Interesting UPDATE FROM PNG COURT on legality of Manus Camp
#Manus Update from Ben Lomai on the court hearing on Thursday 30 October 2015.
I said to give you and others a brief of what happened in Court today. Following is the account of the Court proceedings.
The matter was presided over by Deputy Chief Justice Gibbs Salika, Judges Ambeng Kandakasi, Don Sawong, Terrence Higgins and Ere Kariko.
An initial procedural issue as to Facts was raised by the Immigration lawyers. They argued parties did not agree to the Facts before proceeding with the hearing. However, Namah said that all parties signed the Index to Application Book which then constituted consent to have this matter set down for hearing. The Court ruled in favour of Namah and allowed the parties to proceed to hearing.
The Court started on a premise that sec 42 (Liberty of Person) of the PNG Constitution was a qualified rights and therefore to amend it would require compliance with sec 38 requirements: 1) a law to amend must specifically state the purpose for which it sought amendments and 2) the extent of rights it sought to restrict must be clearly defined.
The Supreme Court noted and agreed that these requirements has not been complied with.
The Court also noted that there was no debate during the 2nd and 3rd readings by Parliament on sec 42 amendment. The amendment was hastily passed. The Court further noted that sec 64 (dual citizenship) was incorrectly substituted for sec 42. It was a fatal mistake orchestrated by Parliament.
In order for the asylum seekers to come under the initial sec 42(1)(g) they all have to be illegal migrants. The Court noted however that all the asylum seekers were forcibly transferred against their will from Christmas Island to Manus Island.
The Court further noted that the asylum seekers have never committed criminal offences to warrant their detentions. The DCJ Salika kept on stressing the point that ‘why keep asylum seekers when they have committed no wrong?’ They are not even security risks to PNG.
It was also noted by the Court that the MOU is not legally binding because it was neither a treaty nor a legally enforceable contract. It was only an ‘understanding’. Further, the MOU is not compliant with the Constitution.
When told by Immigration lawyers that the administrative arrangements between PNG and Australia is ongoing on refugees, the Court said their priority is to protect liberty of a person than bogg down on administrative arrangements that do not comply with domestic laws and international laws and conventions.
Further, there was no legal framework for the process and resettlement of refugees in PNG, which in itself is undemocratic and unconstitutional, to detain a person against his will and in breach of his personal liberty.
The Supreme Court was unanimously in its response to Namah’s submission.
The Court retired after informing the parties that it will make its decision a little later.
If you or any asylum seekers or all our supporters including refugees advocacy groups and individuals require clarification, please let me know.