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PNG Constitutional Planning Committee Report 1974

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Constitutional Planning Committee Report 1974

            B.  DECLARATION OF FUNDAMENTAL OBLIGATIONS

 

 16.       Every person in Papua New Guinea has the following fundamental obligations -

 

   (1)        to respect and act in the spirit of the Constitution;

 

            (2)        to recognise that he can fully develop his capabilities and advance his true interests only by active participation in the development of Papua New Guinean society as a whole;

 

            (3)        to exercise the rights safeguarded by the Constitution and use the opportunities made available to him under it to participate fully in the government of the nation;

 

            (4)        to protect the State, safeguard its wealth, its resources and the environment in the interests of future generations;

 

            (5)        to work according to his talents in useful employment, creating for himself opportunities for such labour where none may seem immediately available;

 

            (6)        to respect the rights and freedoms of others and to co-operate fully with them in the interests of interdependence and solidarity;

 

            (7)        to contribute in proportion to his means to the revenues required for the advancement of all citizens;

 

            (8)        parents are obliged to support, assist, educate and teach their children and the children have the responsibility to respect and assist their parents.  Parents have the same obligations towards their children born out of wedlock as towards children born in wedlock.

 

C.  GENERAL

 

Enforcement of rights and freedoms

 

17.                   (1)        A right or freedom specified in this Part shall be protected and is enforceable in the Supreme Court, the National Court or a District (Provincial) Court or application by any person having an interest in the enforcement of that right or freedom, or where any such person is, in the opinion of any of the courts referred to in this clause, unable fully and freely to exercise his right under this section by a person acting on his behalf, whether or not by his authority.

 

            (2)        For the purposes of proceedings under this recommendation -

 

            (a)        the most senior legal adviser to the National Executive Council and the Public Solicitor or, if either of those offices is unoccupied, the person holding the most closely analogous position or performing the most closely analogous functions; and

 

            (b)        any other person with a public or private interest (whether personal or not) in the maintenance of the rule of law such that in the opinion of the court concerned he ought to be allowed locus standi,

             shall be deemed to have an interest in the protection and enforcement of all the rights and freedoms specified in this Part.

 

(3)        The Supreme Court, the National Court or a District (Provincial) Court may make all such orders and declarations as are necessary or appropriate for the purposes of clause (1) above, and have power to make such an order or declaration in relation to an Act after the Act has been passed, but before it is assented to.

 

(4)        Where in accordance with this recommendation a case is to be heard in the Supreme Court a single judge of the National Court may, where he considers it desirable to do so in the interests of justice, make a temporary order or declaration of a kind referred to in clause (3) above, pending decision of the Supreme Court.

 

Suspension of or derogation from Human Rights in interests of defence etc.

 

18.       Where any recommendation concerning a human right in this chapter contains a provision to the effect that a law which derogates from any fundamental right guaranteed by this chapter shall not be invalid by reason of such derogation if it is reasonably justifiable in a democratic society in the interests of defence, public safety, public order, public health or public welfare or for the purpose of protecting the rights and freedoms of other persons, that provision shall only apply to an Act if -

 

            (a)        the Act provides that it is not to have effect except during a State of Emergency;  or

 

            (b)        the Bill for the Act is supported on its final reading in the National Parliament by the vote of at least three-fifths of the total membership of the Parliament.

 

Action under valid law invalid if excessive or oppressive

 

19.       Notwithstanding the validity under the provisions of this chapter of a law under which any person is arrested, detained, questioned or searched, or his property entered upon or searched, action taken under that law for any of these purposes shall be unlawful insofar as the force used or the conduct of the persons taking the action is excessive or oppressive in the actual circumstances of the case.

 

Parliamentary supervision of compliance with Human Rights and Obligations and with the National Goals and Directive Principles

 

20.       The Permanent Committee of the National Parliament responsible for justice or a sub-committee of that committee should be charged with the responsibility for Human Rights and Obligations and compliance of laws and policies with the National Goals and Directive Principles.  That committee should examine bills and regulations with a view to determining whether or not they conform to the relevant provisions of the Constitution in Chapter 2 and proposed on this chapter of our Report, and make recommendations or move amendments for the alteration of bills and the disallowance of regulations where these are in conflict with either any provision in this chapter or any provision of the National Goals and Directive Principles set out in Chapter 2.

