290(L).
THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 13

In The State v Peter Painke [1976] PNGLR 210 the section was held to have
been contravened where it was some 14-16 months since the alleged offence
was committed, 11 months since the accused was committed for trial and six
months since the case first came before the court for trial. The section was also
held to have been contravened when there was a 10 month delay in bringing the
proceedings on: The State v Peter Kakam Borarae [I984] PNGLR 99 (Woods J).

An amendment to an indictment does not necessarily amount to a refusal to

afford "a fair hearing within a reasonable time": The State v Tanedo [I975]
PNGLR 395.

If a fair hearing requires upon the evidence a determination of the merits of the
case in favour of the accused, that right cannot be defeated by permitting the
state to withdraw the charge, particularly if the nature of the withdrawal does not
preclude further proceedings. For the state to enter a nolle prosequi at a stage of
a trial when the state had called all the evidence available, and it was insufficient
to sustain the charge, was to deny the accused a fair hearing: R v Abia Tambule
[I9741 PNGLR 250 at 253 (Frost SPJ and Minogue CJ).

"The authorities indicate that, when a person is charged with a criminal

offence, he is entitled to a fair trial within a reasonable time. I do not,
however, think it follows that, he is entitled to immediate discharge as a
matter of right. If the delay is without reasonable explanation, the Court
may enforce the accused's right by compelling the trial to commence or
dismiss the case in its discretion. However, in all cases, s 552 of the
Criminal Code should be used as a procedure for the enforcement of
Constitution s 37(3) breaches. Section 37(3) without question, provides
a safeguard for accuseds against undue delays of their trials. That right
to a speedy trial is itself a substantive ground for an application to be
brought to trial under s 552 of the Criminal Code per Los J in Jeffrey
Balakau v The State (OS 401/95)."8

See ss 521-552 of the Criminal Code, ss 155 and 163-166 of the Constitution,
and the National Court Act 1975. See s 539 of the Criminal Code regarding
nolle prosequis.

Where the trial of an accused has been interrupted and delayed by the National
Court's reservation of questions of law pursuant to [old] s 20 of the Supreme
Court Act, the Supreme Court may protect an accused's right to a speedy trial
under s 37(3) of the Constitution by directing the National Court (under s 57 of
the Constitution) to have the trial completed forthwith. The accused is entitled to
have his or her name cleared, just as the prosecution is entitled to know whether
its charge has been sustained: Supreme Court Reference No 3 of 1979: The State
v John Rumet Kaputin [I979] PNGLR 532 at 535.

In The State v Tom Watinga [I994] PNGLR 255, an information was withdrawn
under s 37(3) due to an unreasonable delay in prosecution. The court held that
charging the defendant with the same offence five months later was an abuse of
process:

"In my view, there is no question that the Court has an inherent

jurisdiction to strike out a subsequent information ... founded on the
same facts as those on which a previous information is based or forming
or being part of a series of offences based on the one information. There
is also no question that this Court has the jurisdiction to prevent any
abuse of its process, where a litigant uses the court process in an
improper way".9

8 The State v Jeffrey Balakau (1996) N1528 (Atari AJ). -

9 The State v Tom Watinga [1994] PNGLR 255 at 260-261 (Sawing AJ).

14 Chapter 1

(4) A person charged with an offence –

(a) shall be presumed innocent until proved guilty according to law, but a
law may place upon a person charged with an offence the burden of
proving particular facts which are, or would be, peculiarly within his
knowledge; and

(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; and

(c) shall be given adequate time and facilities for the preparation of his
defence; and

(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; and

(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 entitled to legal aid, by the Public Solicitor or another legal
representative assigned to him in accordance with law; and

(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.

[Subs (4)(a) am Constitutional Amendment No 13 – Protection of the Law. Note that some copies
of the amendment mistakenly refer to “Section 73” of the Constitution.]

The words "according to law" in s 37(4)(a) encompass all the laws of Papua
New Guinea as set out in s 9 of the Constitution, including the underlying law. It
is a principle of the underlying law that the presumption of innocence continues
until a court is satisfied beyond reasonable doubt of the guilt of the accused: The
State v John Kobe [I976] PNGLR 562. The proviso to s 37(4)(a) is taken to
apply only to the essential ingredients or elements of the offence as they are
defined and required to be proved according to law. Where the defence provided
for introduces new matter altogether unrelated to the elements of the offence,
proof of which will enable the defendant to avoid a finding of guilt, the
provision of such a defence does not affect the presumption of innocence having
regard to what the prosecution is required to prove in order to establish the
offence as defined. Here the offence of passing valueless cherubs under s 22A of
the Police Offences Act (Papua) 1912 (now repealed) contains a number of
elements, but an intent to defraud is not among them. The defence provided for,
namely establishing a lack of intention to defraud, introduces a new ingredient
which is not in contravention of the Constitution: Supreme Court Reference No I
of 1980; Re s 22A(b) Police Offences Act; Biyang v Liri Haro [I981] PNGLR 28
(Miles J, with Andrew J concurring).

The history of s 37(4)(a) was traced (through the Human Rights Act 1971, s
16(3)(a) and the Final Report of the Constitutional Planning Committee Pt I at p
5/1/24) by Saldanha J in Constitutional Reference, No 3 of 1978 [1978] PNGLR
421 at 428.

As a result of s 37(4)(a), the law in Papua New Guinea relating to the proof of
guilt in criminal cases is that the onus is on the prosecution to prove each
element of the offence charged beyond reasonable doubt, subject to the
following exceptions:
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 15

(a) in the case of a defence of insanity, where there is a presumption of

sound mind until the contrary is proved;

(b) where an enactment prohibits the doing of an act save in specified

circumstances, or by persons of specified classes, or
with special qualification or with the licence or persuasion of
specified authorities, then once the prosecutor has proved beyond
reasonable doubt the doing of the act, the burden is on the
persons charged to bring themselves within the exception or proviso, that
is, to prove that they were entitled to do the prohibited act, independently
of whether the facts they must prove to do so are, or would with the
exercise of reasonable care be, peculiarly within their knowledge; and

(c) in the case of an enactment which places upon the persons charged
the burden of proving particular facts which are, or would with the
exercise of reasonable care be, peculiarly within their knowledge:
Supreme Court Reference No 1 of 1980; Re s 22A(b)
Police Offences Act; Biyang v Liri Haro [1981) PNGLR 28.

The intention of the framers of the Constitution must have been, subject to the
proviso contained in this section, to adopt the concept of the so-called
presumption of innocence as it stood in the common law of England at the time
of the coming into force of the Constitution. The general rule is that in criminal
cases it is for the prosecution to prove, and to prove beyond reasonable doubt,
every element of the alleged offence: see Woolmington v DPP [I935] AC 462 at
483. The rule applies equally to negative elements as well (for example, absence
of consent in rape cases), but is subject to exceptions in the case of the insanity
defence, any statutory exception, and exceptions relating to matters peculiarly
within the knowledge of the accused: R v Edwards [1974] 2 ,AII ER 1085.
Section 37(4)(a) was thus designed implicitly to accommodate and also
expressly to accommodate certain shifts in the onus of proof of factual
ingredients of offences, or putting it somewhat differently, in the persuasive
proof of ultimate facts. It was not the intention or effect of the proviso to cut
down the law or radically alter the law then being adopted, except that the
general rule as expressed in Woolmington v DPP is no longer subject to "any
statutory exception", but only to such statutory exceptions as the Constitution
allows: Supreme Court Reference No I of 1980; Re s 22A(b) Police Offences
Act; Biyang v Liri Haro [1981] PNGLR 28 (Greville-Smith J).

Refusing to make admissions to the police is not an aggravating circumstance

for the purposes of sentencing. It amounts to no more than an accused standing
on rights: The State v Minambkali Asu, Lakap Erapae and John Koipui (1980)
N236.

For a discussion on the international recognition of the presumption of

innocence, see the judgment of Miles J in Supreme Court Reference No I of
1980 [I981] PNGLR 28.

Re s 37(4)(a) and (l0), see The State v Lasebose Kuriday (1981) N300.

The section places on the prosecution the burden of proving the guilt of the
person charged "according to law". The phrase '[according to law" must be
interpreted to mean existing relevant laws. The provisions must therefore be
read along with Ch 5 of the Criminal Code, the operation of which excludes s
14(2) of the Summary Offences Act. Therefore, s 14(2) of the Summary Offences
Act is not inconsistent with s 37(4)(a) of the Constitution. In any case, s 14(2) is
not a law which creates an offence of which a person charged is presumed
innocent until proved guilty according to law: Supreme Court Reference No 2 of
1980 [1981] PNGLR 5O.
16 Chapter 1

Trial on separate indictments of itself is not necessarily a material irregularity

that infringes constitutional rights under s 37(4): The State v Leo Nimo [I980]
PNGLR 129.

