N6857
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 58 OF 2015

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS UNDER SECTION 57 OF THE CONSTITUTION 

THEO YASAUSE
Applicant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Cannings J
	2015,	3rd September, 2nd October, 2016, 22nd June, 2017, 1st September 

HUMAN RIGHTS – application by prisoner for enforcement of human rights: Constitution, Section 37(1): right to the full protection of the law – alleged delay by Supreme Court in determination of appeal against conviction..

The applicant, a prisoner serving a 30-year sentence for murder, applied to the National Court for enforcement of his human rights, which he claimed were breached by the Supreme Court, which heard his appeal against conviction but had failed to give a decision 21 months after the hearing. He argued that the prolonged delay in giving a decision was a breach of his rights to: protection against mental torture (under Section 36(1) of the Constitution; full protection of the law, in particular the right to a fair hearing within a reasonable time and to have his conviction reviewed by a higher court under Sections 37(1), (3) and (15) of the Constitution; and protection against harsh and oppressive or other proscribed acts under Section 41 of the Constitution. The relief sought by the applicant was not clear. Though he was not seeking compensation, he was apparently seeking a declaration as to a breach of human rights and an order requiring the Chief Justice to direct the Supreme Court to deliver a decision on his appeal. The State was joined to the proceedings as a notional respondent and represented by the Solicitor-General. The State argued that the application should be summarily dismissed as the National Court had no jurisdiction, given that the essential complaint was against the Supreme Court and therefore such an application should have been filed in the Supreme Court. 

Held:

(1)	The State’s principal argument was upheld: the application was summarily dismissed as the National Court had no jurisdiction, as the essential complaint was against the Supreme Court and it would be incongruous and unconstitutional for the National Court to make a determination of alleged human rights breaches against a higher court, such as the Supreme Court.

(2)	A further reason for dismissing the application was that the applicant was not without an avenue for prosecuting his grievance. He could, if he wanted to, make the same application for enforcement of human rights to the Supreme Court, under Section 57(1) of the Constitution.

(3)	Obiter dictum: As to the merits of the application, the applicant would be hard pressed succeeding with his arguments about breaches of Sections 36(1) and 41 of the Constitution. However, it is conceivable that his arguments about breaches of Sections 37(1), 37(3) and 37(15) of the Constitution could succeed as it would appear strongly arguable that the combined effect of a convicted person’s rights to the full protection of the law, to a fair hearing within a reasonable time and to have his conviction reviewed by a higher court, is to confer on him a right to a decision from the appellate court within a reasonable time after the hearing, and that a reasonable time is a substantially lesser period than 21 months after a hearing.    

Cases cited:

The following cases are cited in the judgment.

The State v Theo Yasause (2012) N4871
Theo Yasause v The State SCRA No 30 of 2013, 09.06.16, unreported
Yaip Avini v The State (1998) N1786

APPLICATION

This was an application for enforcement of human rights under Section 57(1) of the Constitution.

Counsel:

V Amoko, for the Applicant
G Akia & A Kajoka, for the Respondent

1st September, 2017

1.	CANNINGS J: This is a ruling on an application for enforcement of human rights by Doctor Theo Yasause, a prisoner at Bomana Correctional Institution, serving a 30-year sentence for murder. He was convicted and sentenced by the National Court in 2012. He appealed against his conviction to the Supreme Court. The appeal was heard in December 2013. By April 2015 the Supreme Court had not given a decision on the appeal. That is when Dr Yasause filed this application for enforcement of human rights. 

2.	He claims that the body responsible for breaching his human rights was the Supreme Court, which did so by failing to give a decision on his appeal. He argues that the prolonged delay in giving a decision was a breach of his rights to: 

•	protection against mental torture (under Section 36(1) of the Constitution; 

•	full protection of the law, in particular the right to a fair hearing within a reasonable time and to have his conviction reviewed by a higher court under Sections 37(1), (3) and (15) of the Constitution; and 

•	protection against harsh and oppressive or other proscribed acts under Section 41 of the Constitution. 

3.	The relief sought by the applicant has never been entirely clear. Though he was not seeking compensation, he was apparently seeking a declaration as to a breach of human rights and an order requiring the Chief Justice to direct the Supreme Court to deliver a decision on his appeal. 

4.	The State was joined to the proceedings as a notional respondent and represented by the Solicitor-General. The State argued that the application should be summarily dismissed as the National Court had no jurisdiction, given that the essential complaint was against the Supreme Court and therefore such an application should have been filed in the Supreme Court. 

