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Internal Security Act; Reference by the Ombudsman Commission, Re [1994] PGSC 9; [1994] PNGLR 341 (4 May 1994)

PNG Law Reports 1994

[1994] PNGLR 341 - Re Internal Security Act; Reference by the Ombudsman Commission 

[1994] PNGLR 341

SC470

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 3 OF 1993

SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 19

RE INTERNAL SECURITY ACT;

REFERENCE BY THE OMBUDSMAN COMMISSION

Waigani

Amet CJ Kapi DCJ Woods Los Hinchliffe JJ

27 October 1993

4 May 1994

CONSTITUTIONAL LAW - Emergency powers - Section 19 reference - Internal Security Act - Whether an Act under Constitution Part X -Emergency Powers.

CONSTITUTIONAL LAW - Basic rights - Whether Internal Security Act an infringement - Reference to terrorist activities - Act considered with reference to infringement of Constitutional rights - Exclusion orders - Prohibited areas and restricted areas - Internment - Role of court to review.

Facts

The Ombudsman Commission, in a reference to the Supreme Court, challenged the constitutional validity of the Internal Security Act, 1993 on several grounds. It argued that the Act was, in effect, an exercise of emergency powers within Part X of the Constitution, the validity of which depended on a declaration of national emergency; that it offended the constitutional separation of powers by giving too much power to the National Executive Council. The Commission also submitted that the Act breached numerous basic rights provisions of the Constitution, including rights of full protection of the law guaranteed to persons charged with an offence; to personal liberty; freedom from arbitrary search and entry; freedom of expression; freedom of assembly and association; freedom of movement; and protection from unjust deprivation of property.

Held

The Act is constitutionally valid, whilst a number of its specific provisions which infringe some basic rights in the Constitution are invalid.

Kapi DCJ, dissenting, the whole Act is invalid because it did not comply with Constitution s 228 (Declaration of National Emergency).

Cases Cited

Papua New Guinea case cited

Wari v Ramoi [1986] PNGLR 112.

Other cases cited

Hector v Attorney-General of Antigua and Barbuda [1990] 2 AC 312; [1990] 2 All ER 103; [1990] 2 WLR 606.

R v Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598; 19 ALJ 246.

Counsel

D Cannings and M Gene, for the referrer.

P Ame and B Ninai, for the State.

4 May 1994

AMET CJ WOODS LOS HINCHLIFFE JJ: This is a reference by the Ombudsman Commission which challenges the constitutionality of the Internal Security Act 1993 (No 20 of 1993), passed by the National Parliament in May 1993. The referrer has posed a number of questions to the Court, raising the issues that the Act is unconstitutional in that it imposes unauthorised, unnecessary, and unreasonable restrictions on a number of Basic Rights in the Constitution. Whilst, generally, the questions put to the Court challenge each provision of the Act in succession, the first question addresses the fundamental issue of the relationship between the Basic Rights in the Preamble of the Constitution and the Emergency Powers in Part X of the Constitution.

QUESTION 1

Is the Internal Security Act 1993 invalid and ineffective in its entirety, in that it is inconsistent with Part X of the Constitution (Emergency Powers)?

Part X of the Constitution confers extensive powers on the National Parliament to make laws in situations of national emergencies, which laws can impose severe restrictions on the exercise of many of the Basic Rights. This part allows the Parliament to enact laws which permit the internment of persons.

The referrer has submitted that the Internal Security Act is, in effect, an exercise of those Emergency Powers, as it uses the words considered in that part and permits the internment of persons.

Does the Court look first at Part X and categorize the Act as being governed by that Part, or does the Court analyse the Act section by section and see whether, viewed as a whole, it deals with and affects the Basic Rights.

Part X envisages that there may be times when the Parliament may be faced with a national emergency such as, to summarize: imminent danger of war, or warlike operations threatening national security; earthquakes, volcanic eruptions, or natural calamities of such a scale as to endanger public safety or so disrupt services etc; action taken or threatened of such a nature or so extensive a scale as to be likely to endanger the public safety.

The Part thus envisages that the National Executive Council may make an appropriate declaration of national emergency under s 228, and then Parliament is empowered to make Acts of Parliament to deal with the emergency. Such acts may involve abridgements of Basic Rights and even internment.

So Part X envisages that the Government, when faced with an extreme situation, must first make an appropriate declaration, and then can legislate or decree accordingly.

The referrer submits that, there being no national emergency as envisaged by Part X, and no appropriate declaration, there is no constitutional support for the Internal Security Act, because if one looks at the Act, it is quite clearly drafted and enacted with Part X in mind. But why does it say this? The referrer says this because a broad examination of the Act suggests that the circumstances considered are serious enough to pose a great danger to the public, which in the words of Part X are of "so extensive a scale, as to be likely to endanger the public safety". So, it is clearly trying to cover Part X situations in advance of any appropriate declaration. Thus, for example, any use of arms or explosives envisaged in s 3 of the Act for political ends or for putting the public in fear must be the same as envisaged in Part X to be likely to endanger the public safety. And also the Act bears all the characteristics of laws enacted in other jurisdictions to deal with threats to the authority of the State. Such characteristics include giving power to the Government to:

ban political organizations;

prohibit public meetings;

impose widespread restrictions on freedom of movement;

permit search and entry without a warrant;

permit seizure of property with compensation;

and provide for arbitrary arrest and detention.

So, the referrer says that the Act is, in essence, a piece of emergency legislation and, because there has been no declaration of a national emergency, there is no legislative power to make such law. The law-making power of the National Parliament is circumscribed by the Constitution.

But, is it as simple as that to categorize the Act as an emergency powers act?

What does the preamble say?

"Being an Act to make provision for maintaining the internal security of Papua New Guinea by providing measures to combat terrorism and terrorist activities, and for related purposes."

