Time for common sense to prevail

 FOREIGN Affairs Minister Rimbink Pato will always have a difficult time convincing the public when it comes to matters dealing with Constitutional changes.

His past life intervenes.

As principal of Steeles Lawyers, Pato led five bitter but successful fights against the State on behalf of the Morobe Sam Sewe (Cabinet). Three were against laws introduced by Parliament – the Value Added Taxation Act of 1999, the Enhanced Cooperation Programme (ECP) Act of 2004 and the Preferential Voting system adopted by Parliament, one challenged the Prime Minister for inaction on appointing a deputy prime minister and another challenging the State’s negligence of the Buimo jail facility.

In all cases serious infringements of the rights and freedoms of the people as guaranteed by the Constitution were successfully fought. Pato won a Supreme Court ruling that the VAT law was “unconstitutional, oppressive and repugnant”.

The next opportunity arose when on June 30, 2004 the foreign affairs ministers of Australia and PNG signed an agreement called the Enhanced Cooperation Programme. The ECP committed Australia to a further K2 billion in aid outside the existing arrangements which would see Australian police and other personnel come to work in PNG.

This agreement with all the conditions precedent was later ratified as law by Parliament. This was all very well except for certain parts of the conditions. 

In it Australian federal policemen were to be deployed for the first time on PNG soil to do beat patrols alongside their PNG colleagues and for various other Australian civil servants, including lawyers, to be engaged in senior capacities including being eligible to be public prosecutors and even to become judges.

The Treaty granted immunity from prosecution for the Australians engaged under the ECP and their dependents. Other PNG laws pertaining to migrations, taxation, tariffs and duties, transport and civil aviation and telecommunications were to be waived. Pato went to court on behalf of the Sam Sewe again claiming flagrant abuse of the Constitution of PNG and a violation of international and diplomatic principles and practices.

He held the agreement to be “deplorable, discriminatory and in contravention of the Constitution of PNG”. 

The Supreme Court agreed, ECP was thrown out lock, stock and barrel. 

Pato is now on the opposite side of the fence. As a government minister he has proposed changes to the Constitution that will legitimise the Manus refugee resettlement policy and prevent legal challenges to it.

As an astute reader of the law and having done it many times before, Pato must know that the Government’s position is weak before court on present challenges to the Manus asylum seekers’ detention and processing.

Were he not a member of Parliament, we dare say, he might be scouring the law books himself to present arguments against the very laws he is proposing – but that is another story. We ask him to think of this problem as a politician and not as a lawyer. It is a policy matter, not a legal issue.

One government asked another as they have always  done under existing bilateral arrangements to assist with a problem. Both agreed that it would be less attractive to non-genuine asylum seekers who were just looking to escape to a first world nation if they found the final destination was PNG, not Australia. 

It is a perfectly legitimate executive government decision. There is nothing here for lawyers to decide about the rights and wrongs in the fact of the creation of the centre of detention at Manus.  What goes on inside such a centre is, of course, a very different matter.

Asylum seekers are fleeing their own country, claiming their human rights and, if they stay much longer, their lives would be deprived by the powers that be. Whether these are genuine reasons or not, nobody knows. Processing is essential to establish that.

What now needs to happen, having made the decision, is to liaise with international agencies, with the expertise such as UNCHR to assist with care in processing those who brought to the centre as quickly as possible to resettle or repatriate those at the centre.

There is no need to tamper with the Constitution on account of a policy that has got a bit messy. Being lawyers they will always have a plausible explanation but that is beside the point. They are quilty by association.