 

Effect of Fundamental Obligations

 

21.       The Fundamental Obligations set out in Part B of this chapter shall be given the same force and effect as is recommended in respect of the National Goals and Directive Principles included in Chapter 2.

 

            Note   Recommendation 3 in Chapter 2 spells out the force and effect to be given to the National Goals and Directive Principles.

 

Implementation of human rights provisions

 

22.       The proposed provisions of the Constitution put forward in this chapter should come into force on the day on which the Constitution comes into operation.  Any then existing legislation which is inconsistent with these provisions would be invalid to the extent of the inconsistency.

 

TRANSITIONAL PROVISION

 

Amendments to legislation and changes to policy concerning Human Rights and Obligations, National Goals and Directive Principles

 

23.       The proposed Law Reform Commission (referred to in Chapter 8, "The Administration of Justice") or a special committee comprising Papua New Guinean public servants, and perhaps politicians also, with appropriate skilled staff and, if needed, outside consultants, should give careful consideration to all current legislation and government policies with a view to making recommendations, over a period of approximately two years, for the repeal and amendment of legislation which is contrary to the National Goals and Directive Principles, or to the proposed constitutional provisions concerning Human Rights and Obligations.  This body should also recommend changes in policies of the government, including the institutions of government, in order to achieve conformity with the National Goals and Directive Principles.

 

PART 2 - EMERGENCY POWERS

 

Emergency Situations

 

1.         In every country there are times of great national crisis or emergency due to war, very serious civil disturbances such as organized attacks on many government officers, or natural disaster, such as a famine, an earthquake or a fire.  The first and third of these situations are all too familiar to many of us, who remember the Pacific War and natural disasters such as the Mount Lamington eruption in 1951 and the Highlands' famine in 1972.

 

2.         Fortunately, in recent years, there has been no state of civil disorder which has been so serious as to require a declaration of a State of Emergency.

 

3.         We recognize that in preparing the Constitution we must face the reality that very difficult civil disorder situations may possibly arise in the long term future, and that proper provision should be made in the Constitution to enable the Government to cope with them.

 

4.         We have given very careful thought to the question of what powers should be exercised y the executive government in public emergency situations, as we fully appreciate the need to ensure that, on the one hand, the executive is able to cope with crisis situations promptly and effectively, whilst on the other hand, the rights of individuals should not be disregarded.  Too often, in other countries, the wide powers which governments are able to exercise in public emergency situations are used arbitrarily, without regard to the fundamental rights and freedoms of the people.  Sometimes too, governments use such powers to undermine opposition parties and their leaders without justification.

 

Underlying Principles

 

5.         In the proposals which follow, we have adopted a number of important principles, namely that -

 

            1.         The introduction and continuation of emergency powers should be subject to effective and regular parliamentary control.

 

            2.         Emergency powers legislation should be treated in the context of the human rights provisions of the Constitution.

 

               3.         The emergency powers authorized by law should involve limiting the normal legal protection of the rights and freedoms of citizens only to the extent that is strictly necessary to deal with the particular circumstances of a given emergency.

 

            4.         Such powers should not, except in extraordinary circumstances which are recognized as such by the great majority of members of parliament voting in favour of a suspension of the relevant protective provisions of the Constitution concerning personal liberty, and protection of law, include the power to detain a person without trial.

 

            5.         A heavy onus rests on the Government of the day to clearly establish that the conditions in fact exist which make necessary the authorisation, continuation or use of any particular power.

 

            6.         Effective safeguards against abuse and over use of emergency powers should be provided in respect both of the introduction of each individual power and of its exercise.

