Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Enforcement of Basic Rights under Section 57 of the Independent State of Papua New Guinea, In re [2017] PGNC 266; N6939 (12 October 2017)

N6939

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HROI NO 2 OF 2015

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

RE HUMAN RIGHTS OF PRISONERS SENTENCED TO DEATH

Waigani: Cannings J

2015: 27 August, 10 November

2017: 12 October

HUMAN RIGHTS – Constitution, Section 57 (enforcement of guaranteed rights and freedoms) – whether National Court has power to initiate proceedings to protect and enforce human rights – whether National Court can conduct inquisitorial, as distinct from adversarial, proceedings.

Human rights – prisoners sentenced to death – right to full protection of the law.

Power of mercy – Constitution, Subdivision VI.4.D – Organic Law on the Advisory Committee on the Power of Mercy – power of Head of State to grant pardon or remission or commutation or respite of sentence or less severe form of punishment.

The National Court invoked the power in Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution to protect and enforce the human rights of prisoners who have been sentenced to death. This was done by commencing proceedings on its own initiative, styled as an inquiry into human rights of prisoners sentenced to death, the principal purposes being to: identify which prisoners have been sentenced to death, identify what human rights they have and whether those rights are being afforded to them, and examine the role of the Advisory Committee on the Power of Mercy. Five respondents, being senior office-holders in the criminal justice system, assisted the Court in its inquiry: the Principal Legal Adviser (and Attorney-General), the Public Solicitor, the Public Prosecutor, the Commissioner of the Correctional Service and the Registrar of the National Court and Supreme Court. The respondents provided information, evidence and submissions. The Principal Legal Adviser submitted that the court had no jurisdiction to commence proceedings on its own initiative or to conduct an inquiry.

Held:

(1) The National Court obtains power to commence proceedings on its own initiative to protect and enforce human rights, and conduct such proceedings as an inquiry, rather than as adversarial proceedings, from Section 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution. The opinion of the Supreme Court in The State v Transferees (2016) SC1451, that the National Court lacks such power, is obiter dicta, and not binding on the National Court.

(2) There are at the time of judgment 14 persons under sentence of death, including two who have escaped from custody and are at large. Nine others have been sentenced to death since reintroduction of the death penalty in 1991, but are no longer under that sentence as three have died in custody and six have had their sentence commuted on appeal or review by the Supreme Court.

(3) Prisoners sentenced to death are entitled to the protection of a number of human rights enjoyed by all persons deprived of their liberty by order of a court of law, eg protection from inhuman treatment (Constitution, s 36), the full protection of the law, including the right to be treated with humanity and respect for the inherent dignity of the human person (s 37) and protection against harsh, oppressive and other proscribed acts (s 41). In addition, prisoners sentenced to death have certain rights peculiar to their status as persons condemned to death arising under Subdivision VI.4.D (the power of mercy) of the Constitution and the Correctional Service Regulation, which are tantamount to human rights as the prisoners are entitled to the full protection of such laws under Section 37(1) of the Constitution.

(4) Subdivision VI.4.D (the power of mercy) of the Constitution and the Organic Law on the Advisory Committee on the Power of Mercy establish and provide for membership of the Advisory Committee on the Power of Mercy and give it a critical role in the exercise of the executive power of mercy. There has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to facilitate appointments of members of that Committee and to provide it with staff and facilities. The Committee has become defunct, leaving all prisoners sentenced to death with no effective opportunity to invoke their right to full protection of the law by applying for exercise of the power of mercy.

(5) The Court made the following final declarations and orders, closing the proceedings:

• (a) Declared that there has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to comply with its duty to facilitate appointments of members of the Advisory Committee on the Power of Mercy and to ensure that arrangements were made, and staff and facilities provided and steps taken to enable and facilitate the proper and convenient performance of its functions.
  
• (b) Ordered that the National Executive Council by 1 January 2018, facilitate appointments of members of the Advisory Committee on the Power of Mercy and ensure that all arrangements are made, staff and facilities are provided and steps are taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of its functions.
  
• (c) Ordered that unless and until that order is complied with, the execution of any prisoner who has been sentenced to death, irrespective of whether his appeal and review rights have apparently been exhausted, is stayed.
  

Cases cited:

The following cases are cited in the judgment:

Papua New Guinea cases

Alleged Detention Manus Province, of persons seeking Asylum in Australia (2014) N5529
Alois Erebebe & Taros Togote v The State (2011) SC1135
Alois Erebebe & Taros Togote v The State (2013) SC1228
Ambrose Lati v The State (2015) SC1413
Applications by John Ritsi Kutetoa & 3 Others (2005) N2819
Arua Maraga Hariki v The State (2007) SC1320
Arua Maraga Hariki v The State, SCR No 12 of 2013, 29.08.07, unreported
Charles Bougapa Ombusu v The State [1996] PNGLR 335
Charles Bougapa Ombusu v The State [1997] PNGLR 699
Dr Theo Yasause v Kiddy Keko (2017) N6853
Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581
Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651
Mathias Goma v Protect Security & Communication Ltd (2013) SC1300
Nail Lamon v Snr Const Zakang Bumai (2008) N3468
Namah v Pato (2013) N4990
Namah v Pato (2014) SC1304
Namah v Pato, National Executive Council and The State (2016) SC1497
Pratt & Morgan v The Attorney-General for Jamaica [1993] UKPC 37; [1994] 2 AC 1
Re Alleged Brutal Treatment of Suspects (2014) N5512
Re Conditions of Detention at Beon Correctional Institution (2006) N2969
Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022
Re Conditions of Detention at Buka Police Lock-Up (2006) N4478
Re Conditions of Detention at Buka Police Lock-Up (2006) N4976
Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918
Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007
Re Release of Prisoners on Licence (2008) N3421
Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836
The State v Alphonse Hapot (No 1) (2015) N6455
The State v Alphonse Hapot (No 2) (2016) N6452
The State v Ambrose Lati (2009) N3740
The State v Arua Maraga Hariki (2002) N2331
The State v Arua Maraga Hariki (2003) N2332
The State v Ben Simakot Simbu (No 1) (2004) N2573
The State v Ben Simakot Simbu (No 2) (2004) N2546
The State v Eric Naks Lako & Keith Lasi Aira (2016) N6182
The State v Gregory Kiapkot, Martin Bigit, Tobung Paraide, Peter Taul & Botchia Agena (2011) N4381
The State v Kenny Wesley (2011) N4609
The State v Kepak Langa (No 1) (2003) N2461
The State v Kepak Langa (No 2) (2003) N2462
The State v Louie Efi & Joshua Kaluvia (2016) N6454
The State v Mark Poroli (2004) N2655
The State v Sedoki Lota & Fred Abenko (2007) N3183
The State v Selmon Amos & Misialis Amos (No 2) (2012) N5072
The State v Selmon Amos & Misialis Amos (No 3) (2012) N5073
The State v Tanedo [1975] PNGLR 395
The State v Transferees (2014) SC1348
The State v Transferees (2015) SC1451