That allies with none of the matters listed or covered in the definition of emergency in s 226 of the Constitution. Terrorism or terrorist activity is not of itself warlike operations, although it could become part of such. And it may not necessarily be of so extensive a scale as envisaged in of the definition. Terrorism or terrorist activities, in its ordinary meaning, could refer to situations of far less a serious or widespread nature than those envisaged in Part X. Terrorism could be done or inflicted by just a handful of persons and committed or threatened in small pockets or areas. So, surely, it would be an unnecessary exaggeration to immediately assume we are talking about widespread disturbances of warlike activities.

The Internal Security Act seems to be limited to terrorist activities or terrorism, words which do not appear anywhere in Part X.

Does the fact that the Constitutional Planning Committee (CPC) used the words "activities of a terrorist nature" or "widespread terrorist or guerilla activity" mean that it was also limiting that any terrorist threat of however small a scale must be limited by Part X? Note that when it used those words, the CPC was using them in conjunction with the concept of enemy forces and civil war. Yet the Internal Security Act makes no reference to widespread disruption or civil war or enemy forces.

To say that the Internal Security Act comes under Part X is to read up the whole Act just because one section of the Act refers to a matter which seems to be restricted to Part X, namely detention. Is Parliament trying to camouflage emergency legislation into an ordinary law, and should the Court say that it sees through the camouflage? Each of the arms of government should carefully recognise the ambits of their respective area. The legislature, as the elected representative, has the power to make such laws as it considers necessary for the good government of the country. The judiciary is given the power under the Constitution to carefully consider whether laws do conflict with rights and procedures guaranteed under the Constitution. Whilst it may be very easy for the Court to say it sees through a screen of ordinariness and read up such legislation as this Internal Security Act, is it proper for the Court to do this? We believe the Court has to be very careful in, in effect, interfering with the exercise of legislative or executive power. It should only do so where it is expressly empowered to do so under the Constitution. And the Court has that power if the ordinary law clearly abrogates the right granted or protected under the Constitution. To invalidate a whole Act just because it has one section which seems to be using a power which is restricted is using too broad a brush. Yes, the various sections of the Act can be looked at to see how they may affect the Constitutional Basic Rights, but the whole Act cannot necessarily be voided just because of one small part.

There is nothing in the Preamble or otherwise in the Act to limit the Act to the restrictive legislative power in Part X of the Constitution.

The answer to question 1 is "No".

CONSTITUTIONAL PRINCIPLES

In all the remaining questions we must have regard to three constitutional principles: no authority is higher than the Constitution itself, Constitution s 11(1); it is through the Constitution that the executive power of the people is vested in the executive arm of the State, Constitution s 138; it is through the Constitution that the legislative power of the people is vested in the National Parliament, Constitution s 100; and it is through the Constitution that the judicial power of the people is vested in the judiciary, Constitution s 158(1). In principle, therefore, the exercise of each power must be kept separate from the exercise of other powers vested in different arms of the government Constitution s 99(3). If one of the arms attempts to perform any of the power assigned to another, then that authority is acting contrary to the Constitution, because it is usurping the power of another arm.

Time and time again, we, either as National Court Judges or Supreme Court Judges, have reminded ourselves to jealously guard against any possible encroachment upon the judicial power. However, with respect, we should not be so mystical as though at every corner we may find an act of encroachment.

Having said that, one must start on the premise that an action by one arm is assumed to be constitutionally valid until shown to the contrary. For instance, when a law is passed by the Parliament, it must be assumed that, as an intelligent law-making authority, it has considered all the ramifications of that piece of legislation, including whether there may be any conflict with the Constitution. Bearing that in mind, we must construe the provisions of the Internal Security Act as far as possible to avoid any conflict with the Constitution. In this respect and in principle, we are guided by the decision of the Privy Council on appeal by the Attorney-General of Antigua and Barbuda in Hector v Attorney-General of Antigua and Barbuda [1990] AC 312, though we are mindful that the Constitution of that country may not be the same as ours. We also get some very general guidance from a decision of the Australian High Court in R v Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598. At p 616, the Court said:

"In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them. Further, if there is an opposition between the Constitution and any such provision, it should be resolved by adopting any interpretation of the provision that is fairly open."

QUESTION 2

Are the provisions of Parts III, IV, V, and VI of the Internal Security Act 1993 inconsistent with s 37(11) of the Constitution and the constitutional separation of legislative, executive, and judicial powers?

Part I s 3 of the Act creates the offence of terrorism. By s 4, where an organisation appears to be engaged in terrorism, the Head of State, acting on advice, may declare such organisation to be a proscribed organisation. Section 5 provides for an appeal against such a declaration. This appeal is to the Minister, who submits the appeal to the National Executive Council for determination. It is suggested that this is a function that should not be put into the ambit of the body that made the original declaration. However, firstly, there is a distinction between the action of declaring a proscribed organisation and then considering the appeal, because the appeal is supported with reasons which, therefore, means the National Executive Council is taking a wider view of the organisation so proscribed. And then the National Court and Supreme Court would still have the wider power of review under Constitution s 155.

Parliament is the body entrusted with the power to make laws for the good government of the country, and no people conscious of the need to protect the rights of a democratic society to exercise its freedom could tolerate any organisation that encourages terrorism or terrorist acts, as defined in s 2 or as suggested in s 3. The offences detailed in s 6 of the Act are determinable before the judicial arms. However, we must find that s 6(4), in providing that the Commissioner for Police having certified that a person is a member of a proscribed organisation shall be prima facie evidence of that fact is an affront to the presumption of innocence, as provided for in Constitution s 37(4), and is, therefore, also contrary to s 37(11).

