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From 2001 to 2007, and again since 2012, people seeking asylum in Australia have been taken to the Manus Regional Processing Centre in Papua New Guinea (PNG) and held there. On 26 April 2016, the Supreme Court of Papua New Guinea found that a constitutional amendment made to permit such detentions violates the PNG constitution. The amendment had permitted "holding a foreign national under arrangements made by Papua New Guinea with another country"; the court said the provision was at odds with the guarantee of "the right to personal liberty" elsewhere in the constitution.
A lawyer representing over 900 "current and former" detainees said he would file on 2 May a request for A$125,000 per person and would be "seeking to enforce the judgment against the Commonwealth of Australia."
coverage:
- BBC News on the ruling
- ABC on the ruling
- ABC Pacific Beat (audio)
- ABC on the lawsuit
- Radio New Zealand
- Neos Kosmos
- stuff.co.nz editorial
- Daily Mail
- AAP via The Daily Telegraph
(Score: 1, Insightful) by Anonymous Coward on Tuesday May 03 2016, @02:45AM
> Nope. Order determines.
Why do you think that the structure and precedence of the US constitution defines the constitution of Papua New Guinea?
The world is not defined by America.
(Score: 1, Troll) by jmorris on Tuesday May 03 2016, @03:05AM
Reading is fundamental. I used ours as an example, even said that, try reading. The legal concept is pretty much universal since everybody with a written constitution with a formal amendment process is usually copied from the U.S. original example anyway. A Constitution is, by definition, at the apex of the chain so it must never be read in a way as to be contradictory as there is no authority beyond it to appeal other than accepting chaos until the amendment process could work and that usually takes years. It is a fairly recent innovation for judges to make a play to elevate themselves above constitutions and become an appeal beyond the law itself, in effect an ultimate legislature and in some examples to directly exercise the sovereign power itself.
(Score: 0) by Anonymous Coward on Tuesday May 03 2016, @04:07AM
> Reading is fundamental. I used ours as an example, even said that, try reading.
Indeed it is you simpleton, you should take your own advice. I was talking about the part I quoted, specifically the unsupported declaration about a constitution you have never read in a country you could not hope to find on a map without labels.
> The legal concept is pretty much universal
No matter how hard you wish it to be universal, it isn't. Your logic, your examples and your objections are just yankee arrogance based in ignorance of the rest of the world.
What's going on here is that you know jack shit about PNG, but you insist on projecting all your american anxieties on to the country and this story. Surely they have no idea how their own government works, but you are an expert! They are fools and you are wise.
(Score: 2) by dry on Tuesday May 03 2016, @04:54AM
That's not true. Lots of countries have different constitutional setups then the States. Canada's constitution is split between a dozen or so documents and includes some unwritten clauses that the courts will enforce. Some parts can be amended by the Federal Parliament on its own, some between one Province and the Federal Parliament such as the recent amendment renaming Newfoundland, many use the 7/50 rule (7 of 10 Provinces containing 50% of the population) and some take all the Provinces agreeing (fundamental changes to the system of government). Would it be legal for the Federal Government to override the Magna Carta and get rid of Habeus Corpus? I'm pretty sure the Supreme Court would say no as it is a basic right inferred in the Charter of Rights.
It sounds like Papua New Guinea can amend its Constitution by simple Parliamentary majority, which is a path to tyranny and having the courts as a check on that sounds like a good idea and may be in the original Constitution.
(Score: 2) by jmorris on Tuesday May 03 2016, @05:23AM
It sounds like Papua New Guinea can amend its Constitution by simple Parliamentary majority, which is a path to tyranny and having the courts as a check on that sounds like a good idea and may be in the original Constitution.
That would be even lamer that a lot of U.S. States (like mine) that make it too easy to amend, but doesn't change the fact that the sovereign power has to, in theory, reside somewhere. We don't do divine right monarchy anymore, even in the British Empire the monarch is a tourist attraction with no real power, so it generally resides in the written constitution as a stand in for the expressed will of The People who political theory now holds as the ultimate receptacle of the Sovereign Power. Even when a constitution is poorly drafted and poorly designed. If one is Dark Enlightened you too see problems with this theory of government, but it is the system of government we are all supposed to have in the West. All tracing a line of descent from the Magna Carta, the Rights of Englishmen, British Common Law, and most also borrowing heavily from the U.S. Constitution since those guys were on a roll and had a lot of really good ideas and everybody cut/pasted liberally.
