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In re Enforcement of Basic Rights under the Constitution of Papua New Guinea, Section 57 [2014] PGNC 18; N5583 (2 May 2014)

N5583

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HROI NO 2 OF 2013

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER THE CONSTITUTION OF
THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

RE ALLEGED BRUTAL TREATMENT OF SUSPECTS
REPORTED IN THE NATIONAL NEWSPAPER, 28.05.13, PAGE 4

Waigani: Cannings J
2014: 30 April, 2 May

HUMAN RIGHTS – Constitution, Section 57(1) (enforcement of guaranteed rights and freedoms) – power and duty of National Court to inquire into and protect and enforce guaranteed rights and freedoms – Constitution, Section 57(3): National Court may make all such orders and declarations as are necessary or appropriate for the purposes of Section 57.

The National Court published a judgment in the form of a report of its inquiry into allegations of human rights violations against members of the Police Force. The Court declared that the allegations were extremely serious and genuine, named the members of the Police Force implicated, declared that the steps taken by the Police Force were woefully inadequate and the steps taken by the Public Solicitor were barely adequate and ordered that the inquiry would continue and that the Commissioner of Police, the Metropolitan Police Commander for the National Capital District and the Public Solicitor were summoned to personally appear to address remaining issues. Those three office-holders appeared on 26 March 2014 and gave sworn evidence. The Court on 28 March 2014 declared that it remained unsatisfied with their responses and summoned them to appear again on 30 April 2014 to provide further, detailed evidence, including documentary evidence as to their responses to the allegations of human rights violations. This is the Court's ruling on the question of whether the inquiry would continue and whether further orders and declarations should be made.

Held:

(1) The Court should only conclude an inquiry of this nature when it is satisfied that the responses of those whose responsibility it is to inquire into allegations of human rights violations and protect and enforce human rights are fully adequate.

(2) The Court remained unsatisfied that the responses of the Commissioner of Police, the Metropolitan Police Commander and the Public Solicitor to the issues on which each was required to address the Court were fully adequate, given that: (a) the Commissioner of the Police Force filed his affidavit late and gave no evidence of steps he has taken between 29 March and the date of hearing; (b) the Metropolitan Superintendent failed to file an affidavit as required and failed to answer the summons, putting himself in jeopardy of being charged with contempt of court; and (c) the Public Solicitor failed to file an affidavit as required and failed to present any documentary evidence of his being issued with a practising certificate, as required.

(3) Each office-holder was again summoned to appear in Court on 29 May 2014.

Case cited

The following cases are cited in the judgment:

Re Alleged Brutal Treatment of Suspects (2014) N5512
Re Alleged Brutal Treatment of Suspects (2014) N5540
Re Conditions of Detention at Lakiemata Correctional Institution, WNB Province (2007) N4999

INQUIRY

This was the continuation of an inquiry by the National Court under Section 57 of the Constitution.

Counsel

E Wurr, for "the suspects" and the Public Solicitor
N Miviri, for the Police

2nd May, 2014

1. CANNINGS J: These are my reasons for making further orders concerning this inquiry into alleged human rights violations committed by members of the Police Force.

THE JUDGMENT OF 26 FEBRUARY 2014

2. I recently published a judgment in the form of a report of the inquiry (Re Alleged Brutal Treatment of Suspects (2014) N5512). I declared that the allegations arising from the incident at Jackson's Airport, Seven Mile, National Capital District on Sunday 26 May 2013 were extremely serious and genuine. It was alleged that a group of 74 men, mainly from Morobe Province, were intercepted by the Police, directed to lie face down on the ground, and that after those men did as they were told, members of the Police Force assaulted them by kicking and hitting them with weapons such as gun butts and tree branches and that some Police used bush knives to cut the men, mainly on the lower part of their legs: the ankles and Achilles tendons being targeted.

3. I named seven members of the Police Force as being implicated and declared that the steps taken by the Police Force were woefully inadequate and the steps taken by the Public Solicitor were barely adequate. I ordered that the inquiry would continue. The Commissioner of Police, the Metropolitan Police Commander for the National Capital District and the Public Solicitor were summoned to personally appear before the Court on 26 March 2014 to address remaining issues. They appeared on 26 March 2014 and gave sworn evidence.

THE RULING OF 28 MARCH 2014

4. I ruled on their responses (Re Alleged Brutal Treatment of Suspects (2014) N5540). I was unimpressed by the evidence of all three office-holders:

• The Commissioner's evidence was vague and did not demonstrate any detailed knowledge of this case.
  
• Supt Bawa's evidence was less unconvincing but he was unable to explain why, 10 months after this very serious incident, only two members of the Force have been charged under the Criminal Code. And the Court still has no documentary proof of the charges and their progress.
  
• I was flabbergasted to hear the Public Solicitor say, after being summoned to the Court to address issues concerning his performance as Public Solicitor, which have been set out in some detail in the judgment of 26 February 2014, that he has not read the judgment. That was a disappointing response.
  

5. I said that the Court should only conclude an inquiry of this nature when it is satisfied that the responses of those whose responsibility it is to inquire into allegations of human rights violations and protect and enforce human rights are fully adequate.

6. I remained unsatisfied that the responses of the Commissioner of Police, the Metropolitan Police Commander and the Public Solicitor to the issues on which each was required to address the Court were fully adequate. Therefore I ruled that the inquiry would continue.