PART IV - EXCLUSION ORDERS

Section 8 purports to enable courts and the National Executive Council (NEC) to make exclusion orders. But we consider that, as the extent and effect of the exclusion orders are of such magnitude, the orders must only follow a finding of guilt by a court; orders should not be made on the opinion of the NEC under s 8(1)(b) that certain offences under the Act may likely to be committed. Once a court makes a decision under s 8(1)(a), all the normal review provisions in the District Court, National Court and Supreme Courts acts apply. So there is no ousting of the judicial power.

However, with respect to s 8(1)(b), we agree that it is giving the NEC a judicial function, and this is contrary to s 37(11).

We find that the appeal provided for in s 9 is not an appeal against a judicial act, namely a conviction, but only an appeal against the making of an exclusion order, thereby an administrative act which itself can always be subject to review under Constitution s 155. The referrer has cited the case of Wari v Ramoi [1986] PNGLR 112. However, that case, in effect, suggested that the proper party to the proceedings should have been the State; thus, if the proceedings had been taken properly against the State, then there may not be a bar to judicial review or other proceedings. In any event, with the exclusion of s 8(1)(b), the exclusion orders may be of less concern, as they will only now apply to persons who have been convicted by a court of an offence against the Act. It is legitimate to have consequential orders of this nature, analogous to restriction orders as part of penalties under the Criminal Code. The other sections in Part IV are consequential.

PART V - PROHIBITED AREAS

This part allows an administrative power of declaration by the NEC when, through its enormous resources, it has gathered sufficient information of danger and threat to peace, life, and property in the country. Although the heading suggests the area under an order is totally prohibited, the provisions of ss 15, 16, and 17 are restrictive in their nature. The prohibition order over an area is of limited duration and is subject to the control by the Parliament, a well-known mechanism in a parliamentary democracy. The provisions do not attempt to oust the jurisdiction of any court, because guilt or otherwise of a person charged with an offence under Part V can only be decided by a court under s 19. The provisions of s 19 give an opportunity to a person to even challenge the criminality of the acts under this part. We consider that the provisions of Part V are not in breach of s 37(11) of the Constitution.

PART VI - RESTRICTED AREAS

We repeat what we said in reference to Part V. We consider that the provisions of Part VI are not in breach of s 37(11) of the Constitution.

On question 2, therefore, we only say "Yes" to s 6(4) and 8(1)(b).

QUESTION 3

Is s 3 of the Internal Security Act 1993 inconsistent with ss 32(2), 36(1), and 37(2) of the Constitution?

Freedom vested by s 32(2) assumes rights of others to be in peace, not to be injured, or killed. For example, life is protected by s 35 of the Constitution and s 36 of the Constitution prohibits torture. No individual is free to do whatever he likes, and Constitution s 32(1) acknowledges that by saying "Freedom based on law consists in the least amount of restriction on the activities of individuals". Whilst s 3, read alone, may look broad and threatening to one's livelihood, it must be read along with the definition of "terrorism" in s 2 and the heading of s 3, "Prevention of terrorism". All the activities in s 3(a) to (d), per se, do not constitute an offence under the Act, but when any of those activities is carried out knowingly and for the purpose of assisting those who are involved in terrorist activities, then it constitutes an offence. We consider that s 3 of the Act is designed to protect that very right that is freedom to live in peace, to carry on with our lives with minimum restrictions.

The penalty provided by s 3 is the maximum for the crime of terrorism. Terrorism is a crime of magnitude - it may involve thousands of people, poor and wealthy, it may involve injuring and killing a mass of people and destruction of properties. We consider, therefore, the penalty for the offence of terrorism is not disproportionate. The submissions overlook the wide range of punishment available, which gives wide discretion to the Courts. In our view, therefore, s 3 is not in breach of ss 32(2), 36(1) and 37(2) of the Constitution.

Our answer to question 3 is "No".

QUESTION 4

Are the provisions of s 3 and Part III of the Internal Security Act 1993 inconsistent with ss 46 and 47 of the Constitution?

The provisions of s 3 and the Part III must be read subject to ss 46 and 47 of the Constitution. Part III does not seek to restrict the everyday honest and genuine freedom of expression and freedom of assembly and association. The restriction can only be imposed where there is clear evidence of a well organised movement which may be linked to some outside organisation to destablize the unity and good government of the country. It is the duty of the State to immediately and administratively control the movement to prevent unnecessary encouragement and spread of such activities very early when it detects it. Freedom of expression and assembly becomes meaningless if others are allowed to arm themselves to obtain their objective through violent means.

The appeal provisions in s 5 do not attempt to oust any of the prerogative powers of the courts in s 155 of the Constitution, which an aggrieved party still has recourse to.

We consider that though there may be a chance of abuse of power immediately upon a declaration made under s 4, the risk is removed because, firstly, the Parliament is given power to consider and revoke the declaration, and, secondly, recourse to the courts is open to aggrieved parties to seek review. Also, the legality of such a declaration may become the first issue in every case brought before the Court, following the charges. Hence, the checks to the exercise of executive power are well in place.

Our answer to question 4 is "No".

QUESTION 5

Is s 6(4) of the Internal Security Act 1993 inconsistent with s 37(4)(a) of the Constitution and the constitutional separation of legislative, executive, and judicial powers?

Our answer to this is covered in our discussion of question 2, where we find that s 6(4) offends against the presumption of innocence in s 37(4). We answer "Yes".

QUESTION 6

Are the provisions of Part IV of the Internal Security Act 1993 inconsistent with ss 37(2), 37(3), 37(7), 37(11), and 37(15) of the Constitution and the constitutional separation of legislative, executive, and judicial powers?

The referrer argues that Part IV of the Act is unconstitutional because:

N2>1.       it denies the full protection of the law guaranteed to persons charged with offences, and

N2>2.       it confers judicial power on the National Executive Council and, thereby, breaches the constitutional separation of legislative, executive, and judicial powers.

