Unreported National Court Decisions
N306
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOHN KOSI & 3 ORS
Waigani
Kidu CJ
19 January 1981
KIDU CJ:  The State has presented an indictment charging the four accused with the offence of unlawful assembly pursuant to Sections 62 and 61 of the Criminal Code.
Counsel for the accused moves to quash the indictment on the group that Sections 62 and 61 are unconstitutional in that they purport to regulate or restrict rights and freedoms guaranteed by Sections 45, 46 47 and 52 of the Constitution without complying with Section 38 of the Constitution.
Sections 61 and 62 of the Criminal Code read as follows:
“When three or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conduct themselves in such a manner, as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are in unlawful assembly.
It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
An assembly of three or more persons who assemble for the purpose of protecting the house of any one of them against persons threatening to break and enter the house in order to commit an indictable offence therein is not an unlawful assembly.
When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled.
62.     PUNISHMENT OF UNLAWFUL ASSEMBLY
Any person who takes part in an unlawful assembly is guilty of a misdemeanour, and is liable to imprisonment for one year.”
It is apparent from ss. 61 and 62 that the offence is directed at maintenance of public order and peace. There is no suggestion of peaceful assemblies being affected. In fact the section by its very terms shows quite specifically that a peaceful and orderly assembly only becomes an unlawful assembly when those involved conduct themselves in such a manner as to cause those in the neighbourhood to fear on reasonable grounds that:
“the persons so assembled will tumultuously disturb the peace or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace ...”
However, it is submitted that for any qualified right to be regulated or restricted by law, such a law or laws must be enacted under the rules laid down by Section 38 of the Constitution. As I understand Mr Brunton’s submission, sections 45, 47 and 52 allow regulation or restriction of the qualified rights and the words “regulated” and “restricted” in those sections should be given a liberal interpretation to include the effect of any law which might or does potentially restrict or regulate such rights. He puts his argument this way. For instance Section 46 of the Constitution guarantees freedom of expression. Sections 61 and 62 of the Criminal Code have the effect of deterring people from attending public meetings to exercise this right for fear that they might be charged with unlawful assembly. It is of course, possible for such a law to inhibit people from exercising their right to speak, their right to move freely and so forth.
That Sections 61 and 62 of the Code were not enacted according to Section 38 of the Constitution cannot be denied. The Criminal Code Act 1974 was passed by the pre-Independence House of Assembly and brought into operation in November 1975 (after Independence) by virtue of Sec. Sch. 2.6 of the Constitution.
Before Section 38 can be considered one must see whether Sections 61 and 62 of the Code regulate or restrict rights and freedoms provided for under Sections 45, 46, 47 and 52 of the Constitution. These sections provide:
“45.    Freedom of conscience, thought and religion
(1)      Every person has the right to freedom of conscience, thought and religion and the practice of his religion and beliefs, including freedom to manifest and propagate his religion and beliefs in such a way as not to interfere with the freedom of others, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).
(2)      No person shall be compelled to receive religious instruction or to take part in a religious ceremony or observance, but this does not apply to the giving of religious instruction to a child with the consent of his parent or guardian or to the inclusion in a course of study of secular instruction concerning any religion or belief.
(3)      No person is entitled to intervene unsolicited into the religious affairs of a person of a different belief, or to attempt to force his or any religion (or irreligion) on another, by harassment or otherwise.
(4)      No person may be compelled to take an oath that is contrary to his religion or belief, or to take an oath in a manner or form that is contrary to his religion or belief.
(5)      A reference in this section to religion includes a reference to the traditional religious beliefs and customs of the peoples of Papua New Guinea.
46.     Freedom of expression
(1)      Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law:
(a)      that imposes reasonable restrictions on public office-holders; or
(b)      that imposes restrictions on non-citizens; or
(c)      that complies with Section 38 (general qualifications on qualified rights).
(2)      In Subsection (1), “freedom of expression and publication” includes:
(a)      freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and
(b)      freedom of the press and other mass communications media.
(3)      Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations:
(a)      for the communication of ideas and information; and
(b)      to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,
and generally for enabling and encouraging freedom of expression.
47.     Freedom of assembly and association
Every person has the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations or other associations, except to the extent that the exercise of that right is regulated or restricted by a law:
(a)      that makes reasonable provision in respect of the registration of all or any associations; or
(b)      that imposes reasonable restrictions on public office-holders; or
(c)      that imposes restrictions on non-citizens; or
(d)      that complies with Section 38 (general qualifications on qualified rights).”
“52.    Right to freedom of movement
(1)      Subject to Subsection (3) no citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country, except in consequence of a law that provides for deprivation of personal liberty in accordance with Section 42 (liberty of the person).
(2)      No citizen shall be expelled or deported from the country except by virtue of an order of a court made under a law in respect of the extradition of offenders, or alleged offenders, against the law of some other place.
(3)      A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the exercise of the right referred to in Subsection (1), and in particular may regulate or restrict the freedom of movement of persons convicted of offences and of members of a disciplined force”.
It is quite clear, that sections 61 to 62 of the case, do not directly restrict or regulate any of the rights in Sections 45, 46, and 52.
One thing I find common to all these guaranteed rights is that nowhere in their own terms do they permit breaking of public peace and the enjoyment by others of their rights. Nowhere does the Constitution directly or impliedly provide that for instance, in propagating ones religious freedom can one exercise such right in a non-peaceful manner. Right to freedom of speech does not confer right to speak without responsibility. The freedom to move anywhere in Papua New Guinea does not confer on people the right to do so with means unpeaceful. When in a peaceful assembly persons use irritating language not to persuade others but to create disturbance, the rationale of free speech can not apply and the speaker is removed from the protection afforded by Constitutional guarantees. I do not think the framers of our Constitution wanted to protect those who exercise constitutionally guaranteed rights and freedoms by speeches and actions which incite or stir up others to resort to unpeaceful exercise of their rights or to provoke others to become violent.
The right guaranteed by Section 47 is to a peaceful assembly. This guarantee is given with the condition that it be exercised peacefully. Any exercise of the right which is not peaceful is outside the protection afforded by the section.
The same goes for the right to free speech. Anything uttered in a meeting or rally that advocates violence or force or that defames is in my opinion outside the protection guaranteed by the Constitution.
So long as people peacefully assemble and refrain from causing public disturbance by their actions or refrain from defaming others or not preventing others from moving freely and exercising their rights, there is constitutional protection. When a meeting or rally or demonstration goes outside the scope of peaceful exercise of rights and freedoms, the Constitution ceases to protect.
In my view Sections 61 and 62 are not unconstitutional. They do not infringe on any constitutional right. They do not restrict or regulate any guaranteed rights. They operate only when those exercising such rights go beyond the protections afforded by, in this case, Sections 45, 46, 47 and 52 of the Constitution.
The motion to quash the indictment is, therefore, denied.
Solicitor for the State: L. Gavara-Nanu, Public Prosecutor
Counsel: J. Byrne
Solicitor for the Accused: B. Brunton
Counsel: B. Brunton