 

            7.         Any legislative limitation of the ordinary right of the individual to protection of his personal liberty should be balanced by the provision of special procedures to ensure that persons are not deprived of their liberty without sufficient cause, that they are not held for an unreasonably long period without being tried, and that compensation is given to those who are improperly detained.

 

            8.         As far as possible, emergency powers and procedures in relation to detention without trial should be seen to be distinguished from ordinary powers and procedures.  In particular it is generally preferable that members of the judiciary be not asked to undertake tasks the performance of which may ell jeopardise public confidence in the impartiality and fairness of the ordinary institutions of justice.

 

            9.         Emergency legislation should apply only to emergency situations, and statutory instruments made under that legislation should apply only to a particular State of Emergency, and cease to have effect when that State of Emergency ends.

 

            10.       Actions taken under emergency legislation should be subject to scrutiny not only in relation to the statutory powers under which they may be authorised, but in respect of the actual situation in the context of which they are taken.

 

Parliamentary Supervision of Declarations of Emergency

 

6.         We believe that it is essential that Parliament have a central role in ensuring that the country, or part of the country, is under a State of Emergency only where the circumstances are so serious as to justify this.  We recommend that to enable parliament to carry out this role effectively, the National Executive Council should be required, when it makes a Declaration of a State of Emergency, to clearly state its reasons for so doing.  It should explain to the National Parliament and the nation the circumstances which have led to the decision to declare a State of Emergency.  This statement should be sufficiently specific to enable the parliament to debate it meaningfully.

 

7.         A proclamation of a declared State of Emergency should take effect when it is published in the Government Gazette, but it should remain in force for only a very short period unless parliament approves an extension of the State of Emergency.

 

8.         We have recommended that if parliament is sitting at the time of the proclamation, or is about to meet, the State of Emergency should automatically cease after eight days unless parliament, by a resolution carried by an absolute majority of the members, approves an extension for a period of not more than two months.

 

9.         If parliament is not sitting or scheduled to sit within seven days of the proclamation, the declaration of Emergency should last for fifteen days instead of eight, but parliament should be called together as soon as practicable, (in any case not more than fourteen days after the proclamation has been made), in order that members may debate the declaration of emergency, and decide whether or not there is sufficient justification for its being extended.

 

10.       We have made provision for parliament to grant further extensions of a State of Emergency for two months at a time.

 

11.       We have also made provision for a proclamation of a State of Emergency to be revoked at any time either by the National Executive Council or by a resolution passed by a simple majority in parliament.

 

Additional Powers during State of Emergency

 

12.       We recognize the need for the executive to be able, in times of emergency, to firmly control manpower, supplies and services to ensure that the abilities of both skilled and unskilled people are utilized in the most effective way, and that vehicles, aircraft, ships, essential services and basic supplies are used to the best advantage.  Thus, the executive could direct particular individuals to carry out certain tasks considered essential, could ration products such as petroleum, food and clothing, and use trucks and aircraft to transport supplies quickly to wherever they were needed.

 

Right to a fair trial

 

13.       We have given very careful consideration to the question of whether, in an emergency situation, the executive should be empowered to imprison people whom it believes are involved in activities which it regards as a threat to the security of the country.  These activities might be of a terrorist nature or might be those of a collaborator with enemy forces.

 

14.       We are aware that in many countries the government has the power of preventive detention, which it does not hesitate to use, but we do not accept that such a power is essential to the Government of this country in any emergency situation which we can foresee.  Unlike the pre-independence situation in a number of other countries which, until recently, were subject to colonial rule, Papua New Guinea does not have any legislation which permits preventive detention.  Difficult civil disorder situations in various parts of the country have been handled in the past without resorting to preventive detention, and we do not consider that provision for such legislation is justified.  We believe that the right to a fair trial is fundamental in a democratic society and that preventive detention cannot be justified except if our country is at war, or is in the grip of an extreme form of internal crisis due to widespread terrorist or guerrilla activity or civil war.  We have therefore made no recommendation empowering the Government to exercise powers of preventive detention.