Section 37(4)(d) makes it mandatory that every person charged shall have the
assistance of an interpreter if that person cannot understand or speak the
language used at the trial of the charge. Although the trial does not begin until
the accused pleads to the charge, the jeopardy begins from the day of arrest: The
State v Lakio Tambai (1980) N235.

The right of an accused to choose counsel under s 37(4)(e) cannot be an absolute

right. For example, the right cannot extend to a right to have counsel who is
employed as a the State Prosecutor to defend the accused, or the Public
Solicitor's Office if the accused is not entitled to legal aid, or a particular officer
of the Public Solicitor's Office, or a counsel who has by acceptance of a prior
brief become engaged so as to be unavailable at the time of the trial, or who, as
in this case, is disqualified on ethical grounds. These exceptions are not
exhaustive. The accused's choice is subject to all proper exceptions. One thing
that the right conferred by s 37(4)(e) does is to prevent accused persons being
assigned, against their will by the State, a defence counsel whom they did not
want: Supreme Court Reference No 3 of 1980; Re Joseph Mavuk [I980] PNGLR
507.

The word "peculiarly" does not mean "solely" or "exclusively". It has

connotations of "especially" or "in the ordinary course of things likely to be". In
this sense, although a person may be confused about their own psychological
processes and may on a mistaken view of the law believe that they are acting
honestly, ultimately the question of fact whether they have an intent to defraud
is something about which they above all others have a special knowledge. In this
sense, the presence or absence of a lack of intent to defraud as a question of fact
is one which is peculiarly within the knowledge of the person charged: Supreme
Court Reference No I of 1980 [I981] PNGLR 28 (Miles J, with Andrew J
agreeing).

In Supreme Court Reference No 3 of 1978; Inter-Group Fighting Act 1977

[I978] PNGLR 421, it was held that s 11 of the Inter-Group Fighting Act is
unconstitutional as s 11(3) provides that a person charged with an offence
against the section is guilty of that offence unless they prove, to the satisfaction
of the court, that they did not take part in the actual fighting. The section was
contrary to the presumption of innocence.

See ss 521, 523, 552, 556, 560, 563 and 566-573 of the Criminal Code and ss
102, 107, 128 and 129 of the District Courts Act.

(5) 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, but 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 he has been duly served with a
summons in respect of the alleged offence.
To the extent that s 125 of the District Courts Act [prior to amendment, s 131 of
the District Courts Act] enables an information of a simple offence punishable
by imprisonment to be heard in the absence of the defendant, it is therefore a
provision which goes beyond s 37(5) of the Constitution, and is inconsistent
with it. However, the severability clause found in s 10 of the Constitution does
save the section in a reduced form, allowing its continued application to simple
offences
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 17

(any offence punishable on summary conviction) punishable otherwise than by

imprisonment (except in default of payment of a fine): Supreme Court Reference
No 1 of 1976(P); Peter Rakatani v South Pacific Brewery Ltd [I976] PNGLR
537 (Frost CJ and Kearney J).

Section 37(5) should be read together with s 37(14) which adopts a standard of
trials being heard within four months of committal. It was stated in The State v
Peter Painke (No2) [I977] PNGLR 141 :

"It seems to me manifestly clear that it is desirable not only in order to

achieve the National Goals and Directives, but also to secure the basic
rights to individuals, that certain classes of charges involving possible
imprisonment, should be capable of being heard summarily in the
absence of the defendant if he consents - thus avoiding his arrest and
compulsory attendances in court - even though potentially [although
unlikely] imprisonment could result ... [the Supreme] Court should be
prepared and is empowered to not only eliminate a phrase from an Act if
by so doing constitutional validity could be secured with what it
construed as Parliament's intention; but also to add or change a phrase
with the intent of construing (translating) an Act so that it is valid and
still expressing the clear Parliamentary intent - 'legislating' though
Constitutional experts of other lands might consider this process to be."

Thus, this section should be read so as to allow ex parte proceedings, even

where there is a possibility of imprisonment, upon the consent of the defendant:
Supreme Court Reference No 1 of 1976(P); Peter Rakatani v South Pacific
Brewery Ltd [1976] PNGLR 537 (Prentice DCJ, dissenting).

In Thomas Kavali v Thomas Hoihoi [I986] PNGLR 329, on the issue of whether
the right of a person charged to be present at their trial can be waived, Kidu CJ,
Woods and Barnett JJ held as follows:

 Section 37(5) of the Constitution entrenches the right of the person

charged with an offence to be present at his trial. As it is the duty of the
courts zealously to guard the rights entrenched in the Constitution, the
courts must ensure, before such a right is denied, that the circumstances
of the particular person come within the exceptions (if any) specifically
outlined in the Constitution.

 The right guaranteed by s 37(5) of the Constitution applies in respect of

all offences subject only to the exceptions provided for in the section
itself.

 For the right guaranteed by s 37(5) of the Constitution to be waived by

the person charged requires special circumstances from which the court
must be satisfied that the person charged elects to be absent, and absents
himself through caprice, malice or for the purposes of embarrassing the
trial: R v Jones (No 2) (1972) 56 Cr App R 413 at 428 and 433 followed.

In The State v Arey Watu [I992] PNGLR 475, Doherty J (at 478-479) interpreted
s 37(5) as follows:

"[Section] 37(5) envisages 2 situations where a trial may proceed in the

absence of a defendant:
(1) where he consents to the proceeding in his absence and;

(2) where his conduct within the court is such that the Court
proceedings become impracticable and, as a result, the Court orders
that proceedings continue without him .... Woods J in Thomas
Kavali v Thomas Hoihoi [I986] PNGLR 329 at 337 said, 'I am satisfied
that
18 Chapter 1

consent can be implied by actions as well as by express consent, however such

actions must be capable of unambiguous interpretation.' Thus, one must look at
the circumstances surrounding the failure to appear and only if those
circumstances show deliberate intention not to appear in Court can consent be
implied. Woods J gives the example of the person who walks out of the hearing
with no explanation, effectively saying, 'I do not care if you carry on'. The
Supreme Court suggested a person who has absconded shows an intention not to
appear and may, thereby, imply consent to the hearing proceeding in his absence
.... I consider escaping shows a definite decision to be absent voluntarily."

(6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable

conditions that 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.

(7) No person shall be convicted of an offence on account of any act 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.

See ss 2 and 11 of the Criminal Code and s 20 of the District Courts Act.

(8) 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.

"[Section] 560(2)(e) and s 564 of the Criminal Code and s162(2) of the
District Courts Act recognize and re-enforce the accused's right under s
37(8) of the Constitution."'10

See ss 16, 17, 557 and 560 of the Criminal Code.

(9) No person shall be tried for an offence for which he has been pardoned.

See s 560(f) of the Criminal Code.

(10) No person shall be compelled in the trial of an offence to be a witness

against himself.

It is the privilege of a witness to decline to answer questions because those

answers might tend to incriminate her or him. This privilege must be claimed by
the witness, although the judge will often warn a witness of their rights. It must
be a bona fide claim by the witness for self-protection and not to assist others,
and it appears the claim will not be accepted as bona fide if the witness has
already by other admissions been made liable to prosecution for the offence: R v
B (1969) N561.

See also R v Wendo [ 1963] PNGLR 21 7 at 320-321 and R v Simbene

Dandemb [1969- 1970] PNGLR 207.

10 The State v John Nugints [1994] PNGLR 493 at 497 (Injia AJ).
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 19

The court may not impute guilt from silence. However, if an accused person
decides to remain silent and not call witnesses, the court is entitled to proceed to
verdict on the basis of prosecution evidence: Tabo Sipo v Mukara Meli (1980)
N240.

For a discussion of the practical application of an assertion of the right to remain

silent, see Paulus Pawa v The State [1981] PNGLR 498.

For a discussion of the effect of the failure of a judge or magistrate to advise a

defendant of the right to remain silent during the proceedings, see Koi Konom v
Nelson Watai (1981) N297(M) under s 572 of the Criminal Code.

See s 572 of the Criminal Code regarding evidence in defence. See s 562
regarding standing mute upon being called to plead.

(11) 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.

(12) 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.

(13) Nothing in Subsection (12) prevents a court or other authority from

excluding from the hearing of the proceedings before it 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 welfare or in circumstances
where publicity would prejudice the interests of
justice, the welfare of persons under voting age 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.

See s 566 of the Criminal Code.

(14) In the event that the trial of a person 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 by the Chief Justice to the Minister
responsible for the National Legal Administration.

See note on The State v Peter Painke (No2) [1977] PNGLR 141 under s 37(3)

(15) Every person convicted of an offence is entitled to have his conviction

and sentence reviewed by a higher court or tribunal according to law.

