January 31, 2014
Papua New Guinea supreme court also gives PNG opposition leader green light to challenge asylum agreement with Australia.
Asylum seekers detained on Manus Island should be made aware of their right to appeal against their detention under Papua New Guinea law, the country’s supreme court has said.
It also said that the constitutionality of the agreement between PNG and Australia is open to legal challenge.
PNG’s supreme court on Wednesday ruled that opposition leader Belden Namah should be allowed to challenge the agreement between Australia and PNG to transfer all irregular maritime arrivals to the Manus Island detention centre.
Namah wants PNG to stop receiving the asylum seekers.
“The applicant is a citizen who has, in our assessment, a genuine concern for the subject matter of the application,” read the court’s ruling in a preliminary hearing on Namah’s case.
“The argument therefore appears to be that the detention of the transferees is inherently unconstitutional, and that it was beyond the constitutional power of the national government to enter into an arrangement with another country that created that situation.”
The ruling from a bench of five highly regarded judges on PNG’s highest court dismissed arguments that Namah could not launch a challenge because he was not directly affected by the controversial scheme. Their decision means that Namah’s case can continue, but Guardian Australia understands it is not expected to restart for at least three months.
In its ruling the court also noted that while detainees can also appeal to the courts, none have done so. The application process had been made deliberately easy, they said, and queried whether detainees knew this legal avenue was available to them.
Guardian Australia understands it is unlikely detainees inside the centre have had any legal assistance with their claims for asylum – something that was previously available to them through Australian law firms but which ended when the Australian government said that arrivals would no longer be settled in Australia.
It is believed this lack of legal aid is part of the reason why no appeals or claims have been heard.
The court suggested that rights groups such as Human Rights Watch and Amnesty International may be allowed to mount cases on behalf of detainees.
Human Rights Watch Australian director Elaine Pearson said one barrier to bringing a successful court challenge was that lawyers did not have access to detainees.
“Only a few lawyers have been able to talk to detainees by phone,” said Pearson.
“That’s one of the practical problems that needs to be dealt with. Lawyers need to have access to Manus Island.”
The court took to task two PNG authorities which it said should be taking a greater interest in human rights issues at the processing centre.
“It is perhaps surprising that two constitutional offices that should feel a great responsibility for protection and enforcement of human rights in Papua New Guinea – the public solicitor and the ombudsman commission – appear to have shown no interest in these issues,” it said.
“The public solicitor is a law officer … and therefore entitled under section 19(3)(c) to make an application … but frankly it is difficult to remember the last time that the public solicitor exercised this important power. The ombudsman commission … has an impressive record of making special references on a wide range of constitutional issues under section 19(1). But the issues raised in the present case, as significant as they are, do not appear to have attracted the commission’s attention.”
In August, PNG’s foreign minister pledged to introduce legislation to stop constitutional challenges against the asylum-seeker processing centre.