 

Safeguards against abuse of possible power of preventive detention

 

15.       The Committee does, however recognize that at some time in the future a ....... civil strife may arise which is so grave that a very substantial number of Members of Parliament will be prepared to accept, during the crisis period, a suspension of the provisions of the Constitution which ensure that a person is not held in custody without a fair trial.  This would enable legislation to be passed providing for detention without trial of, for instance, alleged tourist leaders.

 

16.       Our recommendations provide for this contingency.  Whilst we propose that the passing of a law providing for preventive detention at any time other than during a State of Emergency be prohibited, we have allowed for the provisions of the Constitution protecting the right to a fair trial to be suspended by a resolution of the National Parliament passed by a special majority.  That majority should, we believe be a substantial one, namely two thirds of the members of the National Parliament.

 

17.       We appreciate that in situations of this kind it can be very important that appropriate action be taken promptly.  On the other hand, where a matter which is so basic as is the right not to be held in custody except upon conviction in court after a fair trial (or in accordance with a court order made in respect of a person who is awaiting trial) is at stake we believe Members of Parliament should be allowed sufficient time to read the proposed legislation carefully, and give thought to its implications.

 

18.       Our proposal is that in time of war, a motion for the suspension of the provision of the Constitution concerning the fundamental right of personal liberty, or the right to the protection of the law, should be voted upon only after twenty four hours have passed following the moving of the motion.  In a situation where a State of Emergency exists other than ..... because the country is at war, there should be a longer period of time allowed members before they are obliged to vote on the motion.  This period should, we believe, be seven days.

 

19.       We further recommend that the bill providing for preventive detention must be circulated to members either before the motion for the suspension of the relevant constitutional provisions is moved, or at the same time.  We consider that it should not be possible for the bill to be passed until after the motion for the suspension of the relevant provisions of the Constitution has been passed.

 

20.       We recommend that in the event that the Constitution is suspended in this way, Parliament should be able to end the suspension by passing a resolution to that effect by a simple majority.  In any event, we propose that the suspension would end automatically when the State of Emergency ceases.

 

21.       The last six recommendations we have made in this Part deal with a situation in which the provisions of the Constitution safeguarding personal liberty and the right to a fair trial have been suspended or amended to enable the Government of the day to pass legislation under which it could "preventively detain" people whom it has good reason to suspect of activity aimed at violently overthrowing the duly elected Government.  These recommendations are intended to protect our people from abuses of this extremely wide and dangerous power.  Experience in many other countries shows how often governments which use this power do so for political ends rather than to genuinely protect national security.

 

22.       These recommended provisions would be even more difficult to change than the human rights provisions in Part 1 - requiring a three quarters majority of the Members of Parliament to be amended.

 

23.       The first of these provisions requires the establishment of an independent, impartial review tribunal comprising a chairman (who should be an experienced lawyer qualified for appointment as a judge) and two other members, all of whom would be appointed by the Judicial and Legal Service Commission, within three days of the commencement of any law permitting preventive detention.

 

24.       We have recommended that subject to two exceptions, no person should be kept in preventive detention for longer than two months unless a review tribunal has reported to the responsible Minister, before the end of that period, that in its opinion sufficient cause has been shown for the detention.  The exceptions relate to a situation in which Papua New Guinea is at war with another country.  In these circumstances a person who is a national of a country with which Papua New Guinea is at war would not have the right to have his case considered by a review tribunal, whilst any other person detained would not have an automatic review of his case - he would have to request a review.

 

25.       We have recommended a number of other safeguards concerning detained persons other than those who are foreign enemies in time of war, namely that -

 

                     within twenty-four hours of his being detained, a person shall be given a statement in writing, in a language he understands, which sets out in detail the grounds on which he has been detained.  Furthermore, his next of kin must be given a copy of the statement within fourteen days of his being detained;

 

                     not more than ten days after a person has been detained, notification of the detention shall be published in the Gazette and particulars must be given there of the provision of law under which the detention is authorized;

 

                     not more than one month after the commencement of his detention, and subsequently at intervals of not more than three months, the case of a detained person (other than a person who has been detained in time of war) must be reviewed by a review tribunal;