Overseas Cases

Henfield v The Attorney-General of the Commonwealth of the Bahamas [1997] AC 413

INQUIRY

This was an inquiry by the National Court under Section 57 of the Constitution into the human rights of prisoners sentenced to death.

Counsel:

L Kalinoe, for the first Respondent, the Principal Legal Adviser (& Attorney-General)
E Wurr, for the second Respondent, the Public Solicitor
R Auka, for the third Respondent, the Public Prosecutor
C Piandi, for the fourth Respondent, the Commissioner of the Correctional Service
W Hagahuno, for the fifth Respondent, the Registrar of the National Court & the Supreme Court

12^th October, 2017

1. CANNINGS J: I have conducted an inquiry into the human rights of prisoners sentenced to death in Papua New Guinea. I have called the proceedings, which remain at all times proceedings of the National Court, an “inquiry” as the procedure adopted has been inquisitorial rather than adversarial in nature. The principal purposes of the inquiry have been to:

• identify which prisoners have been sentenced to death;
  
• identify what human rights they have and whether those rights have been afforded to them; and in particular
  
• examine the role of the Advisory Committee on the Power of Mercy.
  

2. In this judgment I use the term ‘human rights’ interchangeably with the terms ‘constitutional rights’ and ‘basic rights’. These words mean the same thing. They refer to the rights conferred on all citizens, and in some cases non-citizens, by Division III.3 (basic rights) of the Constitution (Re Conditions of Detention at Buka Police Lock-Up, Autonomous Region of Bougainville (2006) N4478). I sometimes use the phrase ‘on death row’ to describe prisoners facing the sentence of death as that is a common colloquialism widely understood.

3. I have not reviewed decisions of the National Court or the Supreme Court to impose the sentence of death in any case. Nor have I reviewed the appropriateness of the death penalty as a criminal sanction. This judgment is a report on my inquiry. It is set out as follows:

1. Does the Court have jurisdiction to conduct this inquiry?
   
2. What court procedures have been used?
   

100. What offences attract the death penalty?
     

4. What is the method of execution of a person sentenced to death?
   
5. Who has been sentenced to death?
   
6. What human rights do prisoners sentenced to death have?
   
7. What is the role of the Advisory Committee on the Power of Mercy?
   
8. What is the present status of those on death row?
   
9. Are the human rights of prisoners sentenced to death being afforded to them?
   
10. What declarations or orders should be made?
    
1. DOES THE COURT HAVE JURISDICTION TO CONDUCT THIS INQUIRY?
   

4. I raise this as the first issue because Dr Kalinoe submitted on behalf of the Attorney-General that I lacked jurisdiction. He relied on dicta of the three Judges (Sakora J, Gavara-Nanu J and Ipang J) of the Supreme Court in The State v Transferees (2015) SC1451 to argue that:

• the National Court (and also the Supreme Court) cannot commence proceedings on its own initiative;
• the National Court cannot conduct proceedings using inquisitorial procedures – it must use adversarial procedures;
• the National Court cannot conduct an inquiry;
• Section 57(1) of the Constitution – which I rely on as the source of jurisdiction to commence the proceedings – only allows the Court to enforce human rights on its own initiative in the context of existing court proceedings, commenced by a party, not by the Court;
• Order 23, Rule 8 (commencement of proceedings by the court) and Form 126 of the National Court Rules – other laws I have invoked in commencing these proceedings – are contrary to the intent and spirit of Section 57 of the Constitution and are unconstitutional;
• commencement of these proceedings is an abuse of process;
• this inquiry should be abandoned.
  

5. Dr Kalinoe properly relied on the Transferees decision to argue for the abandonment of the proceedings, as the Judges emphatically expressed the view that the National Court lacks power to commence proceedings on its own initiative. However I do not propose to follow that view, for four reasons. First it was obiter dicta. Secondly, there is no other Supreme Court decision in support of it. Thirdly, I consider it, with respect, to be wrong in law. Fourthly, where human rights are involved, it can be and in this case is necessary for the Court to take the initiative.

1 Obiter dicta. The Transferees decision was obiter because the members of the Supreme Court commented on an issue that was not before them. Their Honours stated that the National Court lacked jurisdiction to conduct an inquiry into whether any of the transferees being accommodated at the Manus Island Regional Processing Centre had any human rights. But that was not the issue.

6. The matter before the Supreme Court was an appeal against my refusal to disqualify myself from conducting the proceedings (Alleged Detention Manus Province, of persons seeking Asylum in Australia (2014) N5529). The grounds of appeal were centred on alleged breaches of the principles of natural justice, on my part, as the primary Judge. It was argued in the Supreme Court that there was apprehended bias arising from the manner in which I had conducted the proceedings, my appointment of a personal friend as an expert witness and prejudgment of the issues I had made the subject of inquiry (due to my earlier decision in Namah v Pato (2013) N4990).