Section 27 of the Supreme Court Act does not prohibit appeals; it merely
regulates the right of appeal. Section 37(15) of the Constitution subjects this
right to a requirement that it be according to law; therefore a law imposing a
time limit on appeals is not unconstitutional but is a "law" within the phrase
"according to law": Avia Aihi v The State (No 1) [I981] PNGLR 81.

There is no distinction between the words "review" in this subsection and

“appeal” in s 37(16): Avia Aihi v The State (No 1) [I981] PNGLR 81.
20 Chapter 1

(16) No person shal1 be deprived by law of a right of appeal against his

conviction or sentence by any court that existed at the time of the conviction or
sentence, as the case may be.

Section 30 of the Corrective Institutions Act was unconstitutional where it

provided that there was no appeal from a finding or extension of sentence from a
visiting justice or magistrate in relation to corrective institution and police lock-
up offences: In the Matter of (a Special Reference Under s 19 of the Constitution
[19781] PNGLR 404.

See ss 225-226 of the District Courts Act and s 4 of the Supreme Court Art.

(17) All persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person.

Sections 36(1), 37(17) and 41(1) of the Constitution require that treatment in
prison shall not be harsh, oppressive, cruel or inhuman. If there is a prison law
which is harsh or oppressive, a prisoner can have the law declared
unconstitutional under these sections as an infringement of fundamental rights.
Similarly, if a particular treatment which a prisoner receives in prison is harsh or
oppressive then, even though it is not covered by a prison law, that treatment or
practice can be stopped as an infringement of fundamental rights: Tom Amaiu v
Commissioner o f Corrective Institutions and the State [1983] PNGLR 87.

See Heni Pauta and Kenneth Susuve v Commissioner for Corrective Institutions
and his Servants and Agents [I982] PNGLR 7, annotated under s 57(3) below.

See ss 57-58 of the Constitution regarding remedies for breaches of fundamental

rights.

(18) Accused persons shall be segregated from convicted persons and shall
be subject to separate treatment appropriate to their status as unconvicted
persons.

See Corrective Institutions Regulations, regs 104-108

(19) Persons under voting age who are in custody in connection with an
offence or alleged offence shall be separated from other persons in custody and
be accorded treatment appropriate to their age.

For sentencing considerations relevant to youthful offenders, see cases discussed

under s 596 of the Criminal Code, especially Acting Public Prosecutor v
Clement Maki & Tom Kasen (1981) SC205.

See Heni Pauta and Kenneth Susuve v Commissioner for Corrective Institutions
arid his Servants and Agents [I982] PNGLR 7, annotated under s 57(3) below.

See Corrective Institutions Regulations, regs 104 -108.

(20) An offender shall not be transferred to an area away from that in which
his relatives reside except for reasons of security or other good cause and, if
such a transfer is made, the reason for so doing shall be endorsed on the file of
the offender.
 (21) Nothing in this section-

(a) derogates Division IIIA (principles of natural justice); or

(b) affects the powers and procedures of village courts.

(22) Notwithstanding Subsection 21(b) the powers and procedures of village

courts shall be exercised in accordance with the principles of natural justice.
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 21

Subdivision C – Qualified Rights

General
38. General qualifications on qualified rights.

(1) For the purpose of this Subdivision, a law that complies with the
requirements of this section is a law that is made and certified in accordance
with Subsection (2), and that –

(a) regulates or restricts the exercise of a right or freedom referred to in

this Subdivision to the extent that the regulation or
restriction is necessary –

(i) taking account of the National Goals and Directive Principles

and the Basic Social Obligations, for the purpose of
giving effect to the public interest in –

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability

(whether legal or practical); or

(G) the development of under-privileged or less advanced

groups or areas; or

(b) makes reasonable provision for cases where the exercise of one such
right may conflict with the exercise of another, to the extent that
the law reasonably justifiable in a democratic
society having a proper respect for the rights and
dignity of mankind.

(2) For the purposes of Subsection (1), a law must –

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under

Section 110 (certification as to making of laws) to
have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the
requirements of Subsection (1) is on the party relying on its validity.
In Supreme Court Reference No 2 of 1982 (No 1); Re the Organic Law on
National
Elections (Amendment) Act 1981 [I982] PNGLR 214, the issue before the court
was
whether an amendment to the 0rganic Law National Elections Act, which
required
a candidate for election to Parliament to validate a nomination with a K1,000
22 Chapter 1

deposit, was constitutional. It was argued, inter alia, that the law was not
"reasonably justifiable for the purpose in a democratic society". Kapi J (at 235-
236) considered the meaning of this phrase:

"It is extremely difficult to give any proper interpretation of the phrase.

The Constitution itself avoided any definition of it. The only assistance
the Constitution can offer is s 39(3) of the Constitution, which sets out
some of the materials to which the court may have regard in deciding
whether a law or thing is reasonably justifiable in a democratic society
... What is the standard of the reasonableness to be applied? The courts
in India have considered this question. The Constitution of India used
the words 'reasonable restrictions'. In the case of The State of Madras v
VG Row AIR (1952) SC196 at 200, Patanjali Sastri CJ said:

'It is important in this context to bear in mind the test of

reasonableness, wherever prescribed, should be applied to each
individual statute impugned and no abstract standard, or general
pattern, or reasonableness, can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion
of the imposition, the prevailing conditions at the time, should all
enter into the judicial verdict. In evaluating such elusive factors and
forming their own conception of what is reasonable in all
circumstances of a given case, it is inevitable that the social
philosophy and the scale of values of the judges participating in the
decisions should play an important part, and the limit to their
interference to the legislative judgment in such cases can only be
dictated by their sense of responsibility and self restraint and the
sobering reflection that the Constitution is meant not only for people
of their way of thinking but for all, and that the majority of the
elected representatives of the people have in authorization the
imposition of the restrictions considered by them to be reasonable.’

I would with respect adopt this. I note that this course has also been
suggested by Donald Chalmers 'Human Rights and What is Reasonably
Justifiable in a Democratic Society' (1975) MLJ. (Vol 3, No 1) at 92. I
find this approach is consistent with the approach given by the High
Court of Uganda in Uganda v Commissioner of Prisons; Ex Parte
Marobu (1966) EALR 514."11

On the onus of proof under this section, Kapi J (at 238-239) held that:

"It would be sufficient for the party who alleges that a law is
unconstitutional merely to prove that his right is infringed. He is only
required to show a prima facie case. Where this is shown, then the onus
is on the party who relies on the validity of the law to prove that it is
within the limitation provided by the Constitution ... The onus is on the
State to prove that the amendment Act is a law that is 'reasonably
justifiable for the purpose in a democratic society that has regard for the
rights and dignity of mankind'. In this regard, absolutely no materials
have been put up by the State or the Parliament for the imposition of
K1,000. I am left with the impression that the imposition of K1,000 has
no regard for the level of income by the citizens of this country."12
See also James Koimo v The State [1995] PNGLR 535 on the formulation of ad
hoc rules under the Constitution and the onus and standard of proof for violation
of constitutional rights by policemen.

11 Supreme Court Reference No 2 of 1982 [1982] PNGLR 214

12 Supreme Court Reference No 2 of 1982 [1982] PNGLR 214
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 23

39. "Reasonably justifiable in a democratic society", etc.

(1) The question, whether a law or act is reasonably justifiable in a

democratic society having a proper regard for the rights and dignity of mankind,
is to be determined in the light of the circumstances obtaining at the time when
the decision on the question is made.

(2) A law shall not be declared not to be reasonably justifiable in a society

having a proper regard for the rights and dignity of mankind except by the
Supreme Court or the National Court, or any other court prescribed for the
purpose by or under an Act of the Parliament, and unless the court is satisfied
that the law was never so justifiable such a declaration operates as a repeal of the
law as at the date of the declaration.

(3) For the purposes of determining 'whether or not any law, matter or things
is reasonably justified in a democratic society that has a proper regard for the
rights and dignity of mankind', a court may have regard to

(a) the provisions of this Constitution generally, and especially the

National Goals and Directive Principles and the Basic Social
Obligations; and

(b) the Charter of the United Nations; and

(c) the Universal Declaration of Human Rights and any other

declaration, recommendation or decision of the General
Assembly of the United Nations concerning human
rights and fundamental freedoms; and

(d) the European Convention for the Protection of Human Rights and
Fundamental Freedoms and the Protocols thereto, and any other
international conventions, agreements or declarations
concerning human rights and fundamental freedoms; and

(e) judgments, reports and opinions of the International Court of

Justice, the European Commission of Human Rights, the European
Court of Human Rights and other international courts and tribunals
dealing with human rights and fundamental freedoms; and

(f) previous laws, practices and judicial decisions and opinions in the
country; and

(g) laws, practices and judicial decisions and opinions in other

countries; and

(h) the Final Reports of the pre-Independence Constitutional Planning

Committee dated 13 August 1974 and presented to the pre-Independence
House of Assembly on 16 August 1974, as affected by decisions of
the House on the report and by decisions of the Constituent Assembly
on the draft of this Constitution; and

(i) declarations by the International Commission of Jurists and other

similar organizations; and
 (j) any other material that the court considers relevant.
See Chalmers, " Human Rights and What is Reasonably Justifiable in a Democratic Society" (1975) 2 MLJ 1
at 92-102.
24 Chapter 1

The "proper regard" which characterises such a society is to be found by an

examination of the Constitution. The other matters listed in s 39(3), however,
may also be regarded: Supreme Court Reference No2 of 1982, The Organic Law
[I982] PNGLR 214 at 230 (Kearney DCJ).