FULL PROTECTION OF THE LAW

Section 37(2) Section 2 of the Act gives the definition of the offence of terrorism, and throughout the Act there are consequential offences. Section 3 lists what activities constitute offences. Section 6 provides for associating and assisting the groups involved in terrorism. Section 7 makes it an offence to promote terrorist groups. When, therefore, Part IV talks about offences and conviction for offences, it talks about the offences created and described in the provisions referred to.

Section 37(3) Where a Court deals with the question of exclusion orders under s 8(1)(a) of the Act, because there are adequate court rules on procedural fairness, we do not consider there is any risk of prejudice to an affected person. However, we do not think s 8(1)(b) contains adequate procedural protection for the affected person, especially when the NEC is empowered to make an exclusion order based upon its opinion that "a person is likely to commit an offence". We have already found, therefore, that s 8(1)(b) offends this guaranteed right.

Section 37(7) This issue is covered in the previous two paragraphs.

Section 37(15) When a court takes on the responsibility of deciding whether or not exclusion orders may be made, the appeal provisions of the District Court or National Courts acts are applicable. And as already said, the appeal procedure in s 9 is itself still subject to review under the Constitution s 155.

So, to summarise, when a court makes an exclusion order, the normal appeal system applies, and the normal enforcement system applies.

We say "No" to question 6.

QUESTION 7

Are the provisions of Parts IV, V, and VI of the Internal Security Act 1993 inconsistent with s 52 of the Constitution?

Once s 8(1)(b) is declared unconstitutional and excluded, then we are only looking at exclusion orders in relation to a person who has been convicted by a court of an offence, so we find no inconsistency in Part IV with the Constitution, s 52.

In relation to Part V, the NEC, when properly informed, simply declares certain area to be prohibited. Any movement in a declared area is restricted and not prohibited, except for the convicted. Persons in certain categories are exempted, and under s 18 of the Act any other persons may be granted permission to enter or leave the restricted area. Whether one is guilty or not upon entering the declared areas is left to a court, an independent authority, to decide. We find no difficulty here with Part V.

Under Part VI, a restriction is placed on an area with no allowance for an exemption, such as for persons who may be living there or who have gardens on land there or who have a good and reasonable reason to come and go. Section 21 creates offences for persons who may have honest or reasonable reason to come and go. This is not only going to affect potential terrorists but could lead to clear unjust deprivation of traditional homes and land. This is unreasonable, and we find s 21 is contrary to Constitution s 52. This would lead to s 20 being meaningless.

QUESTION 8

Are ss 22 and 25 of the Internal Security Act 1993 inconsistent with ss 42 and 244 of the Constitution?

Sections 22 and 25 are meant to enforce the aim of the Act, that is "to combat terrorism and terrorist activities". Initially, there does not seem to be anything offensive in the power to appoint examination officers and their powers to examine, arrest, and detain. However the power to arrest, examine, or detain does not contain the necessary checks and balances required by s 42 of the Constitution. The manner of the examination is left to an examiner and not, like in the ordinary law, to a policeman who is answerable to the courts. We consider, therefore, s 22 is inconsistent with s 42 of the Constitution.

Section 25(1)(a) is no more than the ordinary law. However, s 25(1)(b) is giving police powers to someone who is not a member of the State Services. We find this objectionable. We see no reason why the powers of arrest and detention should not be left where they belong under the Constitution, to the State Service, namely the Police Force, so referred to in the Constitution. Section 25(2), by providing such a long period to bring an accused before a court, goes against the presumption of reasonable time clearly stated in Constitution s 42 as "without delay". We find s 25(2) inconsistent with Constitution s 42.

Because of the above in relation to s 42, we do not need to consider s 244.

QUESTION 9

Is s 22 of the Internal Security Act 1993 inconsistent with ss 44 and 49 of the Constitution?

We have already declared s 22 objectionable in answer to Question 8.

QUESTION 10

Are ss 22, 23, and 24 of the Internal Security Act 1993 inconsistent with s 53 of the Constitution?

We have already declared s 22 to be objectionable. We find no objection to ss 23 and 24, as they are consequential on findings of guilt by a court.

To this question, we say "No" to ss 23 and 24.

QUESTION 11

Is the effect of any or all of the above provisions of the Constitution that the Internal Security Act 1993 is invalid and ineffective in its entirety?

In the opening, we said respect must be granted to the Parliament because it has its duty to pass laws for good government and to maintain an ordered society. No doubt some parts of the legislation that the Parliament passes are more vital than others. Others may remain valid and constitutional though they cannot operate on their own. There are some sections of the Act that are valid and could stand on their own.

We say the Act is invalid and ineffective only to the extent that the following provisions have been found to be in breach of the Constitution. These are ss 6(4), 8(1)(b), 21, 22, 25(1)(b), and 25(2).

The rest of the parts and sections are valid.

KAPI DCJ:  The Internal Security Act 1993 (the Act) was passed by the National Parliament on 5 May 1993. This Act has been given very wide attention by the public. Consequently, the Ombudsman Commission made a s 19 reference to this Court to determine certain constitutional issues raised by the Act. The questions have been listed in the majority judgment.

QUESTION

Counsel for the Referrer argued that the purposes for which the Act was enacted comes within the Emergency Powers set out under Part X of the Constitution. He argued that the Act, in substance, is an Emergency Act within the meaning of Part X of the Constitution, and it does not comply with the requirements of Part X of the Constitution.

The Acting Solicitor General, arguing the negative case on behalf of the Attorney General, with respect, did not fully answer the issues raised by counsel for the referrer. He simply submitted as follows:

"The Act does not express itself to be an Emergency Law or Regulation. That in our submission is sufficient."

In essence, his submission was that the Act does not come within the terms of Part X of the Constitution simply because it does not express itself as an Emergency Act (see s 230(2) of the Constitution).