7. None of the grounds of appeal was about lack of jurisdiction or error of law by using inquisitorial procedures or conducting the proceedings as an inquiry. It would have been hard to make those issues proper grounds of appeal as they were not raised in the National Court. It was not suggested by any of the parties to the National Court proceedings, including the State, that I had unlawfully commenced proceedings on the own initiative of the National Court under Section 57(1) of the Constitution. It was the manner in which I conducted the proceedings – not the manner in which I commenced them – with which issue was taken.

8. Everything the Judges of the Supreme Court said about lack of jurisdiction was unnecessary to determination of the appeal. It was also unnecessary for the Judges to rule on the constitutionality of Order 23, Rule 8 and Form of the National Court Rules. Gavara-Nanu J went so far as to “declare” these provisions of the Rules “unconstitutional”. The constitutionality of those provisions was not an issue before the Supreme Court. How could his Honour authoritatively rule on it? And how could Sakora J endorse Gavara-Nanu J’s declaration without commenting on the irony arising from their Honours being amongst the group of Judges that made the Human Rights Rules in December 2010, which amended the National Court Rules by adding these provisions?

9. The three Judges delivered separate judgments. Each upheld the grounds of appeal. Each held that I had offended against the principles of natural justice and ordered that the inquiry was null and void. As what their Honours said about lack of jurisdiction was obiter, it is persuasive authority only. It is not binding on the National Court (Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581, Mathias Goma v Protect Security & Communication Ltd (2013) SC1300). I am obliged to have close regard to what their Honours said. I have done that, but I am not obliged to follow it.

2 Unprecedented decision. The decision in the Transferees case was the first time the Supreme Court had held that the National Court cannot commence proceedings on its own initiative. By the same token, the Supreme Court has not expressly stated that the National Court can commence proceedings on its own initiative. The reason for the lack of comment is, I suggest, that the issue has not arisen before. The reason it has not arisen is that Section 57(1) of the Constitution uses straightforward language:

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.]

10. It had not been contemplated that Section 57(1) does not mean what it says. I did not contemplate such an interpretation when – without challenge by any person or authority – I commenced a number of human rights enforcement proceedings using the own initiative power in Section 57(1). See, for example: Re Conditions of Detention at Beon Correctional Institution (2006) N2969; Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022; Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918; Re Conditions of Detention at Buka Police Lock-Up (2006) N4478; Re Conditions of Detention at Buka Police Lock-Up (2006) N4976; Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007; Re Release of Prisoners on Licence (2008) N3421; Re Alleged Brutal Treatment of Suspects (2014) N5512.

3 Wrong in law. With respect, I am in disagreement with the opinion of the Judges in the Transferees case. Their Honours in my view fundamentally misinterpreted Section 57(1). Their Honours made a decision that in my respectful opinion was wrong in law.

11. Their Honours, with respect, failed to take heed of the injunction in Section 57(1) that “a right or freedom referred to in this Division” – the human rights referred to as Basic Rights, conferred by Division III.3 of the Constitution – “shall be protected by ... the National Court”. The National Court and the Supreme Court – which means Judges of those Courts – are obliged to protect and enforce human rights.

12. Sometimes this has to be done on the “own initiative” of the Court. Sometimes a Judge considers it necessary to do so, by commencing proceedings as an inquiry. There is no injunction against that. Only a reactionary approach, hidebound to, enslaved by, the adversarial, common law tradition, and a failure to appreciate the bold and innovative vision for judicial decision-making called for by the Constitution, stand in the way of taking the initiative.

13. As the Supreme Court emphasised in Namah v Pato (2014) SC1304 the Constitutional Laws of Papua New Guinea are not simply statements of general principle. They impose and confer real and enforceable powers, functions, duties and responsibilities, and rights and obligations, which exist by operation of the Constitution, without the need for supporting, machinery or procedural laws to bring them into effect.

14. Papua New Guinea’s Constitution enshrines a number of human rights, also known as Basic Rights and constitutional rights. They are principally drawn from the United Nations Universal Declaration of Human Rights. They are conferred by the following sections of the Constitution:

• right to freedom (s 32);
• right to life (s 35);
• protection from inhuman treatment (s 36);
• protection of the law (s 37);
• proscribed acts (s 41);
• liberty of the person (s 42);
• freedom from forced labour (s 43);
• freedom from arbitrary search and entry (s 44);
• freedom of conscience, thought and religion (s 45);
• freedom of expression (s 46);
• freedom of assembly and association (s 47);
• freedom of employment (s 48);
• right to privacy (s 49);
• right to vote and stand for public office (s 50);
• right to freedom of information (s 51);
• right to freedom of movement (s 52);
• protection from unjust deprivation of property (s 53);
• equality of citizens (s 55).
  

15. These are not paper rights or mere expressions of principle (Nail Lamon v Snr Const Zakang Bumai (2008) N3468). These are justiciable, legal rights. They can be enforced in the National Court and the Supreme Court, primarily under Section 57, but also under Sections 11, 22, 23 and 155(4) of the Constitution.

16. Sections 22 and 23 are specifically directed at the National Court. The message is that the National Court has an obligation to ensure that the Basic Rights are put into effect. These provisions oblige and authorise the National Court, if it identifies a case of apparent breach of Basic Rights, to act on its own initiative to protect and enforce them. If it is satisfied that Basic Rights have been breached, it is empowered to:

• make ‘all such orders and declarations as are necessary or appropriate’ for the purpose of protecting and enforcing the Basic Rights (s 57(3)); and
  
• supply any lack of supporting, machinery or procedural laws to ensure that the Basic Rights are ‘not left without effect’ (s 22); and
  
• if it ‘thinks it proper to do so’, make ‘any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty’ imposed on a person who has breached the Basic Rights of others (s 23(2)); and
  
• make, in such circumstances as seems to it proper, such orders ‘as are necessary to do justice in the circumstances of the particular case’ (s 155(4)).
  