 

 

                     at the expiration of a period of six months, a person in detention (other than a person who has been detained in time of war) must be either released or charged with a specific offence for which he can be brought to trial;

 

                    reasonable facilities are to be made available to the detained person (including the opportunity to apply for legal aid), to enable him to consult a lawyer of his own choice, and the legal representative he chooses should be permitted to make representations on his behalf to a review tribunal;

 

                     when his case is reviewed by the tribunal, the detained person shall be entitled to appear in person or by his legal representative; and

 

                    while in detention, the person must be treated at least as favourably as a remand prisoner awaiting trial, since he would not have been convicted of any crime.

 

Powers of the review tribunals

 

26.       We recommend that review tribunals should have power to make binding recommendations to the responsible Minister as to whether they consider sufficient reasons have been shown by the executive for detaining particular persons.  Although such tribunals would not be courts of law hearing only legally admissible evidence in respect of charges of specific criminal offences, we believe it is extremely important that the executive be bound to accept and act upon their recommendations except in time of war.  Otherwise, the tribunals would be likely to be ineffective.

 

27.       We believe that a review tribunal should also have power to make binding recommendations and fair compensation should be paid to people who have been detained without justification.  As well as providing redress for the unfortunate person who has been unjustifiably detained, this provision might also have some effect as a deterrent to the executive carrying out arbitrary arrests of innocent people under preventive detention powers.   

 

28.       It is further proposed that the part of a tribunal's report which sets out its view as to whether or not the Government has shown sufficient reason for detaining a person, and the recommendations it has made based on that view, should be promptly made available to the detained person, and to his next of kin.  This would enable action to be taken in the National Court, on behalf of the detained person, if the recommendations of the tribunal were not acted upon promptly.

 

Report to Parliament and gazettal of names and addresses of persons detained

 

29.       In order that parliament and people generally may be kept informed, at regular intervals, as to exactly how many people are detained at a given time, and who the detainees are, we recommend that in every month in which parliament sits during a State of Emergency the responsible Minister should make a report to parliament in which these important facts are set out.  Such reports should also indicate the number of cases in which a review tribunal has made recommendations, and the action taken in respect of each case in which a recommendation has been made for a person to be released.  Thus Members of Parliament would have the opportunity of supervising the administration of the preventive detention legislation - a truly vital role.

 

30.       As parliament is unlikely to be meeting continuously during a State of Emergency, we have also recommended that the responsible Minister publish in the Government Gazette each month the information concerning detained persons which he is required to table in parliament.

 

31.       To avoid any doubt as to the intention that immediately after a State of Emergency ends all persons who have been detained during the Emergency must be released, we have recommended that a specific provision to this effect be included in the Constitution.

 

Invalidity of certain acts done under Emergency Powers

 

32.       In accordance with our underlying principles, we recommend that statutory instruments made under emergency legislation should specify the particular State of Emergency to which they apply, and cease to have effect when that emergency period ends.  Also, actions taken under the authority of powers conferred by emergency legislation should be subject to the scrutiny of the courts as to whether they were reasonably required for dealing with a particular situation.

 

33.       These safeguards are intended to ensure that regulations made under emergency powers cannot have effect other than during the particular emergency situation for which they were drafted, and to discourage those who exercise emergency powers from abusing them by acting arbitrarily, without regard to the particular circumstances in which they are being used.

 

PART 2 - EMERGENCY POWERS

 

Proclamation of "State of Emergency"

 

1.                     (1)        In this Chapter "State of Emergency" means any period during which -

 

(a)        Papua New Guinea is at war; or

 

(b)        there is in force a gazetted proclamation by the National Executive Council declaring that a State of Emergency exists.