The National Parliament has unlimited powers of law-making. However, this power is subject to other provisions of the Constitution (s 99(2)(a)). Where there is a national emergency, the Constitution Part X regulates the manner in which the Parliament may exercise its law-making power.

It is necessary to interpret Part X of the Constitution and investigate the circumstances to which it applies.

The first point to be made is this: the peace, order, and good government and the welfare of the people are governed by laws. The institution which has the ultimate power to make these laws is the National Parliament (s 109(1) of the Constitution). As far as criminal behaviour is concerned, it is regulated by written laws passed by the National Parliament (see Criminal Code, etc). These laws prescribe an offence and the punishment for such offence (s 37(2) of the Constitution). The rights of persons generally, and especially those who are accused, are also set out in legislation passed by the National Parliament and by the Constitution (see Part III Div 3). If these laws are inadequate, then the primary duty is on the National Parliament to make such laws to address those issues. This may include qualifying rights and freedoms under Part III, Div 3, Subdiv C of the Constitution. The Constitution requires that, for certain rights, any law which qualifies a right must comply with s 38 of the Constitution. These laws can be described as regulating activities during "normal times".

On the other hand, the Constitution distinguishes circumstances or events which require special laws (see the exception under s 40 of the Constitution). The Constitution sets out clearly what these circumstances are in Part X and regulates the manner in which the National Parliament may legislate for these circumstances. The constitutional framers could have left these circumstances to the unlimited powers of law-making of the Parliament under s 99 of the Constitution. In which case, the Parliament would have been free to legislate on these matters as it saw fit, subject, of course to other provisions such as s 38.

This leads me to consider the second matter. What are the remaining features of Part X of the Constitution? Part X sets out the circumstances, the content of laws the National Parliament may pass for the circumstances and for the control of persons and, in particular, the derogation of fundamental rights during these circumstances. The National Parliament is required to comply with these provisions. Let me consider these matters in more detail.

What are these circumstances? Part X was clearly intended to cover an "emergency". This term is defined by s 226 as follows:

" 'emergency' includes, without limiting the generality of the expression:

(a)      imminent danger of war between Papua New Guinea and another country, or of warlike operations threatening national security; and

(b)      an earthquake, volcanic eruption, storm, tempest, flood, fire, or outbreak of pestilence or infectious disease, or any other natural calamity whether similar to any such occurrence or not on such an extensive scale as to be likely to endanger the public safety or to deprive the community or any substantial proportion of the community of supplies or services essential to life; and

(c)      action taken, or immediately threatened, by any person that is of such a nature, and on so extensive a scale, as to 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."

The circumstances set out in this definition are of a special nature. The nature of these circumstances are indicated in chapter 5 of the CPC Final Report:

"Emergency Situations

N2>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.

N2>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.

N2>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.

N2>4.       We have given very careful thought to the question of what powers should be exercised by 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."

These are circumstances which may pose great danger to the national security of the nation, danger to lives of government officials and the general public. It is clear these circumstances are quite different from the "normal times". Part X of the Constitution gives the government of the day the means to act decisively to cope with the situation. The Constitution has divided these circumstances into three categories. I will return to these circumstances later on in my judgment.

HUMAN RIGHTS

Part X, Div 3 specifically deals with the contents of emergency laws and what they can and cannot do. These provisions lay down the limits of law-making with regard to human rights. These provisions give the government of the day the power to qualify or take away some rights for the protection of the public, but also protect other human rights. This is yet another indication by the Constitution of the importance of the place and the status of human rights in this country. It has been said before, and I will say it again, that this Court is given the role to protect these rights, and it will vigorously and zealously guard these rights according to law. Any breach of these provisions by any legislation will be struck down by this Court.

The following are the relevant requirements under Part X for the purposes of question 1:

N2>1.       An emergency law must be "to the extent reasonably required" (s 233(1)) or "reasonably necessary to deal with the emergency concerned" (s 233(2)),

N2>2.       but only as far as is "reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind (s 233(2))". Both requirements adopt the same test as in s 38 of the Constitution.

N2>3.       Section 233(3) directs that an emergency law must not alter:

(a)      right to life under s 35,

(b)      freedom from inhuman treatment under s36, or

(c)      freedom of conscience, thought, and religion under s 45.

An emergency law means an Emergency Act made in accordance with s 230 and an Emergency Regulation made in accordance with s 231.

N2>4.       Section 233(4) directs that an Emergency Regulation may not alter:

(a)      freedom of expression under s 46,

(b)      freedom of assembly and association under s 47,

(c)      right to privacy under s 49,

(d)      right to freedom of information under s 51, and

(e)      may not provide for a sentence of imprisonment for a period exceeding nine months.

These provisions indicate the limits of what the Parliament and the Head of State, acting on advice, can do in relation to human rights. It is to be assumed that rights which are not included in these prohibitions may be altered by the Parliament or the Head of State under s 230 or s 231, as the case may be.

Part X Div 4 deals with supervision and control by the National Parliament. There is very close scrutiny by the Parliament of the progress of the emergency concerned. No such provision is made for similar scrutiny for operation of laws in normal times.

This division also provides for Emergency Committees (a Minister is not allowed to be member), which operate as watch dogs to ensure that operation of emergency laws is justified and whether a national emergency should be continued.

Part X Div 5 is important. This deals with internment. That is detention without trial. Internment is only allowed to take effect after a national emergency is declared and to continue only during the emergency period (see ss 233(3)(b) and 244(2) of the Constitution). Section 245 sets out an elaborate scheme for dealing with internship and rights of an internee. Internment is not allowed in any other circumstance. The Constitution is adamant that even when a person is detained for an offence he must be brought before a court without delay. The necessity or desirability of interrogation is not a ground for detention (see s 42(3)(4) of the Constitution).

