THE LOGIC OF ASYLUM SEEKERS DEAL

There is ongoing public debate in PNG for and against the asylum seekers deal between Australia and PNG. This writer contributes his personalviews.

Proponents arguing the affirmative say that it is time for PNG to demonstrate maturity and leadership and engage in addressing regional and global issues. Political leaders where major infrastructure projects will be developed through this deal support it because it is beneficial for their electorates. The local chambers of commerce are praising the deal because it will create business and thereby employment opportunities. The government says PNG has huge land mass and less population and in addition, it is not a new deal. But these arguments beg questions. Who owns the bulk of the land in PNG? Are the owners of the land willing to give up their land? Does the State own adequate land to spare? If it had been a done deal why sign a new agreement this time? Why were the terms of the deal concealed from the nation? Is the deal in the nation’s interest? The Christians are all over the airwaves on radio arguing that the asylum seekers are a threat to this Christian country. Some say it is hard to distinguish between genuineasylum seekers and members of extremists groupssuch as Al Qaida who want to spread their beliefs here and commit inhuman and indiscriminate atrocities we only watch on television.Given the record in relation to ournational security mechanisms they are a serious national threat. Others argue that whilst we Melanesians welcome and assist other people in dire need we do not usually welcome the same en-mass to share our limited land and whomay in the near future be a threat to our territories and our very own existence. Our cultures are unique and fragile. Some passionately argue that Kevin Rudd has demonstrated contempt for PNG’s sovereignty because he has treated PNG as Australia’s dumping ground. Does he? It is even argued few elites that the deal may be unconstitutional. Surely there are many complex cross-cutting issues.

Theoverarching question is, is the deal constitutional? Is it lawful? The Minister for Justice and Minister for Foreign Affairs, both prominent lawyers, have not so far explained to the nation that it is Constitutional. PNG has no domestic laws to process a third party nation’s asylum seekers. We have immigrations law but it does not go so far to accommodate Australia’s asylum seekers. PNG may be privy to relevant international treaties but they do not take precedence over our domestic laws. Stepping up as a regional leader and discharging our international treaty obligations must be done subject to our laws. In its genuine efforts to demonstrate that it has matured and that it is a regional leader PNG Government must not be foolish in unwittingly announcing that it is a regional leader whichrepeatedly ignores its own Constitution. The world knows that PNG’s political leadership are known to have reckless regard for their Constitution.Nothing stops PNG government from seeking foreign aid and developing the infrastructure, creating employment and growing the economy provided it complies with and protects its own laws. 

Keeping asylum seekers in mandatory detention centre when they have not committed any crime under PNG laws is a clear denial of their constitutional freedom and right to personal liberty guaranteed by the Constitution at Section 42. The various exceptions under that Section such as custodial sentence upon conviction or temporary detention on suspected or alleged crime etc., do not apply here. The UNHCR reports have concluded, among others, that Australia is in breach of a 1951 UN Convention on asylum seekers by entering into the deal. That PNG has no relevant domestic laws to address the Australian asylum issue. It revealed thatthe asylum seekers in the mandatory detention centre in Manus are living in conditions that fall short of international standards. This simply means that the conditions are inhuman. That is a breach of Constitutional rights in PNG. The asylum seekersenjoy the same constitutional freedoms and rights as those in police cells or in our jails throughout PNG. In the event a successful class action is initiated in our courts by the asylum seekersfor breach of human rights,who will bear the liability, PNG or Australia?

Other further pertinent questions surrounding the deal remain unanswered. Is the Australian aid package under the deal over and above the usual Australian annual aid given to PNG? If so, for how long will this continue, and if it continues,what other major projects in PNG are identified for development under the package? What happens if the Abott-led coalition is elected into government and it has a different immigration policy? 

Business houses in PNG – 90% foreign-owned – which support the asylum deal in essence, reckon that it makes business sense for themwhen our political leadership ignores the Constitution but they canquickly cry foul over civil disorder caused by the rest of the society. Political leadership who support the deal for obvious political reasons are in essence telling everyone not to worry about their ignorance of the Constitution or any law but to focus on the benefits of the deal. They are free to ignore the Constitution and flounder it for political convenience but its not alright for them if the public service or rest or the nation does the same, or is it? 

Julia Gillard tried to impose Australian immigration policy on Timor-Leste and the government there told her to back off! May be she did not dangle enough carrots there? Kevin Rudd came to PNG because our political leadership have continuously demonstrated not only the propensity to ignore our Constitution but to actually have reckless regard for it. Remember a Minister in the current PNG government who stated at a recent press conference in support of the controversial convicted Indonesian fugitive that he will go out of his way to find investors to invest in PNG and he did not care who they were even if they were convicted felons? Kevin Rudd seems to have cared less about our Sovereignty, our laws, our fragile Melanesian society and customs and the implications on them by this deal. Hesimply had to wave enough bundles of dollars to make us dance to his tunes quite at the expense of the Constitution. 

Blinded by the glitters of the dollars, the PNG Government has unintentionally drawn itself into the Australian Federal politics. Issues such as Asylum seekers, carbon tax, mining tax, the economy, to name a few, are hot potatoes in Australian federal politics. They influence voter opinion for or against Rudd-led Labor Party or the Abott-led Coalition. HasPNG in any way played a part in determining the outcome of the federal politics down under?The best the PNG government could have done was to advise Kevin Rudd to wait till their federal elections are over and address the issue with whoever gets into power. 

Finally, the issue should be, not the benefits or the lack of it under the deal, rather, is itlawful for the PNG Government to have signed the deal? Whilst itseems nostraight mathematics to many, the writer argues that there are huge benefits in the long run in complying with our Constitution.For elected leadership and business houses,theEnglish Philosopher, John Stuart Mill’s Utilitarian principle that “the end justifies the means”does not easily apply under PNG’s Constitutional framework. Theapparent complex cross-cutting issues demonstrate that there ought to have been wider public consultations prior to sealing the deal.A truly democratic government is a government of the people, for the people, by the people.

NemoYalo

Comments are welcome to email: nyalo.assoc@gmail.com or mobile (675)71569235/76228467.