 

(2)        A proclamation made by the National Executive Council shall not be effective unless it contains a declaration that the National Executive Council is satisfied -

 

(a)        that an emergency has arisen as a result of the imminent danger of war between Papua New Guinea and another state or of warlike operations threatening national security;

 

            (b)        that an emergency has arisen as a result of an earthquake, volcanic eruption, hurricane, flood, fire, outbreak of pestilence or infectious disease, or other calamity whether similar to these occurrences or not; or

 

            (c)        that action has been taken, or is immediately threatened by any person, of such a nature, and on so extensive a scale as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life.

 

(3)        A proclamation of a State of Emergency shall be made in respect of Papua New Guinea as a whole if it is based on paragraph (a) of clause (2) above, but may be made in respect of Papua New Guinea as a whole or any part of Papua New Guinea if the proclamation is based on the circumstances set out in paragraph (b) or (c) above.

 

(4)        Within three days of the making of the proclamation, the Prime Minister shall deliver to the Speaker for presentation to the National Parliament a statement setting out the specific grounds on which the decision to declare the existence of a State of Emergency was based.  Immediately after that presentation a date shall be fixed for a meeting of Parliament as soon as practicable, at which meeting the statement may be debated.  That meeting shall take place in any event not later than fourteen days from the date of the proclamation.

 

            Note:  The Committee has made specific recommendations in Chapter 10, "Provincial Government" concerning the need for close consultation with affected Provincial Governments before declaring a State of Emergency in respect of a part of Papua New Guinea.

Extension of Proclamation

 

2.                     (1)        A proclamation made by the National Executive Council for the purposes of and in accordance with recommendation 1 above shall, unless previously revoked, remain in force for -

 

            (a)        eight days, if the National Parliament is sitting or arrangements have been made for it to meet within seven days; or

 

            (b)        fifteen days, if Parliament is not sitting and no arrangements have been made for it to meet within seven days.

 

(2)        Before its expiration a proclamation made under recommendation 1 above may be extended from time to time by resolution supported by an absolute majority of the members of the Parliament,

                                    provided that no extension exceeds two months.

 

(3)        A proclamation may be revoked at any time -

 

(i)         by the National Executive Council; or

 

(ii)        by a resolution supported by a simple majority vote of Parliament.

 

(4)        (a)        Nothing in clauses (1), (2) and (3) above shall affect the validity of a proclamation after the expiration of a particular period of time specific in one of those clauses in the event that it is in fact physically impossible or unreasonably dangerous for Parliament to meet within the period of time so specified.

 

            (b)        In a situation to which paragraph (a) above applies, Parliament shall be called together as soon as it is physically possible or reasonably safe (as the case may be) to do so.

 

Control of manpower

 

3.         Nothing in the Committee's recommendation in Part 1 of this Chapter (Human Rights and Obligations) concerning protection from forced labour shall invalidate any law insofar as the law authorises the taking, during a State of Emergency, of measures that are reasonably required in the interests of peace and order and the welfare of Papua New Guinea to deal with a situation that exists during that State of Emergency.

 

Control of products and services

 

4.         Nothing in the Committee's recommendations in Part 1 of this Chapter shall invalidate a law which, during a State of Emergency, empowers the responsible Minister, with the approval of the National Executive Council to make such orders concerning the production, importation, storage, supply, use, distribution and sale of any product or service declared by that Minister to be an "emergency item", or the requisition of such vessels, aircraft or vehicles as are reasonably required to deal with a situation that exists during that State of Emergency.

 

Suspension of human rights provisions concerning personal liberty and protection of law

 

5.                     (1)        Any provision in Recommendation 2 or Recommendation 6 in Part I of this chapter may be suspended in accordance with this recommendation during a State of Emergency to enable the passing of a law which authorises the taking, during that State of Emergency, of measures that are reasonably required for the purpose of dealing with a situation that exists during that State of Emergency.

 

            (2)        A motion for the suspension of a provision referred to in clause (1) above may be moved only if -

 

(a)        a State of Emergency exists;

 

(b)        the motion is moved by the Prime Minister or Acting Prime Minister;

 

(c)        prior to or simultaneously with the moving of the motion, a bill the validity of which, if passed, would be dependent upon the passing of the motion for the suspension of a particular provision of Recommendation 2 or Recommendation 6 of Part I of this Chapter, has been or is circulated to members of the National Parliament.

