The most internationally reported Papua New Guinean judgment of the last decade is, at its core, a case about how the Constitution may be amended and what happens when the procedure is not followed.
Belden Norman Namah MP, Leader of the Opposition v Hon Rimbink Pato, Minister for Foreign Affairs and Immigration, National Executive Council and the State [2016] PGSC 13; SC1497
Supreme Court, Waigani — Salika DCJ, Kandakasi, Kariko, Sawong and Higgins JJ, 26 April 2016. SCA 84 of 2013, an application under section 18(1) of the Constitution.
What happened
Under administrative arrangements between Papua New Guinea and Australia, asylum seekers who had sought to reach Australia by sea were transferred to the Manus Island Regional Processing Centre and held there while their claims were processed. They had not chosen to come to Papua New Guinea. To accommodate the arrangement, Parliament amended section 42 of the Constitution to add a new exception permitting the detention of a foreign national under arrangements with another country. The Leader of the Opposition applied to the Supreme Court for declarations that the detention was unconstitutional.
What was argued
The applicant argued that the transferees were deprived of liberty contrary to section 42, that the new exception was a law restricting a qualified right which had to comply with the strict requirements of section 38, and that it did not. The State argued that the amendment validly created a new exception, that the transferees were unlawfully in the country under the Migration Act, and that the facts were in dispute and required a trial.
What the Court decided
Facts. The Court had directed the parties to settle a statement of facts. The respondents failed to comply or to seek more time, then objected. The objection was overruled: the facts in the applicant’s statement stood admitted or uncontested, and no trial was needed. Trials of constitutional applications are reserved for genuine disputes.
Section 42. The transferees were brought into Papua New Guinea forcibly and held against their will. That was a deprivation of the liberty guaranteed to all persons by section 42, and none of the existing exceptions applied. Having been brought in by the State, they were not persons who had entered or remained without a permit for the purposes of the Migration Act.
Section 38. An amendment that restricts a right must meet the qualifications and requirements of section 38, including a statement of the purpose and a justification in a democratic society. The amendment failed those requirements and was invalid.
Orders. The detention was declared contrary to section 42 and beyond the powers available under the Migration Act. Both governments were ordered to take all necessary steps to cease and prevent the continued unconstitutional detention and the continued breach of the transferees’ rights. Costs followed the event.
Did it make new law?
This was an original application under section 18(1), not an appeal, so no National Court decision was involved. The Court applied existing principles on section 38 and section 42, but the case is the leading modern illustration that a constitutional amendment is itself reviewable for compliance with the Constitution’s own procedures, and that section 42 protects all persons in the country, not only citizens. The standing of the Leader of the Opposition had been settled in an earlier ruling in the same proceedings, Namah v Pato (2014) SC1304, applying the Re Petition of MT Somare rules.
Why it matters
Rights amendments must follow section 38. A majority in Parliament is necessary but not sufficient; the amending law must state its purpose and be justified.
Executive arrangements cannot override section 42. An agreement with another State is not a source of power to detain.
Contest the facts properly. A party that ignores directions to settle facts in a constitutional case may find the other side’s statement taken as admitted.
What it does not decide
Namah v Pato did not determine the transferees’ individual claims or the remedies available to them, which were pursued in later proceedings. In Boochani v The State (2017) SC1566 the Court refused an interlocutory injunction against deportation, holding that neither section 57 nor section 155(4) supplied the jurisdiction. Nor did the case decide the legality of the processing of refugee claims as such.
Later cases applying it
- Boochani v The State [2017] PGSC 4; SC1566 — the declarations and orders in Namah v Pato set out as the foundation of the transferees’ enforcement application.
- Application by the Pangu Pati Inc [2025] PGSC 88; SC2787 — the standing ruling in Namah v Pato (2014) SC1304 affirmed as authority that standing under section 18(1) is governed by the Somare rules.
- Konda’lane Properties Ltd v Parkop [2022] PGSC 80; SC2289 — Namah v Pato cited for the principle that costs follow the event.
Sources
- Namah v Pato [2016] PGSC 13; SC1497 (Salika DCJ, Kandakasi, Kariko, Sawong and Higgins JJ, 26 April 2016)
- Namah v Pato [2014] PGSC 1; SC1304 (standing)
- Constitution — ss 18, 38, 42, 57; Migration Act (Chapter 16)
- Boochani v The State [2017] PGSC 4; SC1566; Application by the Pangu Pati Inc [2025] PGSC 88; SC2787; Konda’lane Properties Ltd v Parkop [2022] PGSC 80; SC2289
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