5.	There is little doubt that in filing the application, Dr Yasause was prosecuting a genuine grievance about a delayed judgment. However it must be said that that grievance has in a large part been resolved as the Supreme Court has in fact handed down the judgment on his appeal. That happened on 9 June 2016. I subsequently recalled the matter and enquired with Dr Yasause whether he wanted to maintain his application. He said yes, which was a fair position to take as the application raises some important human rights issues. So although in some respects this ruling is academic, as it does not have any bearing on Dr Yasause’s case, I think that it will be beneficial to many people in the criminal justice system to have a ruling from the National Court on what has been argued. 

FACTS

6.	In the early hours of 4 February 2011, the Rugby League personality and former star player Aquila Emil, was shot dead near the Lamana Hotel, Port Moresby.

7.	On 7 February 2011, Dr Yasause was arrested, detained in custody and charged with the murder of Aquila Emil. 

8.	Dr Yasause remained in custody until the time of his trial in the National Court before Acting Judge Kangwia, as he then was, in July 2012.

9.	On 29 September 2012 the National Court delivered its verdict, finding Dr Yasause guilty of murder, as charged (The State v Theo Yasause (2012) N4871). 

10.	Dr Yasause filed an appeal against his conviction within the 40-day period allowed by the Supreme Court Act, registered as SCRA No 30 of 2013.

11.	On 18 December 2013 the Supreme Court, constituted by Justice Sakora, Justice David and Justice Kassman, heard the appeal. Dr Yasause represented himself and State Prosecutors Messrs D Kuvi and D Mark, of the Office of Public Prosecutor, appeared for the State. At the end of the hearing the Supreme Court reserved its decision.

12.	Nine months later, the Supreme Court had not given its decision, and on 2 October Dr Yasause started writing letters to the Registrar of the Supreme Court, Mr Augerea, expressing his concern about the delay in getting a decision, which he said was causing him stress and having an adverse effect on his health.  

13.	Further letters were sent to the Registrar on 2 February and 3 April 2015. It is in evidence that the Registrar brought this correspondence to the attention of the Chief Justice, Sir Salamo Injia, and that his Honour on each occasion forwarded the correspondence to the Judges concerned with a request that their judgment on the appeal be expedited.

14.	On 16 April 2015 – 16 months after the hearing of the appeal - Dr Yasause filed the application for enforcement of human rights in the National Court.

15.	On 3 September and 2 October 2015 – 21 months after the hearing of the appeal – the application was heard before me. Ms Amoko of the Office of Public Solicitor appeared for Dr Yasause. Mr Akia and Ms Kajoka of the Office of Solicitor-General appeared for the State. 

16.	On 9 June 2016 – 29 months after the hearing of the appeal – the Supreme Court delivered its decision, dismissing the appeal against conviction (Theo Yasause v The State, SCRA No 30 of 2013, 09.06.16, unreported).

A separate appeal against sentence, SCRA No 37 of 2013, has yet to be heard. 

ISSUES

17.	The following issues arise:

1.	Should the application for enforcement of human rights be summarily dismissed?

2.	Was there any breach of human rights?

3.	What order should the Court make?

1	SHOULD THE APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS BE SUMMARILY DISMISSED?

18.	I have decided to uphold the State’s principal argument. I am persuaded by the submission of Mr Akia that this application should be dismissed as the National Court has no jurisdiction to entertain a claim that the Supreme Court or its members have breached the human rights of a party appearing before it. It would be incongruous and unconstitutional for the National Court to make a determination of alleged human rights breaches against a higher court, such as the Supreme Court. It would be contrary to the judicial hierarchy established by Section 155 (the national judicial system) of the Constitution, which states:

(1)	The National Judicial System consists of—
(a)	the Supreme Court; and
(b)	the National Court; and
(c)	such other courts as are established under Section 172 (establishment of other courts).

(2)	The Supreme Court—
(a)	is the final court of appeal; and
(b)	has an inherent power to review all judicial acts of the National Court; and
(c)	has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

(3)	The National Court—
(a)	has an inherent power to review any exercise of judicial authority; and
(b)	has such other jurisdiction and powers as are conferred on it by this Constitution or any law,
except where—
(c)	jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d)	the Supreme Court assumes jurisdiction under Subsection (4); or
(e)	the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4)	Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

(5)	In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case.

(6)	Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.

19.	It will be observed that there is nothing in Section 155 that suggests that the National Court can review any acts or omissions (such as failure to deliver a judgment) of the Supreme Court. Though the present application is not styled as a review of an act or omission of the Supreme Court that is what it would in substance entail.

