When it attained Independence on 16 September 1975 Papua New Guinea adopted its own written constitution.1 Contained in the Constitution are guarantees of certain basic rights and freedoms such as the freedom of expression and the right to privacy.2 The great majority of these rights and freedoms are qualified in that they may be regulated or restricted by the leglslature.3 The Constitution Itself provides the means for their enforcement in the superior courts, namely the National Court of Justice and the final court of appeal the Supreme Court of Justice.4
Although the Constitution of Papua New Guinea is often referred to as 'homegrown'5 its provisions, particularly those dealing with human rights and freedoms, are similar to those which may be found in the constitutions of many other newly independent countries. As the Privy Council has observed there is a family of constitutions ... which embody a Bill of Rights or Charter of Fundamental Rights and Freedoms drafted on the model of the European Convention on Human Rights’.6 The family Includes the constitutions of Nigeria, Trinidad and Tobago, Cyprus, Bermuda and many other nations which were formally British dependencies.7
If the Constitution of Papua New Guinea is not a member of the family it is no less than a first cousin. It follows what the Privy Council has called the ''Westminster model''8 in its relative sophistication and inclusion of entrenched fundamental rights and freedoms.9 But despite the resemblance to the constitutions of so many other new nations the tendency of the Papua New Guinea courts, at least in more recent cases, has been to interpret the Constitution of Papua New Guinea with little or no reference to foreign decisions.10
The purpose of this paper is to examine various aspects of constitutional rights and freedoms in Papua New Guinea. First it is intended to look broadly at the qualified rights and freedoms protected by the Constitution of Papua New Guinea and to examine the cases in which the courts have been required to adjudicate upon the legislature's attempts to regulate or restrict those rights or freedoms. In the course of examining the Papua New Guinea cases reference will be made to comparable decisions from other jurisdictions.
Secondly it is intended to examine two major aspects of the Constitution which, nearly fifteen years after Independence, are still to be resolved by the courts. One is the relationship between the rights and freedoms guaranteed under the Constitution and Papua New Guinea’s body of pre-Independence legislation. The other issue is section 41 which is a provision unique to the Papua New Guinea Constitution and purports to give the courts the power in certain circumstances to declare any act 'done under a valid law’ unlawful.
Thirdly it is intended to look at how constitutional rights and freedoms may be enforced in the Papua New Guinea courts. This involves an examination of the more important cases in which the courts have explored the relationship between the rights provisions and the enforcement provisions of the Constitution.