 

            (3)        A motion moved in accordance with clause (2) above may not be voted upon until the expiration of a period of -

 

(a)        twenty-four hours, if Papua New Guinea is at war; or

 

(b)        seven days, if a State of Emergency exists by reason of a proclamation having been made in accordance with the provisions of Recommendation 1 above,

 

                        after the moving of the motion.

 

            (4)        A motion moved in accordance with the provisions of clauses (2) and (3) of this recommendation shall not be passed unless it is supported by the individually recorded votes of not less than two-thirds of the members of the National Parliament.

 

            (5)        A resolution passed in accordance with the provisions of this recommendation may be rescinded at any time by a simple majority vote in the National Parliament, and, in any event, shall automatically cease to have effect when the State of Emergency during which it was passed, ends.

 

Preventive Detention during State of Emergency

 

6.                     (1)        No law may authorise preventive detention otherwise than during a State of Emergency, and in accordance with Recommendation 5 above.

 

            (2)        Where during a State of Emergency otherwise than when Papua New Guinea is at war with another State, preventive detention is authorised by law, no person shall be kept in preventive detention for a period longer than two months unless a tribunal (referred to below as a review tribunal) has reported before the expiration of that period that in its opinion sufficient cause has been shown for the detention.

 

            (3)        The period of two months under clause (2) above may consist of an aggregate of two or more shorter periods if the period intervening between the end of any of these shorter periods and the beginning of the next is less than two months.

 

            (4)        A person who has been detained under any law providing for preventive detention, and who has been released from detention in consequence of a report of a review tribunal that in its opinion sufficient cause has not been shown for his detention, shall not again be held in preventive detention within a period of six months from his release except as provided in clause (5) below.

 

            (5)        If at any time within the period of six months referred to in clause (4) above a review tribunal reports that in its opinion there appear prima facie to be new and reasonable grounds for the detention, it shall be permissible to detain the person on the new grounds, subject to clause (2) above.

 

            (6)        A review tribunal shall be an independent and impartial tribunal established by law, consisting of a chairman (who shall be a person qualified for appointment as a judge of the National Court) and two other members, appointed by the Judicial and Legal Service Commission.

 

            (7)        A review tribunal shall be appointed within three days of the commencement of any law permitting preventive detention which is passed after the suspension of the constitutional provisions protecting the right to personal liberty.

 

Note:  (i)          The term "preventive detention" should be defined broadly so as to encompass restriction of movement orders made in respect of named persons by any non judicial authority.

 

 (ii)         It is not intended that a judge or magistrate should normally sit as a member of a review tribunal.  The Committee envisages that an experienced practising lawyer would generally be chosen as chairman.  However, clause (6) of this recommendation leaves open the possibility of a judge or magistrate chairing a review tribunal.

 

Preventive detention during time of war

 

7.         During a State of Emergency arising by reason of the existence of a state of war -

 

(a)        if any person (other than a foreign enemy) held in preventive detention so requests, his case shall be reviewed by a review tribunal;

 

(b)        a person may make a request under paragraph (a) above at any time during his detention, but not earlier than three months after he last made such a request during the same period of detention;

 

            (c)        on any review by a review tribunal of the case of a detained person under this clause, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by whom it was ordered but, unless otherwise provided by law, that authority shall not be obliged to act in accordance with those recommendations.

 

Safeguards against abuse of possible powers of preventive detention

 

8.         Where a person (other than a "foreign enemy" in time of war), is held in preventive detention during a State of Emergency, the following provisions shall apply -

 

(a)        he shall, as soon as is reasonably practicable, and in any case not later than twenty-four hours after the commencement of his detention, be furnished with a statement in writing in a language he understands (and if he is illiterate the statement shall be explained to him in a language he understands), specifying in detail the grounds upon which he is detained; and his next of kin shall also be informed of his detention and of the grounds on which it is based as soon as is practicable after the commencement of his detention, and in any event not more than fourteen days after that time;