17. The full text of these important enforcement provisions is set out as follows.

Section 11(2) (Constitution as supreme law) states:

The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

Section 22 (enforcement of the Constitution) states:

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.

Section 23 (sanctions) states:

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or

(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

Section 57(3) (enforcement of guaranteed rights and freedoms) states:

A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

Section 155(4) (the National Judicial System) states:

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.

4 Necessity. When human rights breaches are detected or believed to have occurred, it is often important to act quickly, and to take the initiative, to determine whether any breaches of human rights have occurred and if so, take remedial action. That was the situation in February 2014. I decided to use the own initiative power in Section 57(1) of the Constitution to commence proceedings to conduct an inquiry, HROI No 1 of 2014, into whether the transferees (also known as ‘asylum seekers) being accommodated at the Manus Island Regional Processing Centre had any human rights; and if they did, whether their rights were being infringed. In mid-February 2014 there was a riot at the Centre. One of the transferees accommodated at the Centre, a Kurdish Iranian man, Reza Barati, died. There was a crisis.

18. I waited for one of the transferees or an organisation acting on their behalf to make an application for enforcement of human rights. However, I decided not to wait any longer. I decided that it was necessary to act quickly on the own initiative of the Court. By mid-March 2014 I was on the ground in Manus, conducting court proceedings, hearing evidence from the transferees and inspecting the conditions in which they were accommodated. At the outset I announced that the purposes of the proceedings were threefold, to determine: (1) What human rights the transferees had, if any? (2) Whether those rights, if any, were being, administered to them? (3) If not, what orders and declarations should the Court make to protect and enforce those rights?

19. I was not allowed to determine any of those issues. An ex parte interim stay order was granted in Waigani by Makail J, sitting as a single Judge of the Supreme Court, on the last day of the hearings in Manus. His Honour later extended the stay after an inter partes hearing (The State v The Transferees (2014) SC1348). That proved to be the end of my inquiry as the final decision of the Supreme Court, delivered in August 2015, granted a permanent stay of the proceedings.

20. The views of the Judges of the Supreme Court were strongly expressed. Sakora J stated that I made a “grievous error” in commencing the inquiry. Gavara-Nanu J held that I “wrongly invoked” the own initiative powers in Section 57 of the Constitution. Ipang J said the National Court was “wrong to approach the proceedings as an inquiry”. Notwithstanding the strength of the criticism, I still consider, three years after those tumultuous events, that I was right. I properly invoked the own initiative powers of the National Court. I simply did what I was required to do by the Constitution. I considered at the time that it was necessary to do it.

21. It is important that Judges retain this power. And exercise it when they see it is necessary to do so. They can then discharge the obligation – and do as the Constitution implores them to do – to protect and enforce human rights.

22. Two subsequent court proceedings in PNG have shed further light on the significance of the human rights issues the subject of the inquiry. This is quite apart from the litigation in Australia which has evidently resulted in the Commonwealth of Australia agreeing to pay a large out-of-court settlement of claims by the Manus transferees as compensation for human rights breaches arising from their unlawful detention.

23. In 2015 two PNG security guards were convicted by the National Court, (Kirriwom J) after trial, of the murder of Reza Barati and sentenced, in 2016, to ten years imprisonment each (The State v Louie Efi & Joshua Kaluvia (2016) N6454).

24. In April 2016 the Supreme Court ruled that the detention of the transferees at the Manus Island Regional Processing Centre was a violation of their right to personal liberty under Section 42 of the Constitution and that the arrangements made between the governments of Papua New Guinea and Australia were unconstitutional (Namah v Pato, National Executive Council and the State (2016) SC1497: Salika DCJ, Kandakasi J, Kariko J, Sawong J and Higgins J).

Summary

25. The argument that the National Court lacks jurisdiction to commence human rights proceedings on its own initiative and to conduct proceedings as an inquiry and that this inquiry should be abandoned, is rejected.

2. WHAT PROCEDURES HAVE BEEN USED BY THE COURT?
   

26. This inquiry was commenced in accordance with Order 23, Rule 8 (commencement of proceedings by the court) of the National Court Rules, which states:

(1) Where a Judge observes, or is informed by the Registrar or Sheriff or one of their officers, of a fact or matter which may constitute a breach of Basic Rights, the Court may commence proceedings on its own initiative.

(2) Where the National Court commences proceedings on its own initiative in accordance with Section 57 of the Constitution –

• (a) the file reference shall be “HROI” and the responding party, if any, shall be called “the respondent”; and
• (b) subject to this Rule, the originating process shall be in Form 126 or in such other terms as the Court considers appropriate.
  

(3) Nothing in these Rules derogates from the power and duty of the National Court under Section 57(1) of the Constitution to, on its own initiative, enforce the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution in an informal or such other manner that the Court thinks fit, especially in urgent cases where it is not practical to comply with formal requirements for commencement of proceedings.

(4) Where the Court exercises a power under Sub-rule (3), the Court shall ensure that as soon as the circumstances permit, not being later than seven days after the exercise of such power, an originating process in Form 126 or in such other terms as the Court considers appropriate is filed and served on the respondents.