40. Validity of emergency laws.

Nothing in this Part invalidates an emergency law as defined in Part X

(emergency powers), but nevertheless so far as is consistent with their purposes
and terms all such laws shall be interpreted and applied so as not to affect or
derogate a right or freedom referred to in this Division to an extent that is more
than is reasonably necessary to deal with the emergency concerned and matters
arising out of it, but only so far as is reasonably justifiable in a democratic
society having a proper regard for the rights and dignity of mankind.

41. Proscribed acts.

(1) Notwithstanding anything to the contrary in any other provision of any

law, any act that is done under a valid law but in the particular case –

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of

the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably

justifiable in a democratic society having a proper
regard for the rights and dignity of mankind, is an unlawful
act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in
respect of an act is on the party alleging it, and may be discharged on the
balance of probabilities.

(3) Nothing in this section affects the operation of any other law under
which an act may be held to be unlawful or invalid.

Sections 36(1), 37(17) and 41(1) of the Constitution require that treatment in
prison shall not be harsh, oppressive, cruel or inhuman. If there is a prison law
which is harsh or oppressive, a prisoner can have the law declared
unconstitutional under these sections as an infringement of fundamental rights.
Similarly, if a particular treatment which a prisoner receives in prison is harsh or
oppressive then, even though it is not covered by a prison law, that treatment or
practice can be stopped as an infringement of fundamental rights: Tom Amaiu v
Commissioner of Corrective Institutions and the State [I983] PNGLR 87.

See Heni Pauta and Kenneth Susuve v Commissioner for Corrective Institutions
and his Servants and Agents [I982] PNGLR 7, annotated under s 57(3) below.

See ss 57-58 below, regarding remedies for breaches of fundamental rights.

Rights of All Persons

42. Liberty of the person

(1) No person shall be deprived of his personal liberty except –

(a) in consequence of his unfitness to plead to a criminal charge; or

Even if cautions were administered, unless they were gone over very carefully
and the accused were invited to say in their own words what they understood by
the
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 25

cautions, it would be a mumble of words to most I'apua New Guinean accused:

The State v Lakio Tambai (1980) N235.

See s 557 of the Criminal Code.

(b) in the execution of the sentence or order of a court in respect of an

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
another court or tribunal; or

See s 37(2) of the Constitution.

(c) by reason of his failure to comply with the order of a court made to
secure the fulfilment of an obligation [other than a contractual obligation)
imposed upon him by law; or

In Agua Bepi v Aiya Smion [I986] PNGLR 233, orders for imprisonment due to
the failure of the appellant's relatives to repay the bride price to her husband
were unconstitutional as they deprived the appellant of her liberty in order to
secure fulfilment of a contractual obligation in contravention of s 42(l)(c) of the
Constitution.

(d) upon reasonable suspicion of his having committed, or being about

to commit, an offence; or

Under s 42 there are exceptions where the liberty of a person may be deprived.
Where an accused is arrested upon reasonable suspicion of having committed an
offence, and is held in custody for trial, the accused has been held in accordance
with the exception set out under s 42(l)(d). Therefore, subsequent acquittal does
not entitle the accused to compensation under s 58, for there was no
unconstitutional infringement of a right or freedom: The State v Wic Kor [I983]
PNGLR 24.

(e) for the purpose of bringing him before a court in execution of the
order of a court; or

(f) for the purpose of preventing the introduction or spread of a disease

or suspected disease, whether of humans, animals or plants, or for
normal purposes of quarantine; or

(g) 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 those purposes; or

The Constitution makes distinction between the imposition of a sentence and

other forms of deprivation of liberty. Detention for the purposes of deportation
under s 14 of the Migration Act 1978 is not an imposition of penalty or
imprisonment which must be imposed by a body within the National Judicial
System: s 159(3)(a).
Section 159, therefore, has no application and a Minister's detention is lawful:
Virgil Dewitt Perryman and Victoria F Perryman v Minister for Foreign Affairs
and Trade [I9821 PNGLR 339.
26 Chapter 1

(h) in the case of a person who is, or is reasonably suspected of being of

unsound mind or addicted to drugs or alcohol, or a vagrant, for
the purposes of –

(i) his care or treatment or the protection of the community, under an

order of a court; or

(ii) taking prompt legal proceedings to obtain an order of a court of a

type referred to in subparagraph (i).

(i) in the case of a person who has not attained the age of 18 years, for
the purpose of his education or welfare under the order of a court or
with the consent of his guardian.

[Subs (1)(h) subst Constitutional Amendment No 11 – Liberty of the Person, subs (1)(1) insrt Constitutional
Amendment No 11 – Liberty of the Person.]

"The intention of this section is to allow imprisonment in an attempt to ensure

the fulfilment of obligations, the occasion for which might or might not arise at
some future time, and where fulfilment might occur in any event ... the words
'secure the fulfilment of an obligation' refer to an obligation where the occasion
for fulfilment has arisen and where fulfilment in relation to that occasion is still
possible, but has not yet occurred."13

"It is highly essential to emphasise the constitutional dictate contained in s 42(1)

- that a person's personal liberty is guaranteed and may not be taken away unless
one of the exceptions therein allows it. The exceptions enumerated under s 32(1)
all relate to total deprivation of a person's liberty as distinct from temporary
restriction of a person's freedom of movement. The word 'deprive' is defined in
the Shorter Oxford Dictionary as meaning 'to divest, bereave, to dispossess, to
take away, to remove' - ie in my view total denial or loss. So s -42(1) guarantees
the right not to be denied totally of ones personal liberty unless such denial or
loss is allowed by one of the exceptions."14

As to the remedies available for suppressing evidence obtained in violation of

these provisions, see John Alex v Martin Golu [1981] PNGLR 117, discussed
under s 57 of the Constitution below.

See Criminal Code, s 596; Local Courts Act 1963, s 19; and District Courts Act
1963, s 28.

(2) A person who is arrested or detained-

(a) shall be informed promptly, in a language that he understands, of

the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without

delay and in private with a member of his family or a personal friend, and
with a lawyer of his choice (including the Public Solicitor if he is
entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a

lawyer of his choice in the place in which he is detained,
13 Supreme Court Reference No 1 of 1981; Re Inter-Group Fighting Act 1977 [1981] PNGLR 151 (Kidu
CJ, Greville-Smith and Andrew JJ)
14 The State v Songke Mai and Gai Avi [1988] PNGLR 56 at 59 (Kidu CJ).
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 27

and shall be informed immediately on his arrest of his rights under this
subsection.
[Subs (2) am Constitutional Amendment No 11 - Liberty of the Person]

The section confers rights only on persons arrested or detained. It does not deal
with the situation in which a person not under restraint volunteers a statement to
a police officer. However, if on a trial the admissibility is raised of an admission
obtained in breach of s 42(2), the court, upon its own initiative or on the
application of the accused, has the power in the usual way or under s 57(3) to
determine the question whether a protective order is required to be made that the
admission be excluded: Constitutional Reference No 1 of 1977 [1977] PNGLR
362.

In The State v Konts Kot [I987] N623 King AJ stated that “[s]ection 42 is a
beneficial provision and should be construed liberally in favour of the citizen”.
In that case, the accused was brought to the police station the day before
interview and kept overnight in the cells. He was not advised of his
constitutional rights until the end of the interview. King AJ held that this was a
clear breach of s 42(2) and rejected the record of interview.

The accused carries the onus of showing a constitutional violation on the

balance of probabilities: The Sate v Kevin Evertius and Thomas Kindi [1985]
PNGLR 109 (Pratt J ).

In The State v Karara Peter (1983) N438(M) the accused made admissions and
then was formally cautioned. Kidu CJ held.

“The whole process makes a mockery of s 42 of the Constitution and the

Judges' Rules (become) meaningless and if I allow the record of interview
into evidence I would be condoning the flouting of these well-established
Rules and the guarantee of rights by the Constitution of Papua New
Guinea.”