 

(b)        not more than ten days after the commencement of his detention a notification shall be published in the Gazette stating that he has been detained and giving particulars of the provision of law under which the detention is authorised;

 

(c)        subject to Recommendation 7 above, not more than one month after the commencement of his detention, and afterwards during his detention at intervals of not more than three months, his case shall be reviewed by a review tribunal;

            provided that the same tribunal shall not review more than once, the case of a person detained;

 

(d)        at the expiration of a period of six months from the commencement of his detention, he shall be either released or brought to trial on a charge of an offence;

            provided that this provision shall not apply to a person who is detained in accordance with the provisions of Recommendation 7 above;

 

(e)        he shall be accorded reasonable facilities, including the opportunity to apply for legal aid, to consult a legal representative of his own choice, who shall be permitted to make representations on his behalf to a review tribunal;

 

(f)         at the review of his case by a review tribunal, he shall be permitted to appear in person or to be represented by a legal representative of his own choice; and

 

(g)        while in detention, he shall be treated in a manner not less favourable than that in which a person who is on remand awaiting trial is treated.

 

 

Note:  A "foreign enemy" is a person who is a citizen of a country which is at war with Papua New Guinea.

 

Powers of Review Tribunal

 

9.         (1)        On any review by a review tribunal of the case of a restricted or detained person, the tribunal shall make recommendations to the responsible Minister based upon whether sufficient cause has been shown for the continuance of the detention or restriction.

 

            (2)        The review tribunal shall also have power to recommend the payment of just compensation (the amount of which it shall specify) to any person whom it considers has been detained or restricted without sufficient cause.

 

            (3)        A copy of that portion of the report of a review tribunal which sets out the tribunal's view as to whether or not sufficient cause for the detention of a person has been shown, and the tribunal's recommendations based on that opinion, shall be forwarded to the detained person within three days of the report being presented to the responsible Minister, and to his next of kin within fourteen days of the presentation of the report.

 

Recommendations of Review Tribunal binding

 

10.       (1)        If a review tribunal recommends the release of a person from detention the responsible Minister shall forthwith act in accordance with that recommendation.

 

            (2)        A recommendation that fair compensation be paid to a person who has been detained shall bind the Government of Papua New Guinea in the same manner as would an order of a court.

 

Report to Parliament and gazettal of names and addresses of persons detained

 

11.      (1)        In every month in which there is a sitting of the National Parliament during a State of Emergency the responsible Minister shall make a report to the Parliament as to the number of persons detained under a law referred to in Recommendation 71(2) above, the number of cases in which a review tribunal has carried out a review and made recommendations, and the action taken by the responsible Minister in respect of each case in which the tribunal has made a recommendation that a person detained should be released or charged with an offence.

 

            (2)        In addition to the requirements of clause (1) above, the responsible Minister shall cause to be published in the Gazette each month during a State of Emergency -

 

             (i)         the number and the names and addresses of persons detained; and

 

            (ii)         the number of cases in which a review tribunal appointed in accordance with Recommendation 6(6) above has recommended that a detainee be released or charged with an offence, and the action taken by the responsible Minister in respect of each of these cases.

 

            (3)        To avoid doubt, the Constitution shall provide that at the end of any period of emergency during which a law authorising preventive detention has been in force, any person in detention shall forthwith be released.

 

Emergency legislation to be in force only during a State of Emergency

 

12.       An Act of Parliament which is a law to which Recommendation 3, 4, 5 or 6 above applies (in Recommendation 13 called an emergency Act), shall expressly provide that it is not to have effect except during a State of Emergency.

 

Invalidity of certain acts done under Emergency Powers

 

13.                   (1)        A statutory instrument made under an emergency Act shall apply only to a particular State of Emergency specified in the instrument and it shall expire at the end of that period.

 

            (2)        Notwithstanding the validity of an emergency Act, any act done under it (including any subordinate legislation made under it) shall be invalid if it is not reasonably required for the purpose of dealing with the actual situation in the context of which it is done.

 

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