Legal immunity for security forces, vague use-of-force provisions, spying on citizens all add up to legal overreach.
Commentary by Michael Kabuni
When Facebook was shut down by Papua New Guinea’s government for a day, no one could point to a specific provision of the Counter-Terrorism Act 2024 (CTA) that enabled it, apart from loose references to the law. A few days later, the police commissioner referred to section 16 of the law but even this section does not provide for shutting down any form of media. This section gives the police commissioner and the police force ‘access to information’ to aid in the investigations.
Authorities justified their actions under the CTA, but in doing so, they have exposed its fundamental flaws – namely, its unconstitutional overreach, its threat to civil liberties, and its potential for abuse under the guise of national security.
This draconian legislation, which had previously escaped widespread examination, is now facing rightful scrutiny and the shutdown has ignited debate over the unchecked powers granted under the CTA.
Initially enacted in response to atrocities committed in the Highlands, the CTA was never anticipated to be used for policing online platforms – a role already covered by the Cyber Crime Act.
The first instance of the CTA’s application occurred on 13 March in Morobe Province, where two women were charged with “inciting violence”. This case was struck out by the magistrate, who observed that police officers elevated the offense to terrorism portions against two vulnerable women who did not pose a risk to society.
It was 11 days later when Facebook and its Messenger app no longer functioned that the estimated 1.5 million users – of a population of about 12 million – and the public at large began to realise the extent of the law’s overreach.
Here are some examples.
Section 11 of the CTA permits arrests and detention without a warrant based solely on suspicion of terrorism-related activities. This unchecked authority not only violates the right to personal liberty under Section 42 of the PNG Constitution but also sets a precedent for authoritarian governance, where rule of law is supplanted by discretionary power.
Similarly, Section 12 expands warrantless search and seizure powers, directly undermining Section 44 of the Constitution, which protects individuals from arbitrary search and entry. Even more alarming is Section 13, which allows law enforcement to check vehicles, places, or premises without warrants – a low threshold for invading the privacy of Papua New Guineans.
It is important to note that similar provisions for search and seizure exist under PNG laws, but there are safeguards built into the laws to prevent abuse.
Beyond the direct infringement on personal freedoms, the Act institutionalizes state surveillance on an unprecedented scale in PNG.
Section 14 grants the attorney-general the power to authorise the use of surveillance devices on the basis of “reasonable suspicion” – a vague and highly subjective criterion.
Section 15 extends this authority to the police commissioner, allowing surveillance to be carried out without the attorney-general’s approval, if it is deemed “impractical or imprudent” to obtain it. Just let that sit there for a moment. “Imprudent”.
These provisions not only violate the constitutional right to privacy under Section 49 but also lack any meaningful judicial oversight. It basically enables spying on citizens.
Perhaps the most insidious feature of the CTA is its broad definition of terrorism.
The definition encompasses acts intended to advance “political, religious, or ideological causes.” Section 28 allows the Head of State, upon recommendation from the prime minister and cabinet – the National Executive Council – to designate organisations as terrorist entities. This process could be weaponized against political opponents, activists and civil society groups.
Similar laws elsewhere have given rise to authoritarian legalism, “where the state employs legal mechanisms to legitimise political repression under the pretense of security concerns”. In PNG, where politics is dirty and corrupt, it’s not too far-fetched to imagine this may be possible.
Sections 8, 17, and 18 place the Counter-Terrorism Joint Security Task Force under the police commissioner’s command, giving him authority to issue directives without independent oversight.
Section 9 shields the Task Force members from criminal and civil liability.
Section 10 permits law enforcement officers to use “reasonable and necessary force,” a dangerously vague standard that may lead to human rights abuses under the pretense of counter-terrorism operations.
The police have previously opened fire on university student protesters, even killing some, for demonstrating against unpopular governments. With the CTA in effect, protests could now be reclassified as terrorism, effectively criminalising dissent while granting perpetrators – the task force or police – immunity from prosecution.
The trajectory of nations that have embraced similar counter-terrorism measures is clear – without correction, PNG risks further democratic decline and the entrenchment of an increasingly repressive state. As scrutiny intensifies, the CTA faces the real possibility of being challenged in court for possible constitutional violations….PACNEWS
Michael Kabuni is a PhD student at the Australian National University and formerly a lecturer at the political science department at the University of Papua New Guinea.