It is clear from this brief survey that Part X enables the executive government of the day to act decisively and quickly. The National Executive Council may advise the Head of the State to declare a national emergency (s 228). The National Executive Council may make Emergency Regulations to deal with the emergency before the Parliament meets to consider the emergency (s 231). Emergency Acts that may be passed by the Parliament are ordinary Acts of the Parliament. There is no requirement to pass such an Act with an absolute majority. However, absolute majority is required if the operation of an Emergency Act is extended after the end of the period of national emergency is declared (s 238).

These provisions are clearly intended to effectively suspend for a period certain human rights provisions without much difficulty in the interest of dealing with the national emergency. This is to be contrasted with any qualification of a right under s 38(2)(c), which requires an absolute majority.

It would be in the interest of the executive government of the day to use the provisions of Part X of the Constitution to deal with an emergency such as terrorism.

Under Part X, Emergency Acts may be passed to come into force after a declaration of national emergency by the Head of State, acting in accordance with the advice of the National Executive Council (s 228). Emergency laws are enacted to last only until the emergency ends (s 237). The significance of this is that they are of a temporary nature, unlike other laws which regulate "normal circumstances".

It is common ground in this reference that no such declaration has been made by the Head of State. The threshold question to be determined is whether the circumstances for which the Act was passed come within the meaning of "emergency" under Part X of the Constitution. If it does, the Act is invalid for breach of Part X of the Constitution, in that the Act has been passed without there being any declaration of a national emergency in accordance with s 228 of the Constitution.

The relevant definition of "emergency" for consideration is "... action taken, or immediately threatened, by any person that is 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 proportion of the community of supplies or services essential to life." The question is this; does the definition of "terrorism" and "terrorist activities" under the Act come within the word "emergency" and other provisions of Part X of the Constitution?

PURPOSES OF THE ACT

For the purposes of determining this issue, it is necessary to determine the purposes for which the Act was passed. The Act has the following preamble:

"... for maintaining the internal security of Papua New Guinea by providing measures to combat terrorism and terrorist activities..."

The key to understanding the purposes of the Act is to be found in the definition of the word "terrorism" in s 2 of the Act, as follows:

" 'terrorism' means the use of violence for political ends or any use of violence for the purpose of putting the public or any section of the public in fear."

The Act was intended to deal with "terrorism" and "terrorist activities", and for related purposes. The central offence around which all the other provisions are built is the offence of terrorism in s 3 of the Act. It is as follows:

N2>"3.      Prevention of terrorism

A person who:

(a)      manufactures, imports, stockpiles, buys, sells, leases, gives or uses arms or equipment for the purposes of; or

(b)      practises, encourages, supports or advocates; or

(c)      is knowingly concerned in the arrangements for securing the entry into the country.... of a person whom he knows or has reasonable grounds for believing is likely to engage in; or

(d)      knowingly harbours a person whom he knows or has reasonable grounds for believing is or has been engaged in, terrorism, is guilty of an offence.

Penalty: A fine not exceeding K100,000 or imprisonment for a term not exceeding 14 years, or both."

The nature of violence which may be used for political ends or for putting people in fear can be understood from this provision. What this provision prohibits is the use of "arms" for political ends or for purpose of putting the public, or a section of the public, in fear. This word is defined to include firearm, bomb, machine gun, offensive weapon, and an explosive (see definition of "arms" in s 2 of the Act). This is important in understanding the nature of "terrorism" and "terrorist activities" under the Act and the purpose and the intention of Part X of the Constitution.

Part III of the Act deals with proscribed organisations. The proscription of an organisation, of itself, does not amount to an offence. What has been prescribed as an offence is if a person belongs or professes to belong; aids, assists, or supports; solicits or invites aid, assistance, or support; arranges or assists a meeting of three or more persons for the purpose of supporting the proscribed organisation (s 6) or wears in a public place any item of dress or displays any article of the organisation (s 7).

Under Part IV of the Act, provision is made for exclusion orders and removal of persons from prohibited areas.

Part V of the Act deals with a declaration that an area is a prohibited area. Once again, it is connected with terrorism as defined by the Act.

Part VI of the Act deals with declaration of a restricted area where declaration of a prohibited area is not warranted under Part V.

Under Part VII of the Act, extensive powers are given to the police and examination officers to arrest and detain people. In essence, this part of the Act allows for internment of persons of up to five days without being brought before a court of law. Such provision can only be made by an Emergency Act (see s 233(3)(b) of the Constitution). This is clearly invalid.

Part II of the Act contains only one section. The nature of this part is different, and I will deal with this separately later on in my judgment.

Parts III, IV, V, VI, and VII of the Act are inter-related in their nature and character. They deal with a situation which is out of hand (an emergency) and that needs to be contained. They suppress any organisation involved in terrorism, control of movement of people, and detention of people. The measures are draconian by nature. This is simply a reflection of the nature of "terrorism" and "terrorist activities" which would bring about a "very serious civil disturbance such as organised attacks on many government officers", as envisaged by the CPC. These are circumstances which are envisaged by Part X of the Constitution. This is further support for the argument that the purposes of the Act come within the terms of Part X of the Constitution.

An examination of the Act reveals that it is concerned with circumstances that are serious and would pose a great danger to the public. The essence of "terrorism" is the use of "arms" as defined by the Act. Having regard to these arms and explosives which may be used for political ends or for putting the public in fear, I cannot but conclude that such violence would endanger the public safety or such violence would be used to deprive the community of supplies or services, such as destroying airports or bridges. A very good illustration of this is the civil unrest in Bougainville. That situation would qualify for a national emergency. Later, I will refer to the steps taken by the National Parliament in relation to "terrorist activities" in Bougainville. "Terrorism" or "terrorist activities" under the Act, by their nature, come within the definition of "emergency" as defined by Part X of the Constitution. The Act, in its substance, is dealing with an "emergency" within the meaning of Part X of the Constitution. I have no hesitation in coming to the conclusion that this is what the constitutional framers intended. The CPC Final Report indicated clearly that it had in mind "terrorism" as one of the circumstances to be covered by Part X. In chapter 5 of its report, the CPC said:

"Right to a fair trial

N2>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.