Courts act as a check against the Legislative and Executive power, as those others are supposed to, but fail to in most Western countries currently, act as a check on an out of control Judiciary. In the U.S. the States were also supposed to factor into the checks but have currently been effectively eliminated from consideration. With a cumbersome (as you note, not cumbersome enough in some places) the constitution can be amended by some or all of the other branches. But none of them alone are empowered to act as a check on the constitution itself, if you accept that as a legal theory you have accepted that entity as the new receptacle of the Sovereign power. There is simply no other way to reason it out.
Think about it. The Courts have been placed as a check on the Constitution as you propose, by Amendment. So now they can add/delete at will from the Constitution because who checks them? Who says they have exceeded their new authority? You just wrote in that the Constitution doesn't anymore, while the other branches are still limited by what the constitution, now plastic in the hands of the court, says. The people can no longer act, unless the courts say the constitution permits their action. Extralegal power is the only solution to a mistake of that level. The executive orders them shot and if the order is carried out the power is now there, maybe he/she simply leads a process of amendment to fix the problem, maybe he puts on a crown. Maybe a mob just strings people up on lampposts and who knows what happens next. Dangerous any way you look at it.
(Score: 2) by dry on Tuesday May 03 2016, @06:10AM
Figured I'd look at their Constitution. Seems that the judiciary is involved in amending their Constitution,
Now the whole thing is quite complicated and I'm not a lawyer, though I do note that a PHG lawyer did comment (https://soylentnews.org/comments.pl?sid=13388&cid=340529#commentwrap), but from my reading this is constitutional.
https://en.wikisource.org/wiki/Constitution_of_the_Independent_State_of_Papua_New_Guinea/Part_II [wikisource.org]
(Score: 0) by Anonymous Coward on Tuesday May 03 2016, @03:05PM
What fantasy are you imagining where the courts are adding things to the constitution by themselves? Certainly not in this case.
You seem to think having the courts check if a new law is unconstitutional is somehow a bad thing, are you sane? Do you think the parliament or senate or other legislature should be allowed to willy nilly change the constitution, and be the exact supreme authority you are raving about instead?
(Score: 2) by c0lo on Tuesday May 03 2016, @05:59AM
No, it's not [wikisource.org].
First: their constitution can be affected by Constitutional laws that are laws on their own (therefore, not being integral part of the constitution, they actually can end be declared as unconstitutional).
Second, in depending the part of their Constitution that is targeted, the majority needed may be 2/3 or 3/4 or just absolute majority (search on the linked for 17. "Prescribed majority of votes".)
https://www.youtube.com/watch?v=aoFiw2jMy-0 https://soylentnews.org/~MichaelDavidCrawford
(Score: 5, Informative) by c0lo on Tuesday May 03 2016, @05:43AM
This is coming from someone who openly admits [soylentnews.org] "I haven't went and read their Constitution"... but is quick to make damning judgements about them.
If reading is so dear to you, you have the PNG's Constitution here [wikisource.org]
(American exceptionalism... heavy burden to bear).
Letting aside Magna carta, letting aside early (1710) modern constitutions [wikipedia.org] (failed because the state failed under invasion), all the ideas of the modern constitutions (USA included) spawned from the Age of Enlightement [wikipedia.org] in an interval of mostly 30 years [wikipedia.org] (60 years including late comers - like Canada) - well before USA abolished slavery (democracy and slavery together... doesn't sound that modern to me, the ancient Greeks tried it first millennia before)
I find hard to believe everybody was in awe and rushed to copy the American constitutional model; more likely they were busy designing their own... in an age when the Internet just wasn't.
Horror of the horrors... the reality is quite different. (and if you think that all it's required to get into contact with it is to read)
Since 1975, PNG is a monarchy, with the monarch of Queen Elizabeth II as head of state, represented by a Governor-General. It goes with the Westminster system [wikipedia.org]. It's also not a federation (thus no "state votes" to modify the constitution) and their "constitutional amendments" are actually... separate Constitutional laws [wikisource.org] (not integral part of the Constitution).
Therefore... yes... a PNG Constitutional Law can actually be declared as unconstitutional by a judge!!!
---
Even more horrifying... there are:
* countries in which amendments to the constitution are subject to a referendum (Switzerland [geschichte-schweiz.ch] and Ireland [wikipedia.org]),
* countries in which not only the amendments don't have any particular difference from another law (except being a Constitutional law) but international treaties can end as part of constitution [wikipedia.org] (Austria).
Now, just imagine... suppose that such a treaty is suddenly broken (for whatever reason, say... the other parties decided to renege it)... lo and behold, a modification to your constitution which goes in without voting!!!
* countries in which both the King/government and the legislative need to agree on the amendment [wikipedia.org] (Belgium),
* countries in which an amendment must be approved twice by two consecutively elected legislatures [wikipedia.org] (Denmark)
A weird world outside US, eh? You only need to get your head out of your ass.