A person charged, in addition to being told of the right to see a lawyer, should
be given a proper chance to decide whether to exercise this right and a real
opportunity to exercise it in practice. If such an opportunity is not extended the
confessional material may be regarded as unfairly obtained, depending on the
circumstances, and may be excluded: Maxwell Arthur Schliebs v H Singh [I981]
PNCLR 364, cited with approval by Brunton AJ in The State v John Koga Ivoro
(1989) N722.

Objection to a confession on the grounds that only some of the questions and
answers were recorded nor some of them asked does not go to the question of
voluntariness or admissibility. The admissibility of a confession is on the
balance of probabilities. Section 42(2) of the Constitution envisages that
something more practical and useful than a mere statement of rights may be
called for to give effect to the section. In The State v Joseph Maino [1977]
PNGLR 216 the record of interview was rejected on the lack of adequate
provision of constitutional rights and the failure to caution in the exercise of
discretion.

In the case of The State v Allan Woila [1978] PNGLR 99 Kearney J took the
view that the test for admissibility of a confession is proof beyond reasonable
doubt.
Section 42(2) of the Constitution confers rights but it does not make any
provision in relation to the consequences which follow if those rights were not
wholly or partly afforded to a person to whom the section applies. Section 23(3)
of the Constitution would permit the National Court to make an order where
there has been a breach of s 42(2). If it were shown that there had been a serious
or
28 Chapter 1

significant breach of the rights conferred by s 42(2), or if it were not shown that
those rights had been afforded and explained, then apart from any other order
the judge might make, the judge would-be entitled in the exercise of their
discretion to exclude a confession obtained after such breaches or until it is
shown that those rights were afforded and explained: The State v Kwambol
Embogol (1977) N91.

In The State v Paro Wampa [I987] PNGLR 120, Kapi DCJ held that there had
been a breach of s 42(2) where a person was not informed of his rights under s
42(2) until three weeks after he was detained when a record of interview was
about to be made, and at that point he was informed that he had the right to see a
relative or friend "now or later". Kapi DCJ set out principles to be followed in
the application of s 42(2):

1. A person is "arrested" when charged with an offence and taken into

custody.
2. A person is "detained" when taken into police custody in connection
with an offence but has not yet been charged with an offence.
3. A person loses "liberty" when either arrested or detained.
4. The need to inform persons arrested or detained of their rights under the
section arises at the point when they lose their liberty: it is not
related to the making of a record of interview.
5. The right to "communicate without delay" must be given at the same
time as the persons arrested or detained are informed of
their rights under the section.
6. The right of persons arrested or detained to "communicate" may be
exercised or waived but only at the time it is to be given: an
offer to so communicate at a later time misstates the nature of the
right.
7. It is the duty of the police to permit the persons arrested or detained who
exercises their right to communicate, to do so, "wherever
practicable".

The principle that police detention short of arrest is illegal should not be
confused with those cases where the record of interview is conducted at the
same time as the arrest is made, or more accurately a person writes or makes a
statement and as a result the police decide to make an arrest: The State v John
Koga Ivoro (1989) N772 (Brunton AJ).

Where at the time of the alleged offence the accused was an escapee from lawful
custody, it was the obligation of the police, upon his recapture, to have a record
of interview with him promptly about the alleged fresh offence. As such, a delay
of six weeks before a record of interview was taken in relation to the fresh
offence amounted to a breach of s 42(2). The fact that the accused was going to
be in custody in any case for two reasons; serving his original sentence and
serving a further sentence for escaping, did not abolish or even suspend
indefinitely his rights under s 42(2). Section 42(2) is a beneficial provision for
the protection of the individual and it must apply to a person already in custody.
Although this restriction does not emerge in plain terms from the words of s
42(2), the provision must have practical effect: "people are detained for
particular reasons, and I think the rights given under s 42(2) must relate to
particular detentions or arrests for particular reasons": The State v Peter Moripi
and Gaela Wagisa [I987] PNGLR 376 (King AJ).

"It is apparent ... that s 42(2) allows the police to detain a person
without arresting him if the police suspect that he has committed an
offence or is about to do so. The condition on this right to detain without
arrest is that an Act of Parliament (as in the cases of health, quarantine,
immigration, etc)
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 29

must provide for it. If such an Act is promulgated it would be sanctioned by s

42(l)(d) of the Constitution.

The view that exceptions to the right guaranteed by s 12(1) must be

implemented by Acts of Parliament finds support in the Constitution, s 52 and
the Constitutional Planning Report."15

"[A]n arrested person must be informed promptly of all the rights guaranteed by
s 42(2) but a detained person needs only to be informed of his right under s
42(2)(a). There is no obligation the part of the person who detains him to inform
him of his rights under s 42(2)(b) and (c) unless he makes the request. If he does
the person who detains him must allow him to exercise his rights under s 42(2)
(b) and (c). This is, of course, if a law allows detention short of arrest.” 16

"Any person deprived of his liberty in breach of s 14 [of the] Arrest Act is not
arrested - he is illegally detained and must be released.”17

"The point to be once again emphasised is that the right to communicate with a
lawyer etc must be exercised in a genuine way. There should not be any attempt,
veiled or otherwise, to prevent a person from exercising this right, subject to the
practicalities of a given situation . "18

"Section 42(1) simply sets out the circumstances under which a person may be
deprived of his liberty but the full extent of how this is done is to be found in
other laws. One has to go to the appropriate law to determine when a person's
liberty may be deprived. Support for this interpretation may be found in s 52 of
the Constitution. This section provides for the right to freedom of movement and
the exception reads 'except in consequence of a law that provides for deprivation
of personal liberty in accordance with s 42 (liberty of the person)'. The reference
here is to the exceptions set out under s 42(1) of the Co. This provision indicates
that the exceptions set out under s 42(1) are to be provided by law. Section 42(2)
is to be read together with s 42(1) of the Constitution. As an example, a person
may be deprived of his personal liberty if he is suspected of having committed
or been about to commit an offence: s 42(l)(d)."19

"It is clear from [the Arrest] Act that that 'arrest' is the initial step of depriving a
person of his liberty and 'detention' is the means by which his liberty is
continually deprived for a period. To put the matter differently, 'arrest' and
'detention' arc two distinct procedures under the law and deprivation of liberty,
which is common to both, commences upon 'arrest' and continues during
'detention'. The moment a person is 'arrested', he is 'detained' from that point on.
'Arrest' is very closely followed in point of time by 'detention'. That is the law
relating to 'arrest' and 'detention' in relation to persons who are suspected of
committing a crime. ... Can a person be detained without arrest? It has been
suggested that the police may detain a person as an alternative to arrest under s
42(3)(b) of the Constitution. ... I would reject this submission for the following
reasons. First, s 42(3) is not dealing with the law of arrest or detention, it is
concerned with those who are arrested or detained in accordance with the law 'to
be brought without delay before a court or a judicial officer', the police cannot
detain a person without arrest in accordance with the Arrest Act. Secondly, to
interpret the Constitution in this way is to grant the police a power of detention
without arrest which has not
15 The State v Songke Mai and Gai Avi [1988] PNGLR 56 at 61 (Kidu CJ). See Constitution, s 52.
16 The State v Songke Mai and Gai Avi [1988] PNGLR 56 at 65 (Kidu CJ).
17 The State v Songke Mai and Gai Avi [1988] PNGLR 56 at 66 (Kidu CJ).
18 The State v Songke Mai and Gai Avi [I988] PNGLR 56 at 67 (Kidu CJ).
19 The State v Songke Mai and Gai Avi [1988] PNGLR 56 at 68 (Kapi 13CI).
30 Chapter 1

been provided for under the Arrest Act. That interpretation is not consistent
with s 42(1)."20

"When a person is arrested or detained requests to see a lawyer under s 42(2)

(b) of the Constitution, it is not permissible for the police to follow up with a
question “Do you wish to see the lawyer now or after the record of
interview?"21

"I consider that there can be two broad situations of arrest. The first is the
technical arrest effected in the manner prescribed by s 14 of the Arrest Act.
It does not define the legal term 'arrest'. It can be suggested that when the
provisions of s 14 are complied with then, and only then, can someone be
under 'arrest' or 'arrested'. And therefore any other circumstance or condition
of physical restraint or deprivation of personal liberty will amount to
'unlawful arrest'. If the argument is extended that 'arrest' referred to in s
42(2) is the technical arrest effected in compliance with s 14 and none other,
then until that technical arrest is effected the officer holding the person is
not obliged to administer s 42(2) rights. Such a construction would be to
ignore the practical realities of the situations of 'arrest' lawful. This is the
broad second category of 'arrest', one might term 'de facto arrest'. In my
view the term 'arrest' as used in s 42(2) refers to the physical tact of a
deprivation of liberty in either situation ...