27. The originating process, bearing the file reference HROI No 2 of 2014, was issued in Form 126 of the National Court Rules, in the following terms:

THE NATIONAL COURT:

• having taken judicial notice of the fact that in recent years a number of prisoners have been sentenced to death, following conviction of offences for which the penalty of death is prescribed by law, and that none of those sentences have yet been executed; and
  
• acknowledging that the penalty of death is a significant and extreme criminal sanction; and
  
• being aware of the controversy in the community about the appropriateness and viability of executing the sentences; and
  
• taking into account that in Papua New Guinea all persons, including those sentenced to death, have certain human rights; and
  
• observing that there are certain laws that confer rights and obligations in regard to prisoners who are sentenced to death and special laws that are available to be invoked by or on behalf of those who are sentenced to death; and
  
• having regard to the need to ensure that those rights are fully available; and
  
• noting that it is not in the public domain, nor is it clearly apparent to the Court, that those laws are in fact being enforced; and
  
• being conscious of the Court’s duty under Section 57(1) of the Constitution to protect the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution; and
  
• being of the view that the decision to execute a death sentence against any person condemned to death is of the most profound nature, which should only be made and implemented after the human rights of the condemned person are fully enforced; and
  
• observing that no other person or authority appears to have a sufficient knowledge of and interest in the human rights implications of executing the death sentence to warrant commencement of similar proceedings,
  

has decided that it is necessary and appropriate to act on its own initiative, and accordingly –

COMMENCES THESE PROCEEDINGS on its own initiative to enforce the guaranteed rights and freedoms of those prisoners who have been sentenced to death, those guaranteed rights and freedoms including:

• the right to life under Constitution, Section 35;
  
• the right to freedom from inhuman treatment under Constitution, Section 36(1);
  
• the right to the full protection of the law under Constitution, Section 37(1);
  
• the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37(17);
  
• the right of any person who is detained to complain to the National Court that he or she is unlawfully or unreasonably detained, under Constitution, Section 42(5),
  

AND INDICATES that it is not the purpose of these proceedings to review decisions of the National Court or the Supreme Court to impose the sentence of death in any case, nor is it the purpose to review the appropriateness or viability of the death penalty as a criminal sanction, but THAT IT IS THE PURPOSE OF THESE PROCEEDINGS:

(1) to identify the nature and extent of the guaranteed rights and freedoms of those prisoners who have been sentenced to death; and

(2) to inquire into whether those rights and freedoms have been or are being enforced and protected; and

(3) in cases of actual or imminent or a reasonable probability of infringement of those rights and freedoms, to consider making orders and declarations and granting other relief under Sections 57 or 58 of the Constitution as are necessary or appropriate,

AND IN PARTICULAR:

(4) to identify the protections afforded to prisoners sentenced to death by the laws of Papua New Guinea including the following laws, and to inquire into whether such protections have been and are being enforced:

• the Constitution, Subdivision VI.4.D (the power of mercy);
  
• the Organic Law on the Advisory Committee on the Power of Mercy;
  
• the Criminal Code, Sections 597 (sentence of death), 598 (recording sentence of death), 599 (pregnant women) and 614 (execution of sentence of death);
  
• the Correctional Service Regulation, Sections 105 (conditions for detainees sentenced to death) and 106 (commanding officer’s duties),
  

AND ACCORDINGLY it is anticipated that the Court will, after consulting the parties to the proceedings, require the cooperation of a number of persons and authorities in providing documents and other information pertaining to the purpose of these proceedings, and answering relevant questions, including:

(a) Who are the prisoners who have been sentenced to death? (And in relation to each of those prisoners: all official records regarding their conviction and sentence and place of detention will be required to be furnished to the Court.)

(b) In relation to the Advisory Committee on the Power of Mercy:

• (i) Is that Committee operating and exercising the powers, functions, duties and responsibilities conferred on it by Subdivision VI.4.D of the Constitution and the Organic Law on the Advisory Committee on the Power of Mercy?
  
• (ii) Who are the members of the Advisory Committee on the Power of Mercy and who is the Chairman?
  
• (iii) When do the terms of appointment of the members expire?
  
• (iv) Has the Committee, since reintroduction of the death penalty in 1991, provided a report to the National Executive Council under Section 152(2) of the Constitution in regard to any prisoner who has been sentenced to death?
  
• (v) Has the Committee considered, in relation to any prisoner sentenced to death, that the prisoner should be granted a pardon, a remission or commutation of sentence, a respite of execution of sentence or a less severe form of punishment?
  
• (vi) Has the National Executive Council, since 1991, given advice to the Head of State as to the exercise of the power of mercy in relation to any prisoner sentenced to death?
  
• (vii) Has the Head of State, since 1991, exercised the power of mercy in relation to any prisoner sentenced to death?
  

(c) In relation to each prisoner sentenced to death:

• (i) Is he being detained in a way that meets the human rights standards guaranteed by the Constitution?
  

(ii) Are the conditions of detention compliant with Sections 105 (eg the detainee condemned to death shall be placed in a cell alone, be observed at all times, receive access to an area in the open air suitable for exercise for a total of no less than three hours each day) and Section 106 (eg that he has access to a legal adviser when requested) of the Correctional Service Regulation?

(iii) Is he presently legally represented?

(iv) If he has no legal adviser, should the Court direct the Public Solicitor under Section 177(2)(b) of the Constitution to provide him with legal aid, advice and assistance?

(v) Is there any appeal or review or other legal process pending, which has the effect of staying execution of the sentence of death?

(vi) Has the mode of execution of the death sentence (hanging, lethal injection, medical death, firing squad or electrocution) been determined under Section 614(1) of the Criminal Code?

(vii) Has the time and place of the prisoner’s execution been appointed under Section 614(2) of the Criminal Code?

AND FOR THE PURPOSES OF THESE PROCEEDINGS THE FOLLOWING PERSONS ARE UNDER SECTION 57(3) OF THE CONSTITUTION SUMMONED TO APPEAR IN PERSON OR BY THEIR DULY APPOINTED PERSONAL OR LEGAL REPRESENTATIVE BEFORE THE NATIONAL COURT AT WAIGANI ON 29 MAY 2015 AT 9.30 AM so that the National Court may inquire into this matter and determine whether it is necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under Section 57(3) of the Constitution:

1. the Principal Legal Adviser to the National Executive;
2. the Public Solicitor;
3. the Public Prosecutor;
4. the Commissioner of the Correctional Service; and
5. the Registrar of the National Court,
   

AND TAKE NOTICE that failure by any person summoned to comply with this order may be deemed to be contempt of court and expose the person who fails to comply to the sanctions of the criminal law, including arrest, fine and/or imprisonment,

AND FURTHERMORE take notice that any person who claims a legitimate and genuine interest in this matter is invited to appear before the National Court and seek the leave of the Court to be joined in these proceedings.