N2>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 preventative 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 guerilla activity or civil war. We have therefore made no recommendation empowering the Government to exercise powers of preventive detention."

Further, I am of the opinion that "terrorist activities" of a nature set out under the Act envisages use of arms, which may be used against Government officials and property which would threaten the national security of the nation. This would come within the words "warlike operations threatening national security". Terrorist activities which involves use of guns, explosives, and bombs against people or for blowing up bridges and the like would be likened to a warlike operation. Once again, this can be illustrated by reference to the Bougainville crisis. The BRA has used arms for political ends, and it has used guerilla warfare tactics and warlike operations against the security forces. There can be no doubt in my mind that these operations are warlike operations threatening the national security of our nation. Such circumstances would come within the provisions of Part X of the Constitution.

I agree with counsel for the referrer that the purposes for which the Act was enacted comes within the Emergency Powers under Part X of the Constitution. It follows that the Act must comply with requirements of Part X. As I have pointed out earlier, an Emergency Law may only be passed to come into force during the declaration of an emergency by the Head of State pursuant s 228 of the Constitution.

The Constitution provides the framework for the exercise of powers by the National Parliament. In particular, it lays down the requirements for dealing with circumstances set out under the Internal Security Act. I fail to find any provision under Part X, or any other provision of the Constitution, which authorizes the Parliament to deal with such a national emergency in a manner different to the powers given under Part X of the Constitution. The Internal Security Act, in nature, is an attempt by the Parliament to set up a scheme for dealing with terrorism in a manner different to Part X of the Constitution. Indeed, it is an attempt by the National Parliament to set up an alternative and a different scheme for dealing with an emergency, namely terrorism. Its operation and effect is inconsistent with Part X of the Constitution and is, therefore, invalid.

It is true that s 38 of the Constitution deals with qualification of human rights. However, this is a general provision setting out a criteria for qualifying a right under Part III of the Constitution. This is a general provision and does not address matters relating to an emergency. This part does not deal with matters like internment. This is specifically dealt with under Part X of the Constitution. The Constitution did not intend that matters of emergency should be dealt with under Part III of the Constitution, and this can be clearly inferred from s 40 of the Constitution. I have reached the conclusion that where there is a need to qualify a right in circumstances that do not come within the definition of "emergency", a law may be passed to deal with the situation under s 38 of the Constitution. Such a law needs to comply with the strict requirements under s 38. Such requirements are not an appropriate way of dealing with an emergency. Emergency situations are more effectively dealt with under Part X of the Constitution. Section 40 clearly acknowledges and implies this intention.

The Acting Solicitor-General argued that what the Internal Security Act deals with is a moderate type of "emergency", and if such emergency gets worse, then the National Executive may invoke the provisions of Part X of the Constitution. First, this submission is based on a false premise, namely that there are varying degrees of "terrorism". No such intention can be found in the Act itself. The Act does not deal with graduating degrees of "terrorism". The Act simply indicates the nature of violence connected with terrorism. Section 3 prohibits the use of arms and equipment for political ends or for purposes of putting the public in fear. This argument has been accepted by the majority. I have had the opportunity of reading the draft judgment of the majority, in which they minimize the nature of "terrorism" and "terrorism activities" under the Act to a:

"situation of far less a serious or widespread nature than those envisaged in Part X. Terrorism could be done or inflicted by just a handful of persons and committed or threatened in small pockets or areas."

With respect, this view displays a lack of appreciation of the true nature of "terrorism" and "terrorism activities" under the Act. True nature of "terrorism" is not determined by the number of people that may inflict terrorism. It is determined by the nature of violence that is used for political ends or for the purpose of putting the public or any section of the public in fear. The Act deals with violence that is perpetrated with use of "arms". As I have already pointed out, this involves use of firearms, bombs, machine guns, offensive weapons, and explosives.

In addition, use of violence for political ends necessarily involves the public, and not just individuals in isolation. As far as using violence to create fear is concerned, it is directed at the "public or any section of the public." The Act is not dealing with isolated incidents of shooting of individual politicians, like the fatal shooting of the late Malipu Balakau in the Western Highlands, whose killing was said to have been politically motivated. Such isolated acts of "terrorism" can be adequately dealt with under the Criminal Code and other laws.

With respect, I cannot agree with the analysis of the Internal Security Act by the majority, that it is dealing with violence of a far less serious and widespread nature. I cannot see how use of "arms", as defined under the Act, can be said to be "far less serious". The type of violence envisaged is directed at the public or sections of the public. Part III of the Act is aimed at preventing or reducing the public support for "terrorism". Part IV of the Act is also aimed at removing people who have connections with "terrorism". Parts V and VI of the Act is aimed at controlling terrorism in public or sections of the public. These provisions can hardly be described as dealing with terrorism of a less serious nature. To put the matter differently, why include provisions of a draconian nature for dealing with terrorism which is far less serious. The provisions in the Act are far more repressive than those under Part X of the Constitution.

Second, the submission by the Acting Solicitor-General concedes that "terrorism" comes within the meaning of "emergency which could bring the terrorist activities under the Act within the ambit of Part X of the Constitution." With respect, the majority opinion fails to deal with the effect of this.

I have reached the conclusion that Part X of the Constitution strikes a balance between the interest of the public in effectively dealing with an emergency on the one hand, and, on the other hand, effectively protecting individual rights of citizens. A law passed under s 38 of the Constitution has to comply with strict requirements, and it is not an effective way of dealing with an emergency.