I do not think that the legislature would have intended that the term 'arrest'
should be strictly and narrowly construed to apply only to an arrest as
prescribed by the Arrest Act to the point of denying the person his s 42(2)
rights who is being deprived of his personal liberty, and who is for all
practical purposes under arrest, but not yet so formally informed under s 14
of the Act. Such an argument would mean that the s 42(2) rights of an
'arrested' person and the obligations of the person effecting the 'arrest' could
only be enforced after the technical formal arrest is effected under s 14. It
would seem odd ... that a person unlawfully imprisoned/arrested should be
worse off than if he had been lawfully arrested.”22

"The particular circumstances of an 'after hours' interview, will in all

likelihood, direct attention to the words 'whenever practicable' in s 42(2)(b).
Those words import a question of fact to be determined by the trial judge
having regard to the circumstances of the case at hand."23

The only potential limitation on the rights which s 42(2)(b) provides to persons
arrested or detained is to be found in the inclusion of the words "whenever
practicable". In case investigating officers and their corroborators even
contemplate seeking undue refuge in those words, I can think of no better
warning than that provided by the joint remarks of Mason J (as he then was) and
Brennan J in Williams v The Queen (1986) 161 CLR 278 at 400, as noted with
approval by Los J in The State v Songke Mai and Gai Avi [I988] PNGLR 56 at
89:

"Practicability is not assessed by reference to the exigencies of criminal

investigation; the right to personal liberty is not what is left over after the
police investigation is finished.”24

"If a person is arrested in 'office hours' and the interview is commenced 'after
hours' then it is difficult to see why that interview should not be suspended if the
person arrested wishes to speak with one of the class of persons
20 The State v Songke Mai and Gai Avi [1988] PNGLR 56 at 69-70 (Kapi DCJ).
21 The State v Songke Mai andGai Avi [1988] PNGLR 56 at 72 (Kapi DCJ).
22 The State v Songke Mai and Gai Avi [1988] PNGLR 56 at 76-77 (Amet J).
23 The State v Paro Wampa [1987] PNGLR 120 at 123.
24 The State v Anis [1990] PNGLR 239 at 247 (Ellis J).
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 31

contemplated by s 42(2)(b). To merely ask what is practicable at that 'after

hours' time limits the accused person's constitutional rights: consideration
should also be given to what was practicable at the time of arrest when the
opportunity to communicate should have been given. Any attempt to delay
or defer informing an accused person of his constitutional rights so as to
limit his opportunities to exercise them cannot be condoned."25

See Arrest Act and s 57 of the Constitution.

(3) A person who is arrested or detained-

(a) for the purpose of being brought before a court in the execution
of an order of a court; or

(b) upon reasonable suspicion of his having committed, or being

about to commit, an offence,

shall unless he is released, be brought without delay before a court or a judicial

officer and, in a case referred to in paragraph (b), shall not be further held in
custody in connection with the offence except by order of a court or judicial
officer.

See Arrest Act; Evidence Act, s 28; and Constitution, s 57.

In The State v Mana Turi [1986] PNGLR 221, it was held that both s 37(1) and s
42 of the Constitution form the basis of any consideration of police impropriety
with persons detained. In this case, McDermott AJ considered that the accused's
detention for five days, the giving of two full confessional statements by the
accused, his continued detention without charge or judicial remand and his
subsequent subjection to a full question and answer record of interview,
amounted to impropriety.

(4) The necessity or desirability of interrogating the person concerned or

other persons, or any administrative requirement or convenience, is not a good
ground for failing to comply with Subsection (3), but exigencies of travel which
in the circumstances are reasonable may, without derogating any other
protection available to the person concerned, be such a ground.

See s 28 of the Evidence Act.

(5) Where complaint is made to the National Court or a Judge that a person
is unlawfully or unreasonably detained –

(a) the National Court or a Judge shall inquire into the complaint
and order the person concerned to be brought before it or
him; and

(b) unless the Court or Judge is 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 its
length, the Court or a Judge shall order his release either
unconditionally or subject to such conditions as the Court
or Judge thinks fit.
This paragraph only applies to persons arrested and detained and has, therefore,
no application to persons to be deported: Virgil Dewitt Perryman and Victoria F
Perryman v Minister for Foreign Affairs and Trade [I982] PNGLR 339.

If an unreasonable delay in the proceedings has occurred, amounting to a denial

of the right of the accused to a fair trial under s 37(2) of the Constitution, the
court

25 The State v Anis [1990] PNGLR 239 at 248-249 (Ellis J).

32 Chapter 1

should exercise its power under s 42(5) on condition that the accused person/s
attend court when requested: The State v Peter Kakam Borarae [1984] PNGLR
99 (Woods J). This was despite the fact that the accused persons in that case had
been charged with wilful murder.

See Re Ricky Yanepa [1988-1989] PNGLR 166 for an example of the court
exercising jurisdiction under this section and ordering release of person held in
custody for 17 months after committal without any further proceeding being
taken.

See also Re Yamson Vamble and Section 42(5) of the Constitution (1989) N743.
The court ordered the release of a person held in custody for eight months who
was charged with unlawful carnal knowledge, where the committal papers were
lost and a substantial defence to the charge was raised.

In Re Kopa Kaipia (1989) N709(M), the court declared that the imprisonment of
a person for failing to obey a Village Court Order to pay compensation was
unlawful. Section 31 of the Village Courts Act must be read subject to the
Constitution, and as such, failure to pay a civil debt or obligation does not
permit a person to be deprived of their liberty as allowed by s 42 of the
Constitution.

(6) A person arrested or detained for an offence (other than treason or

willful murder as defined by a Act of the Parliament) is entitled to bail at all
times from arrest or detention to acquittal or conviction unless the interests of
justice otherwise require.

"[T]he terms 'arrested' and 'detained' (or 'arrest' and 'detain') in s 42(2), (3), (5)
and (6) mean total deprivation of personal liberty - they are two different forms
of deprivation of personal liberty. And the deprivation must be legal. There
cannot be any legal deprivation of personal liberty outside s 42(1)."26

See Re Bail Act 1977; Application by Herman Kagl Diawo [I980] PNGLR 148
discussed
under s 9 of the Bail Act.

(7) Where a person to whom Subsection (6) applies is refused bail –

(a) the court or person refusing bail shall, on request by the person
concerned or his representative, state in writing the
reason for the refusal; and

(b) the person or his representative may apply to the Supreme Court or
the National Court in a summary manner for his release.

See the Bail Act annotated in Ch 4 below.

(8) Subject to any other law, nothing in this section applies in respect of any
reasonable act of the parent or guardian of a child, or a person into whose care a
child has been committed, in the course of the education, discipline or
upbringing of the child.
 (9) Subject to any Constitutional Law or Act of the Parliament, nothing in
this section applies in respect of a person who is in custody under the law of
another country –

(a) while in transit through the country; or

(b) as permitted by or under the Act of the Parliament made for the
purposes of Section 206 (visiting forces).
26 The State v Songke Mai and Gai .4vi [I988] PNGLR 56 at 60-61 (Kidu CI).
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 33

44. Freedom from arbitrary search and entry.

(1) No person shall be subjected to the search of his person or property or to

entry of his premises, except to the extent that the exercise of that right is
regulated or restricted by a law –

(a) that makes reasonable provision for a search or entry –

(i) under an order made by a court; or

(ii) 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; or

(iii) 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 necessary, on the premises of a person in order to inspect those
premises or anything 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; or

(iv) 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 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; or

(v) for the purse of inspecting or taking copies of documents

relating to –

(A) the conduct of a business, trade, profession or industry in

accordance with regulating the conduct of that
business, trade, profession or
industry; or

(B) the affairs of a company in accordance with a law relating

to companies; or

(vi) for the purpose of inspecting goods or inspecting or taking

copies of documents, in connection with the collection, or
the enforcement of payment of taxes or under a law
prohibiting or restricting the importation of goods
into Papua New Guinea or the exportation of, goods from Papua New
Guinea; or

(b) that complies with Section 38 (general qualifications on qualified

rights).
The police have no right to enter into a house and seize property. This is the very
reason for the right under this section. They can only enter a house under the
exceptions provided for under this section, and the Search Act 1977
investigations may proceed properly and effectively within the exceptions
provided: John Alex v Martin Golu [1983] PNGLR 117.

A remedy for seizure of evidence in contravention of the rights guaranteed under

this section may be granted under the general common law discretion to reject
34 Chapter 1

evidence obtained illegally, or under a separate and independent power

conveyed by s 57 of the Constitution. As to the former, see s 28 of the Evidence
Act and cases relating to general evidentiary matters in Ch 6. As to the latter, see
John Alex v Martin Golu [I983] PNGLR 117, discussed under s 57 of the
Constitution. See Search Act provisions.