DATED THIS 26^TH DAY OF MAY 2015

JUSTICE CANNINGS

A JUDGE OF THE NATIONAL COURT OF JUSTICE

28. The following office-holders were joined to the proceedings and named as respondents:

• first respondent, the Principal Legal Adviser (& Attorney-General);
• second respondent, the Public Solicitor;
• third respondent, the Public Prosecutor;
• fourth respondent, the Commissioner of the Correctional Service;
• fifth respondent, the Registrar of the National Court and the Supreme Court.
  

29. All of the respondents cooperated and assisted the Court. Each respondent provided counsel and each counsel was diligent in tendering evidence and information and making submissions to the Court. This includes the Principal Legal Adviser and Attorney-General who argued vigorously but unsuccessfully that the inquiry should be abandoned.

30. The task of identifying which prisoners have been sentenced to death and which prisoners have had their sentences commuted on appeal or review and who is in custody and where and who is alive and what stage of the appeal and review process each prisoner’s case is at, was difficult and time-consuming. None of the respondents had all of that information in their possession or control.

Summary

31. Inquisitorial, not adversarial, procedures have been used in these proceedings.

100. WHAT OFFENCES ATTRACT THE DEATH PENALTY?
     

32. The modern history of the death penalty in Papua New Guinea begins in 1991 when the Parliament amended the Criminal Code to make the sentence of death available, at the discretion of the sentencing Judge, for four offences:

• aggravated piracy (Criminal Code, Section 81);
• attempted piracy with personal violence (Criminal Code, Section 82);
• treason (Criminal Code, Section 37);
• wilful murder (Criminal Code, Section 299).
  

33. The full text of those Criminal Code provisions follows.

Section 81 (punishment of piracy) states:

(1) A person who, within the territorial jurisdiction of Papua New Guinea, commits piracy [which is defined in Section 80 of the Criminal Code] is guilty of a crime.

Penalty: Subject to Subsection (2) and to Section 19, imprisonment for life.

(2) If piracy is committed with respect to a ship, and if at or immediately before or immediately after the time of committing the crime the offender—

(a) assaults any person on board of or belonging to the ship, with intent to kill him or to kill any other person; or

(b) wounds any such person; or

(c) unlawfully does any act by which the life of any such person is endangered,

the offender is liable to the punishment of death.

Section 82 (attempted piracy with personal violence) states:

A person who, within the territorial jurisdiction of Papua New Guinea, with intent to commit the crime of piracy with respect to a ship—

(a) assaults any person on board, or belonging to, the ship, with intent to kill him or to kill any other person; or

(b) wounds any such person; or

(c) unlawfully does any act by which the life of any such person is endangered,

is guilty of a crime,

Penalty: Death.

Section 37 (treason) states:

A person who—

(a) kills the Queen and Head of State, or does Her any bodily harm tending to Her death, maiming, wounding, imprisonment or restraint; or

(b) kills the eldest son and heir-apparent for the time being of the Sovereign, or, if the successor, by virtue of Section 83 of the Constitution (Queens successors), to the Queen and Head of State is a male, the Queen Consort of the reigning King; or

(c) forms an intention to do an act referred to in Paragraph (a) or (b), and manifests such intention by any overt act; or

(d) conspires with any other person to kill the Queen and Head of State or to do Her any bodily harm tending to Her death, maiming, wounding, imprisonment or restraint; or

(e) levies war against the Queen and Head of State—

(i) with intent to depose the Queen and Head of State from the style, honour, and royal name of the Crown of the United Kingdom of Great Britain and Northern Ireland, or of any other of Her Majesty's dominions; or

(ii) in order, by force or constraint, to compel the Queen and Head of State to change Her measures or counsels, or in order to put any force or constraint on, or to intimidate or overawe, any House of Parliament of any of Her Majesty's dominions; or

(f) conspires with any other person to levy war against the Queen and Head of State, with any intent or purpose referred to in Paragraph (e); or

(g) instigates a foreigner to make an armed invasion of any part of Her Majesty's dominions; or

(h) assists by any means whatever a public enemy at war with the Queen and Head of State; or

(i) violates, whether with her consent or not, a Queen Consort, or the wife of the eldest son and heir-apparent for the time being of the successor (being a male) of the Queen and Head of State,

is guilty of the crime of treason.

Penalty: Death.

Section 299 (wilful murder) states:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

34. In 2013 the Parliament passed the Criminal Code (Amendment) Act No 6 of 2013, which commenced operation on 18 September 2013. Two new offences attracting the death penalty were created:

• aggravated rape (Criminal Code, Section 347C);
• wilful murder of a person on account of accusation of sorcery (Criminal Code, Section 299A).
  

35. In the same Amendment Act, the Parliament increased the maximum sentence available for a person convicted of armed robbery under Section 386 of the Criminal Code from life imprisonment to death.

36. The full text of those new and amended provisions of the Criminal Code follows.

Section 347C (aggravated rape) states:

Any person who sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement, without consent —

(a) whilst armed with a dangerous weapon or offensive weapon or instrument; or

(b) in company with one or more other persons; or

(c) causes grievous bodily harm to a person, before, after, or in the course of the offence; or

(d) of the victim a child under the age of 10 years,

is guilty of the crime of aggravated rape and shall be sentenced to death.