The Internal Security Act, which does not comply with Part X of the Constitution in the manner I have described, is an attempt to introduce a new and an alternative way of dealing with an emergency which leaves open the possibility of abuse of human rights by the executive government of the day. Such abuse is not open under Part X of the Constitution. I am not prepared to adopt an interpretation which would render human rights in this country to be abused in this way.

NEED FOR DECLARATION OF EMERGENCY

What then is the effect of this? It is clear that there cannot be an Emergency Act without a declaration of an emergency. For the purposes of Question 1, the Act is to be read as a whole. The whole Act is concerned with "terrorism" and "terrorist activities". It cannot stand against Part X of the Constitution. Once the decision is reached that "terrorism" comes within the meaning of "emergency" under Part X of the Constitution, the whole Act is to be measured against the provisions of Part X. The whole Act cannot survive as the requirement under s 228 simply has not been complied with. That, in essence, is a condition precedent before any Act of this nature can be enacted. The whole Act is invalid.

There is one exception to this. Part II of the Act contains one section, and it simply prescribes offences and the penalty for the offences. This complies with s 37(2) of the Constitution. There is nothing wrong with this. It simply prohibits terrorism and terrorist activities. It is within the powers of the Parliament to prescribe an offence and punishment for the offence. If the Internal Security Act is passed as an emergency law, as the Parliament is entitled to do under Part X of the Constitution, such a law may provide for sentence of imprisonment for a period exceeding nine months. Section 233(4) of the Constitution prohibits an Emergency Regulation from providing for this, but not an Emergency Act (see s 233(3)). In view of the fact that the whole Act is invalid for non-compliance with s 228 of the Constitution, it does not look tidy to leave this section standing on its own.

Before I leave Question 1, I need to point out that there are important issues relating to the validity of the Internal Security Act that need to be considered. It is clear that the Act qualifies human rights given by the Constitution, whether these qualifications are justified under s 38 or Part X of the Constitution, in either case, the Parliament needs to satisfy the requirements that:

N2>1.       the qualifications are "necessary" (s 38(1)(a)) or "reasonably required" (s 233(1)) or "reasonably necessary" (s 233(2)), and

N2>2.       that the law is reasonably justifiable in a democratic society (ss 38(1) and s 233(2)).

None of the questions referred raise these issues specifically. In relation to the issue of whether the qualifications under the Internal Security Act are necessary, I should point out that the only "terrorist activity" we all know is in Bougainville. There can be no doubt that violence involving "arms" has been used for political ends. In this regard, the Head of State made a declaration of national emergency with effect from 26 June 1989 (see National Gazette No G41 dated 23 June 1989). This was a declaration pursuant to s 228(1) of the Constitution. In accordance with s 230 of the Constitution, the National Parliament passed Emergency (Bougainville) (General Powers) Act 1989 (No 5 of 1989). The Head of State also made Emergency (Bougainville) (General Powers) Act 1989, in accordance with s 231 of the Constitution. With respect, the Parliament properly treated "terrorism" in Bougainville as a national emergency and rightly dealt with the matter under Part X of the Constitution. This is entirely in accordance with the view I have adopted in Question 1. The Internal Security Act is not expressed to deal with the emergency in Bougainville. It is entirely a new scheme which is, in nature and effect, different to Part X of the Constitution. I have already held that it is inconsistent with the provisions of Part X of the Constitution and, therefore, invalid.

The point I wish to make here is that in view of the fact that there is already in existence a declaration of emergency and acts and regulations for "terrorism" in Bougainville, is it necessary to pass the Internal Security Act? This question can hardly attract a positive answer.

Is there any other "terrorist activity" in any other part of the country? There is no other "terrorist activity" in this country. The onus is on the government to satisfy the requirement that it is necessary to qualify the rights (s 38(3) of the Constitution). These are issues which have not been raised but, in my view, they are important to the validity of Internal Security Act.

If any of the powers set out under the Internal Security Act are desirable for purposes of dealing with "terrorism" in Bougainville, as long as the declaration of emergency is still in force in Bougainville, the Parliament may amend the Emergency Laws applicable to Bougainville. If there is "terrorism" in another part of the country, then it is necessary to comply with s 228(1) of the Constitution before any Emergency Laws may come into operation.

QUESTION 2 - 9

The remaining questions referred relate to application of Part III, Division 3 of the Constitution dealing with Basic Rights to the provision of the Act.

However, in view of the fact that I have reached the conclusion that the Internal Security Act by its nature, deals with an emergency, its provisions must comply with Part X of the Constitution. As I have pointed out in Question 1, the Act must comply with 228 of the Constitution. All the other provisions of the Act must measure up to the requirements under Part X of the Constitution. The Basic Rights provisions under Part III of the Constitution are not applicable. Section 40 is clear:

"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."

Questions 2 - 9 have not been referred to in the context of Part X of the Constitution. The only exception to this is Question 8, which makes reference to s 244 of the Constitution. In so far as the Act in its present form is an ordinary Act of Parliament, as opposed to an emergency law under Part X of the Constitution, provisions relating to internment are invalid and inconsistent with s 244 of the Constitution.

The end result of my reasoning is this: The whole of the Act is invalid for reasons I have given in Question 1. If in the event that the Parliament complies with s 228 of the Constitution in the future, then the question of whether the provisions of the Act comply with other provisions of Part X of the Constitution will arise. Questions 2 - 9 in their present form raise application of Basic Rights under Part III Div 3 of the Constitution. These provisions are not applicable to emergency laws under Part X of the Constitution (see s 40). I will not answer these questions with the exception of Question 8.

My answer to the Questions are as follows:

Question 1 - Affirmative

2-7 - Not necessary to answer

8 - Affirmative

9 - Not necessary to answer

10 - Affirmative

Lawyer for the referrer: Ombudsman Commission.

Lawyer for the State: Solicitor General.