20.	A somewhat similar scenario arose in Yaip Avini v The State (1998) N1786. A prisoner who had been convicted of misappropriation in the National Court and sentenced to eight years imprisonment appealed unsuccessfully to the Supreme Court. He subsequently filed an application for enforcement of human rights under Section 57(1) of the Constitution in the National Court, arguing that the National Court had in his criminal trial infringed his human rights by amongst other things denying him a right to a fair hearing. Woods J summarily dismissed the application for enforcement of human rights, concluding:

I cannot find that the Constitution and the Organic Laws or the Laws made by Parliament, and in particular the National Court and Supreme Court Acts give a single Judge of the National Court the power to review or override the decisions of another Judge or a decision of the Supreme Court. The National Judicial System is established by Section 155 of the Constitution and pursuant to that section only the Supreme Court has the inherent power to review the judicial acts of the National Court. And in the case before me now it has done that. Neither Section 57 nor Section 155 gives a person a second chance to review the decisions of the National or the Supreme Court once the normal rights of appeal have been exercised.

In this case before me now the applicant is in effect asking me to review the judicial act of the National Court. The judicial act of that court has already been reviewed by the Supreme Court in the appeal. I find that I have no jurisdiction to further consider or in effect review that judicial act.

21.	I reiterate that the National Court has no jurisdiction to determine an application for enforcement of human rights when the body or persons alleged to have infringed the rights of the applicant is the Supreme Court or Judges of the Supreme Court acting in their judicial capacity in a case concerning the applicant.

22.	A further reason for dismissing this application is that the applicant is not without an avenue for prosecuting his grievance. He could, if he wanted to, make the same application for enforcement of human rights to the Supreme Court, under Section 57(1) of the Constitution, which states:

A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. [Emphasis added.]

23.	Order 6 (enforcement of constitutional rights) of the Supreme Court Rules 2012 sets out the procedure for making human rights enforcement applications in the Supreme Court. There are only four rules, which state:
Division 1.—Commencement of proceedings
1.	An application to enforce Constitutional rights under Constitution Section 57, shall in the first instance, if not made in the National Court, be made to a Judge.

2.	An application shall be supported by an affidavit setting out the facts giving rise to the application.
Division 2.—Form of constitutional enforcement application

3.	An application under Constitution Section 57 shall be instituted by an application to enforce constitutional rights and shall—
(a)	be entitled under the Section of the Constitution by which it is made together with the year and number of the application; and
(b)	be entitled with the name of the court, person or Law Officer making the application; and
(c)	state briefly the circumstances giving rise to the application and specify the relevant Constitutional rights provisions; and
(d)	be in accordance with form 6; and
*(e)	be signed by the person or Law Officer making the application; and
(f)	be filed in the registry.
Division 3.—Service
4.	An enforcement application and supporting affidavits shall be served—
(a)	on those whose conduct give rise to the action; and
(b)	if action for enforcement is taken against the executive arm of Government, in accordance with Order 4 Division 4.

2	WAS THERE ANY BREACH OF HUMAN RIGHTS?

24.	As I have decided that I have no jurisdiction, it is not necessary or appropriate to determine this issue. However I will make some brief comments, which might provide food for thought for future purposes. 

25.	The applicant alleges a breach of a number of human rights: protection against mental torture (under Section 36(1) of the Constitution; full protection of the law, in particular the right to a fair hearing within a reasonable time and to have his conviction reviewed by a higher court under Sections 37(1), (3) and (15) of the Constitution; and protection against harsh and oppressive or other proscribed acts under Section 41 of the Constitution. These provisions are in the following terms:

26.	Section 36(1) (freedom from inhuman treatment) states:

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

27.	Sections 37(1), (3) and (15) (protection of the law) state:

(1)	Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(3)	A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(15)	Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

28.	Section 41 (proscribed acts) states:

Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a)	is harsh or oppressive; or
(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)	is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.

29.	My view is that the applicant would be hard pressed succeeding with his arguments about breaches of Sections 36(1) and 41 of the Constitution. However, it is conceivable that his arguments about breaches of Sections 37(1), 37(3) and 37(15) of the Constitution could succeed as it would appear strongly arguable that the combined effect of a convicted person’s rights to the full protection of the law, to a fair hearing within a reasonable time and to have his conviction reviewed by a higher court, is to confer on him a right to a decision from the appellate court within a reasonable time after the hearing, and that a reasonable time is a substantially lesser period than 21 months after a hearing.    

3	WHAT ORDER SHOULD THE COURT MAKE?

30.	The appropriate order is to dismiss the proceedings and allow the parties to bear their own costs.  

ORDER

(1)	The application for enforcement of human rights is refused.

(2)	The proceedings are dismissed. 

(3)	The parties will bear their own costs.

(4)	The file is closed.
________________________________________________________________
Public Solicitor : Lawyer for the Applicant
Solicitor-General: Lawyer for the Respondent