Section 299A (wilful murder of a person on account of accusation of sorcery) states:

(1) Any person who intentionally kills another person on account of accusation that the person is practicing sorcery, is guilty of wilful murder and shall be sentenced to death.

(2) For purposes of Subsection (1), "sorcery" includes (without being exhaustive and exclusive) what is known, in various languages and parts of the country, as witchcraft, magic, enchantment, puripuri, mura mura dikana, vada, mea mea, sanguma, or malira, whether or not connected with or related to the supernatural.

Section 386 (the offence of robbery) states:
.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable to be sentenced to death.

37. There have been no amendments to the death penalty provisions of the Criminal Code since 2013.

Summary

38. There are seven offences that attract the death penalty:

• aggravated piracy (Criminal Code, Section 81);
• aggravated rape (Criminal Code, Section 347C);
• armed robbery (Criminal Code, Section 386);
• attempted piracy with personal violence (Criminal Code, Section 82);
• treason (Criminal Code, Section 37);
• wilful murder (Criminal Code, Section 299);
• wilful murder of a person on account of accusation of sorcery (Criminal Code, Section 299A).
  

4. WHAT IS THE METHOD OF EXECUTION OF A PERSON SENTENCED TO DEATH?
   

39. From 1991 to 2013 the only method of execution was hanging, pursuant to Sections 597 and 614(1) of the Criminal Code.

Section 597 (sentence of death) stated:

Subject to Section 598, the sentence to be pronounced on a person who is convicted of a crime punishable with death is that he be returned to his former custody, and that at a time and place to be appointed by the Head of State, acting on advice, he be hanged by the neck until he is dead.

Section 614 (execution of sentence of death) stated:

The punishment of death shall be carried out by hanging the offender by his neck until he is dead.

40. By the Criminal Code (Amendment) Act No 6 of 2013 the Parliament amended Sections 597 and 614(1) to provide four additional methods of execution.

Section 597 (sentence of death) now states:

Subject to Section 598, the sentence to be pronounced on a person who is convicted of a crime punishable with death is that he be returned to his former custody, and that at a time and place to be appointed by the Head of State, acting on advice, on the mode of execution of the death sentence from any one of those stated under Section 614(1). [sic]

Section 614(1) (execution of sentence of death) now states:

The punishment of death shall be carried out by any one of the following methods as determined by the Head of State, acting on advice from the National Executive Council:

(a) hanging the offender by the neck until the person is dead; or

(b) administration of anaesthetics followed by lethal injection; or

(c) medical death through administration of anaesthetic and deprivation of oxygen; or

(d) death by firing squad;

(e) or electrocution.

41. It was only the law as to the offences that attract the death penalty and as to the method of execution that were changed by the Criminal Code (Amendment) Act No 6 of 2013. Other laws dealing with execution, including the time and place of execution, witnessing of an execution, special laws relating to women sentenced to death and burial of an executed person’s body, remain unchanged. These unamended provisions are set out below.

The Criminal Code, Section 599 (pregnant women) states:

(1) When sentence of death is passed on a woman, she may apply for an order to stay execution on the ground that she is pregnant.

(2) If an application is made under Subsection (1), the court shall direct one or more medical practitioners to be sworn to examine the woman in some private place either together or successively, and to ascertain whether or not she is pregnant.

(3) If on the report of an examination conducted in pursuance of a direction under Subsection (2), verified on oath, it appears that the woman is pregnant, the court shall order that execution of the sentence be postponed until—

(a) she is delivered of a child; or

(b) it is no longer possible in the course of nature that she should be so delivered.

The Criminal Code, Sections 614(2) to (8) (execution of sentence of death) state:

(2) The time and place of execution shall be appointed by the Head of State, acting on advice.

(3) The Sheriff, or a Sheriff's officer appointed by the Sheriff, shall be present at the execution.

(4) The officer-in-charge and the proper officers of the corrective institution (including the visiting medical officer), all justices who wish to be present, and such members of the Police Force as the Sheriff or Sheriff's officer allow may also be present.

(5) All the persons attending the execution shall remain in the enclosure until the execution has been carried out according to law, and until the visiting medical officer has signed a certificate in the following form—

"I, ... , the visiting medical officer of the ... Corrective Institution, certify that I have today witnessed the execution of ... , lately, as I am informed, convicted and duly sentenced to death by the National Court and I further certify that he was, in pursuance of the sentence, hanged by the neck until he was dead.

Dated ... 19 [sic].

Visiting Medical Officer."

(6) The Sheriff or Sheriff's officer, the officer-in-charge and officers of the corrective institution, and the members of the Police Force who are present shall sign, before leaving the corrective institution, a declaration in the following form adding their description—

"We declare and testify that we were this day present when the extreme penalty of the law was executed on ..., lately, as we are informed, convicted by the National Court, and duly sentenced to death on ... 19 [sic], and that he was, in pursuance of the sentence, hanged by the neck until he was dead.

(Signatures of Witnesses.)"

(7) Every certificate and declaration under this section shall be transmitted by the Sheriff, Sheriff's officer, or deputy of the Sheriff, whichever of them is present at the execution, to the Registrar of the National Court and shall be entered and kept in his office as a record of the Court, and a copy of it is to be twice published in the National Gazette.

(8) The body of the offender shall be buried at such place as the Head of State, acting on advice, directs.

Summary

42. There have been no amendments to the death penalty provisions of the Criminal Code since 2013. There are now five alternative methods of execution of a prisoner who has been sentenced to death:

• deprivation of oxygen;
• electrocution;
• firing squad;
• hanging;
• lethal injection.
  

The manner of execution, along with the time and place of execution, are determined by the Head of State, acting on advice, ie by the National Executive Council.

E WHO HAS BEEN SENTENCED TO DEATH?
43. There are presently 14 prisoners sentenced to death. Their names and details are set out in table 1. There were nine others sentenced to death since reintroduction of the death penalty in 1991. Their names and details are set out in table 2. These are prisoners who have died awaiting execution or whose Supreme Court appeals or reviews were successful. The following information is based on evidence tendered in these proceedings, together with judicial notice taken of matters in the public domain or official records of the Correctional Service and the Registrar of the National Court and the Supreme Court.