7. I again summoned those three key office-holders to appear in Court. I imposed an additional requirement: they were each ordered to file an affidavit, to be served five days before their next appearance, stating in detail and corroborated by supporting documents their responses to the Court's requisitions. I declared and ordered, pursuant to Sections 22, 23(2), 57(3) and 155(4) of the Constitution, as follows:

(1) The Court remains unsatisfied that the responses of the Commissioner of Police, the Metropolitan Police Commander for the National Capital District and the Public Solicitor to the allegations of human rights violations is fully adequate.

(2) It is ordered that this inquiry will continue and the persons named in the Schedule are:

• (a) required to depose in detail in an affidavit as to each of the issues set out in the Schedule; and
  
• (b) summoned to personally appear before the Court at its next hearing to give oral testimony on the issues set out in the Schedule and be subject to cross-examination and the scrutiny of the Court on such issues.
  

(3) The date by which the affidavits referred to in (2)(a) are to be filed and served is five days before the hearing referred to in (2)(b), the date, time and place of which will be set in consultation with the persons named in the Schedule.

SCHEDULE

DID THE THREE SENIOR PUBLIC OFFICE-HOLDERS COMPLY WITH THE ORDER OF 28 MARCH 2014?

8. The hearing was set for 30 April 2014 at 9.30 am and proceeded as scheduled.

The Commissioner of Police, Mr Toami Kulunga

9. He appeared in Court in accordance with the order and gave sworn evidence. However, he did not comply fully with the order as he failed to file and serve an affidavit five days before the hearing. It is noted also that the Commissioner gave no evidence of what he had done in the period between 29 March and 30 April 2014 to pursue these matters and ensure that the criminal and disciplinary proceedings were being prosecuted without further delay.

10. Despite those shortcomings, it is clear that the Commissioner is now giving this case the priority it deserves and he is to be commended for that.

The NCD Metropolitan Commander, Supt Andy Bawa

11. He failed to appear, thereby putting himself in jeopardy of being charged with contempt of court. The court was told he was on recreation leave for three months and was out of the country. The court has no record of his making an application to vary the order of 28 March 2014 or for any dispensation from the order of 28 March 2014. He will need to appear in court at the next hearing and show cause why he should not be charged with contempt of court. (For a discussion of the matters to be taken into account by the Court in deciding whether to charge a person with contempt of court for disobeying an order of the court, see Re Conditions of Detention at Lakiemata Correctional Institution, WNB Province (2007) N4999). He also failed to file an affidavit, as ordered on 28 March 2014.

12. Despite those shortcomings an affidavit sworn by the Police counsel Mr Miviri annexes a draft affidavit by Supt Bawa which suggests that immediately after the hearing on 26 March 2014 he – together with the Commissioner – acted swiftly to elevate the priority being given to this matter. A new criminal investigation team was appointed and this has resulted in criminal charges being laid against a number of members of the Police Force, in addition to the two originally charged.

The Public Solicitor, Mr Frazer Pitpit

13. He appeared in Court in accordance with the order and gave sworn evidence. He indicated that he has been issued with a practising certificate. However, he did not comply fully with the order as he failed to file and serve an affidavit five days before the hearing.

14. Despite that breach of the order, he tendered a copy of a writ of summons, WS (HR) No 9 of 2014, filed on 9 April 2014, which are proceedings for enforcement of human rights under which three lead plaintiffs on behalf of themselves and 71 others seek damages in connection with the 26 May 2013 incident.

COURT STILL NOT SATISFIED

15. As I said in my ruling of 28 March 2014 the Court should only conclude an inquiry of this nature when it is satisfied that the responses of those whose responsibility it is to inquire into allegations of human rights violations and protect and enforce human rights are fully adequate.

16. I remain unsatisfied that the responses of the Commissioner of Police, the Metropolitan Police Commander and the Public Solicitor to the issues on which each was required to address the Court were fully adequate. Therefore this inquiry must continue. I will again summon each of those three key office-holders to appear in Court. Again, I will order that each of them file an affidavit, to be served five days before their next appearance, stating in detail and corroborated by supporting documents their responses to the Court's requisitions.

DECLARATIONS AND ORDERS

17. It is declared and ordered, pursuant to Sections 22, 23(2), 57(3) and 155(4) of the Constitution, as follows:

(1) The Court remains unsatisfied that the responses of the Commissioner of Police, the Metropolitan Police Commander for the National Capital District and the Public Solicitor to the allegations of human rights violations are fully adequate.

(2) It is ordered that this inquiry will continue and the persons named in the Schedule are:

• (a) required to depose in detail in an affidavit as to each of the issues set out in the Schedule; and
  
• (b) summoned to personally appear before the Court at its next hearing, on 29 May 2014 at 9.30 am, to give oral testimony on the issues set out in the Schedule and be subject to cross-examination and the scrutiny of the Court on such issues.
  

(3) The date by which the affidavits referred to in (2)(a) are to be filed and served is five days before the hearing referred to in (2)(b),

SCHEDULE

Judgment accordingly.

_________________________________________________________
Public Solicitor: Lawyer for the suspects & Public Solicitor
Chief Supt Nicholas Miviri: Lawyer for the Police Force & its members