49. Right to privacy.

Every person has the right to reasonable privacy in respect of his private
and family life, his communications with other persons and his personal
papers and effects, except to the extent that the exercise of that right is
regulated or restricted by a law that complies with Section 38 (general
qualifications on qualified rights).

See Search Act provisions.

55. Equality of citizens.

(1) Subject to this Constitution, all citizens have the same rights,
privileges, obligations and duties irrespective of race, tribe, place of origin,
political opinion, colour, creed, religion or sex.

(2) Subsection (1) does not prevent the making of laws for the special
benefit, welfare, protection or advancement of females, children and young
persons, members of under-privileged or less advanced groups or residents of
less advanced areas.

(3) Subsection (1) does not affect the operation of a pre-Independence

law.

See Johnson, "Equal Rights for Women in PNG: Fact or Fiction", in Weisbrot,
Paliwala and Sawyerr (eds), Law and Social Change in Papua New Guinea
(1982), p 149.

Where the police exercise discretion and charge one accused with summary
offences, the law should not be used to give different treatment by charging
another accused with indictable offences on the same set of facts. Moreover,
punishments on one convicted accused should reflect punishment imposed on
the other: The State v Yombe Gende (1980) N247.

Subdivision D – Enforcement
57. Enforcement of guaranteed rights and freedoms.

(1) A right or freedom referred to in this Division shall be protected by,

and is enforceable in, the Supreme Court or the National Court or any other
court prescribed for the purpose by an Act of the Parliament, either on its
own initiative or on application by any person who has an interest in its
protection and enforcement, or in the case of a person who is, in the opinion of
the court, unable fully and freely to exercise his rights under this section by a
person acting on his behalf, whether or not by his authority.
By force and effect of s 5 7(1) of the Constitution, the National Court may on its
own initiative protect and enforce the rights or freedoms of persons whose
liberties have been denied them, by, for example, ordering compensation for
wrongful imprisonment: Rebecca v Amb v Mary Rabi (1980) N279 (Narokobi
AJ).

An incorporated association, for example ICRAF (Individual Rights Advocacy

Forum Inc), whose charter provides for its purposes to assist in the
advancement, protection and enforcement of human rights, has standing under
this section: Re Miriam Willingal (1997) N1506.
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 35

(2) For the purposes of this section-

(a) the Law Officers of Papua New Guinea; and

(b) any other persons prescribed for the purpose by an Act of the
Parliament; and

(c) any other persons with an interest (whether personal or not) in the
maintenance of the principles commonly known as the Rule
of Law such that, in the opinion of the court concerned, they
ought to be allowed to appear and be heard on the matter
in question, have an interest in the protection and enforcement of the
rights and freedoms referred to in this Division, but this subsection
does not limit the persons or classes of persons who have such
an interest.

(3) A court that has jurisdiction under Subsection (1) may make all such
orders and declarations as are necessary or appropriate for the purposes of
this section, and may make an order or declaration in relation to a statute at
any time after it is made (whether or not it is in force).

(4) Any court, tribunal or authority may, on its own initiative or at the
request of a person referred to in Subsection (I), adjourn, or otherwise delay
a decision in, any proceedings before it in order to allow a question concerning
the effect or application of this Division to be determined in accordance
with Subsection (1).

(5) Relief under this section is not limited to cases of actual or imminent
infringement of the guaranteed rights and freedoms, but may, if the court thinks
it proper to do so, be given in cases in which there is a reasonable
probability of infringement, or in which an action that a person
reasonably desires to take is inhibited by the likelihood of, or a reasonable
fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in
addition to, and not in derogation of, their jurisdiction and powers under any
other provision of this Constitution.

Sections 23 and 57 of the Constitution appear to overlap. However, it emerges

plainly from them that both the Supreme and National Courts are given wide
discretionary powers to deal with a situation in which a right guaranteed under
the provisions of Pt Ill, Div 3 of the Constitution has been denied. Amongst
other things, compensation may be ordered, a traditional way in Papua New
Guinea of redressing wrongs: Constitutional Reference No 1 of 1977 [I977]
PNGLR 362.

Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme

Court as to any question relating to the interpretation or application of any
constitutional law. That section is expressed to be subject to the Constitution,
however, and under ss 57(1) and (3) and 22 it was envisaged that an order
seeking enforcement of an accused's constitutional right fell within the
jurisdiction of both the National and Supreme Courts. It is not possible for the
National Court to exercise its jurisdiction under s 57(1) and (3) to make an order
which is necessary for the protection of a constitutional right or freedom unless
that court both interprets and applies the relevant constitutional provision: The
State v Peter Painke (No2) [I977] PNGLR 141.

See Chalmers, "Human Rights and What is Reasonably Justifiable a Democratic

Society" (1975) 2 MLJ 1 at 92-102.

Having regard to the views expressed in Reference No 7 o f 1977 [1977]

PNGLR 362, it is concluded that:
36 Chapter 1

• a remedy under s 57 (for exclusion of evidence obtained in contravention

of rights guaranteed under s 44 of the Constitution regarding freedom
from arbitrary search and entry) is quite separate and independent from
the common law discretion to reject evidence which is obtained illegally.

• the power given under s 57 is discretionary and may be exercised in

appropriate cases;

• the power given under s 57 is wide enough to extend to prohibiting of

evidence which may be obtained in breach of a fundamental right or
freedom;

• the power given under this provision extends further than the discretion to
reject evidence on the trial; and

• orders can be made at any time after breach of a fundamental right. 27

On the role of the Constitution in protecting the fundamental rights of prisoners

to be treated in a way which is not cruel, inhuman, harsh or oppressive, and
which reflects the inherent dignity of the human person, see Tom Amaiu v
Commissioner of Corrective Services and the State [1983] PNGLR 87
(discussed under ss 36(1), 37(1), 37(17) and 41(1)).

Under the Constitution, courts other than the National and Supreme Court have
no power to make orders under this section. This means that in a trial in a
Magistrate’s Court where issues under this section arise, such a court must
adjourn its hearing and allow the defendant to make the appropriate application
to either the National or Supreme Court. Such a course may disrupt the trial and
cause delays. The Parliament should therefore seriously consider the possibility
of allowing some of the lower courts to make orders under this section. In some
provinces it is difficult to have access to the superior courts and it would be
difficult to dispose of trials where the defendant has to make an application to
the National or the Supreme Court: John Alex v Martin Golu [1983] PNGLR
117 (Kapi DCJ).

See also Supreme Court Reference No 1 of 1982 [1982] PNGLR 178 on the
application of this section to breaches of 22 36(1) and 7(17), (18) and (19) of the
Constitution.

The common law discretion to reject evidence which was obtained in

contravention of s 44 is a separate remedy from s 57. This Section, therefore,
extends further than a power to reject evidence at the trial. Consequently, orders
under this section can be made at any time after the breach of the fundamental
right: John Alex v Martin Golu [1983] PNGLR 117.

The Supreme Court ordered the National Court to proceed with a trial forthwith,
in order to protect an accused’s right under s 37(3) to a fair hearing within a
reasonable time: Supreme Court Reference No 3 of 1979; the State v John
Rumet Kaputin [1979] PNGLR 532 at 535.

58. Compensation.

(1) This section is in addition to, and not in derogation of, Section 57
(enforcement of guaranteed rights and freedoms).
27 John Alex v Martin Golu [1983] PNGLR 117
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 37

(2) A person whose rights or freedoms declared or protected by this

Division are infringed (including any infringement caused by a derogation of
the restrictions specified in Part X, 5 (internment) on the use of
emergency powers in relation to internment is entitled to reasonable damages
and, if the court thinks it proper, exemplary damages in respect of the
infringement.

(3) Subject to Subsections (4) and (5), damages may be awarded against
any person who committed, or was responsible for, the infringement.

(4) Where the infringement was committed by a governmental body,

damages may be awarded either –

(a) subject to Subsection (5), against a person referred to in

Subsection (3); or

(b) against the governmental body to which any such person was
responsible, or against both, in which last case the
court may apportion the damages
between them.

(5) Damages shall not be awarded against a person who was responsible
to a governmental body in respect of the action giving rise to the infringement
if –

(a) the action was an action made unlawful only by Section 41(1)
(proscribed acts); and

(b) the action taken was genuinely believed by that person to be

required by law, but the burden of proof of the
belief referred to in paragraph (b) is on the
party alleging it.

Entitlement to compensation is based on infringement of a right or a freedom

under s 42 of the Constitution. There are exceptions where the liberty of a
person may be deprived (in this case s 42(l)(d)) which states that "upon
reasonable suspicion" of the person having committed an offence, the person has
no right to compensation under s 58: The State v Wic Kor [I983] PNGLR 24.

In Heni Pauta and Kenneth Susuve v Commissioner for Corrective Institutions

and his Servants and Agents [I982] PNGLK 7, orders were made by Kidu CJ
restraining the Commissioner of Corrective Institutions and his servants and
agents from inflicting any cruel or inhuman treatment on detainees (see ss 36(1)
and 37(17)) and transferring a juvenile detainee from "B" to "C" Division of
Bomana gaol: s 37(19).

On the role of the Constitution in protecting the fundamental rights of prisoners

to be treated in a way which is not cruel, inhuman, harsh or oppressive, and
which reflects the inherent dignity of the human person, see Torn Amaiu v
Commissioner of Corrective Services and the State [1983] PNGLR 87, discussed
under ss 36(1), 37(1), 37(17) and 41(1).

Section 58 permits the award of exemplary damages. They are appropriate

where there has been deliberate or flagrant misconduct by officials: Tom Amaiu
v Commissioner of Corrective Institutions and the State [I983] PNGLR 87. See
also Heni Pauta and Kenneth Susuve v Commissioner for Corrective Institutions
and his Servants and Agents [I982] PNGLR 7.

Under s 42 there are exceptions where the liberty of a person may be deprived.
Where an accused is arrested upon reasonable suspicion of having committed an
offence and is held in custody for trial, he or she has been held in accordance
with the exception set out under s 42( l)(d). Therefore, subsequent acquittal does
not entitle the accused to compensation under s 58, for there war no
unconstitutional infringement of a right or freedom: The State; Wit Kor [1983]
PNGLR 24.
38 Chapter 1

Division 4 - Principles of Natural Justice

59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural
justice are the rules of the underlying law known by that name developed
for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly
and, in principle, to be seen to act fairly.

The principles of natural justice are fundamentally of common law origins.

Their consistency with the requirements of Sch 2 is therefore paramount. Kapi J
has noted that:

"In discovering and applying the common law to the circumstances of

this country regard should be given Sch 2.2 of the Constitution. The
court should only consider English cases as Sch 2.2 of the Constitution
is only concerned with the common law of England. If there are cases
from other common law countries such as Australia or Canada every
precaution must be taken in referring to the decisions from these
jurisdictions because the courts there might give their own interpretation
or application of the common law principles. If the cases from other
common law countries differ from the English cases then no regard
should be given to them unless this Court has found itself in a situation
where the common law of England is either inconsistent or is
inappropriate or contrary to the Constitution or any statute or the
customs of the people, then the court shall have regard to these cases in
formulating its own underlying law under Sch 2.3 of the Constitution.”28

In Okuk v Fallscheer [1980] PNGLR 274, Kapi J (at 284), emphasised that "the
House of Lords has established that a person who is occupying an office or
status cannot be dismissed without complying with the principles of natural
justice”. This adopted Lord Wilberforce in Ridge v Baldwin [I964] AC 40, who
said that "if there are relationships in which all requirements or rules of natural
justice are excluded ... these must be confined to what have been called pure
master and servant cases."29

Okuk v Fallscheer also approved the holding in Duravappah v Fernado [1967] 2

AC 337; [I967] 2 AII ER 152. Kapi J stated the following:

"In their Lordships' opinion there are three matters which must always
be borne in mind when considering whether the principle should be
applied or not: first what is the nature of the property, the office held,
status enjoyed or services to be performed by the complainant of
injustice. Secondly, in what circumstances or on what occasions is the
person claiming to be entitled to exercise the measure or control entitled
to intervene. Thirdly, when a right to intervene is proved, what sanctions
in fact is the latter entitled to impose on the other. It is only on a
consideration of all these matters that the question of the application of
the principle can properly be determined."

How appropriate are the common law principles of natural justice to the
administrative law specifically designed for Papua New Guinea, and how
consistent are they with the provisions of Sch 2 of the Constitution? Kapi J
addressed these issues when he observed:
 THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA 39

"I am not aware of any constitutional law or statute which is inconsistent

with these principles and there are no customs which may be said to be
inconsistent with these principles."30

On an appeal against a refusal of a writ of certiorari absolute to quash a decision

of the Police Appeal Tribunal for failing to give reasons for a disciplinary
decision, Bredmeyer J, with whom both Greville-Smith and Kapi JJ agreed, held
that the tribunal must observe the standards of natural justice under this section
as there is nothing in the Police Force (Interim Arrangements) Act 1973 to
exclude the principle: Lawrence Allen Sausau v The Police Commissioner and
The State [1981] PNGLR 327.

60. Development of principles.

In the development of the rules of the underlying law in accordance with

Sch 21 (adoption, etc, of certain laws) particular attention shall be given to the
development of a system of principles of natural justice and of
administrative law specifically designed for Papua New Guinea, taking
special account of the National Goals and Directive Principles and of the
Basic Social Obligations, and also of typically Papua New Guinean procedures
and forms of organization.

Section 60 of the Constitution imposes a duty to develop a system of principles

of natural justice which, by s 59, includes the duty to act fairly (and to be seen to
act fairly). The test of bias is whether in all the circumstances a party or the
public might reasonably suspect that the magistrate might not decide the
questions before him or her with a fair and unprejudiced mind: R v Watson; Ex
parte Armstrong (1976) 136 CLR 248; and Holmes v Neilson [I979] Tas R 89.
In the circumstances where the complainant worked for the magistrate as a clerk,
bias was not found where the defendant admitted the claim and the magistrate
had acknowledged that he would step down if it was not admitted: Balus Tara v
Rachel Gugu (1982) N374(M) (Bredmeyer J).

On the issue of whether the Police Appeal Tribunal ought to give reasons for its
decision, Bredmeyer J observed that nothing in the relevant Act required reasons
to be given. Padfield v Minister for Agriculture [I968] 1 All ER 694 held that
the Minister was not required to give reasons. Mandamus will lie against him,
whether he gave reasons or not, if it appears that his decision was designed to
frustrate the policy and objects of the Act. If he does not give any reasons why
he rejects what appears to be a genuine complaint, the court may infer that he
had no good reason for his decision and order mandamus against him.
Nevertheless, the cases of R v Gaming Board; Ex parte, Benaim [I970] 2 QB
417 and 'Taylor v Public Service' Board [I975] 2 NSWLR 278 led to the
conclusion that it is not part of the English common law that administrative
tribunals in general, or that disciplinary tribunals in particular, should give
reasons. Whether it is part of natural justice that administrative tribunals should
give reasons is a new area of law. In England, s 12 of the Tribunal and Inquiries
Act 1958 (UK) required certain tribunals (and Ministers) to give reasons for their
decisions, and that provision is not contained in s 12 of the Tribunals and
Inquiries Act 1971. The latter section requires the tribunal or Minister to furnish
a statement, either written or oral, of the reasons for decision, if requested, on or
before the giving or notification of the decision. I agree with the learned Deputy
Chief Justice that the common law principles of natural justice adopted into this
country do not require reasons to be given by a
30 Okuk v Fallscheer [1980] PNGLR 274 at 285
40 Chapter 1

tribunal such as the Police Appeal Tribunal: Lawrence Sausau v The

Commissioner for Police and The State [I981] PNGLR 327 at 330. However,
see Kelly Yawip v Commissioner of Police [I995] PNGLR 93, where Injia J held
that a Commissioner of Police must give reasons for a decision to dismiss a
policeman on disciplinary grounds.

On an appeal from a magistrate's decision the issue of the likelihood of bias was
raised. Bredmeyer J held that:

"the judge or magistrate must be free of bias. The test is whether in all the
circumstances a party or the public might reasonably suspect that the magistrate
might not decide the questions before him with a fair and unprejudiced mind The
Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262."31

Subdivision D – The Power of Mercy

151. Grant of pardon, etc.

(1) Subject to this Subdivision, the Head of The State, acting with, and in
accordance with, the advice of the National Executive Council, may grant to
a person convicted of an offence or held in penal detention under a law
of Papua New Guinea –

(a) a pardon, either free or conditional; or

(b) a remission or commutation of sentence; or

(c) a respite of the execution of sentence; or

(d) a less severe form of punishment for that imposed by any

sentence, and may remit or refund, in whole or in
part, any fine, penalty or forfeiture paid or
payable to a governmental body.

(2) Where an offence has been committed, the Head of The State, acting
with, and in accordance with, the advice of the National Executive Council,
may grant a pardon, either free or conditional, to an accomplice who gives
evidence that leads to the conviction of a principal offender.

See s 19 of the Criminal Code on punishment, and s 615 of the Criminal Code
regarding release on licence.

152. Advisory Committee on the Power of Mercy.

(1) An Organic Law shall make provision for and in respect of an

Advisory Committee on the Power of Mercy, and for and in respect of its
appointment, constitution, powers and procedures.

(2) Before giving any advice to the Head of State under section 151(1)
(grant of pardon, etc), the National Executive council shall consider a report
from the Advisory Committee.
31 Balus Tara v Rachel Gugu (1982) N374 at 3