TABLE 1: PRISONERS UNDER SENTENCE OF DEATH

TABLE 2: PRISONERS ORIGINALLY SENTENCED TO DEATH,
BUT NO LONGER UNDER SENTENCE OF DEATH

Summary

44. Twenty-three persons have been sentenced to death since reintroduction of the death penalty in 1991. All 23 are male. All 23 were convicted of wilful murder. None has been executed. Fourteen remain under sentence of death. Nine are no longer under that sentence due to their death in custody or their sentence being commuted on appeal or review by the Supreme Court.

6. WHAT HUMAN RIGHTS DO PRISONERS SENTENCED TO DEATH HAVE?
   

45. The Constitution does not confer any special or extra human rights on prisoners who are sentenced to death. However, there are some human rights which, while protecting all persons in Papua New Guinea, have an acute resonance when a person is detained in custody awaiting execution.

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.

Section 37(1) (protection of the law) states:

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.

Section 37(15) (protection of the law) states:

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

Section 37(17) (protection of the law) states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Section 41 of the Constitution (proscribed acts), which states:

(1) 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.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

46. I reiterate that these rights are intended to be real and enforceable. This is made clear by the Preamble to the Constitution, which includes these pertinent statements:

WE HEREBY ACKNOWLEDGE that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:—

(a) life, liberty, security of the person and the protection of the law; and

(b) the right to take part in political activities; and

(c) freedom from inhuman treatment and forced labour ... [Emphasis added.]

47. I will now focus on two sets of laws that have a special relevance to prisoners sentenced to death:

• Sections 105 and 106 of the Correctional Service Regulation; and
• Subdivision VI.4.D (the power of mercy) of the Constitution.
  

48. Sections 105 and 106 of the Correctional Service Regulation confer on prisoners sentenced to death a right to special care and treatment. Subdivision VI.4.D (the power of mercy) of the Constitution provides for establishing a system for exercise of the right (which is available to all persons under any form of criminal penalty) to apply to the Executive arm of government for exercise of the power of mercy.

49. These laws do not expressly confer human rights. However, as a prisoner sentenced to death is entitled to the “full protection of the law” under Section 37(1) of the Constitution, these are tantamount to human rights laws, capable of protection and enforcement as if they were in the Constitution (Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651; Dr Theo Yasause v Kiddy Keko (2017) N6853).

Correctional Service Regulation

50. The Correctional Service Regulation, Section 105 (conditions for detainees condemned to death) states:

Every detainee who has been condemned to death shall:—

(a) be placed in a cell alone; and

(b) be observed at all times; and

(c) receive access to an area in the open air suitable for exercise for a total of no less than three hours each day; and

(d) be medically examined by a medical practitioner at least once every 14 days; and

(e) be entitled to receive no less than two visits of one half hour duration every week, and as many as the Commanding Officer should approve in excess of those two during the first 7 days after being condemned to death; and

(f) be provided with individually prepared food of no less than the standard, type and quantity provided to a detainee not condemned to death; and

(g) be supervised by correctional officers approved by the Commissioner; and

(h) be provided with access to the Chaplain of a religion of the detainee's choice on request; and

(i) have access to books and radio.

51. The Correctional Service Regulation, Section 106 (commanding officer’s duties) states:

The Commanding Officer of a correctional institution where a detainee condemned to death is contained shall ensure that—

(a) no correctional officer observes a detainee condemned to death for more than 2 hours consecutively; and

(b) every effort is made to ensure that a detainee has access to his legal advisers when requested by the detainee or the legal adviser.

Subdivision VI.4.D (the power of mercy) of the Constitution

52. It contains just two sections: 151 and 152. Section 151 (grant of pardon etc) of the Constitution states:

(1) Subject to this Subdivision, the Head of State [ie the Governor-General, per Constitution, s 82(2), Schedule 1.20(a)(iii)], acting with, and in accordance with, the advice of the National Executive Council, may grant to a person convicted of an offence or held in penal detention under a law of Papua New Guinea—

(a) a pardon, either free or conditional; or

(b) a remission or commutation of sentence; or

(c) a respite of the execution of sentence; or

(d) a less severe form of punishment for that imposed by any sentence,

and may remit or refund, in whole or in part, any fine, penalty or forfeiture paid or payable to a governmental body.

(2) Where an offence has been committed, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may grant a pardon, either free or conditional, to an accomplice who gives evidence that leads to the conviction of a principal offender.

(3) Except in a case referred to in Subsection (2) or as otherwise permitted by or under an Act of the Parliament, the exercise of the power conferred by Subsection (1) shall not be held out, offered or promised in advance of conviction.

(4) Nothing in this section prevents the establishment by law of systems of probation, parole or release on licence, or any similar systems.

Section 152 (Advisory Committee on the Power of Mercy) states:

(1) An Organic Law shall make provision for and in respect of an Advisory Committee on the Power of Mercy, and for and in respect of its appointment, constitution, powers and procedures.

(2) Before giving any advice to the Head of State under Section 151(1) (grant of pardon, etc.), the National Executive Council shall consider a report from the Advisory Committee.

Summary

53. The most significant human rights of prisoners sentenced to death are:

• the right to freedom from inhuman treatment (Constitution, Section 36(1));
  
• the right to the full protection of the law (Constitution, Section 37(1)), which means that prisoners sentenced to death are entitled to special treatment in custody under Sections 157 and 158 of the Correctional Service Regulation and are, along with all other prisoners, entitled to apply for exercise of the Executive power of mercy (Constitution, Sections 151 and 152);
  
• the right to have their conviction and sentence reviewed by the Supreme Court according to law (Constitution, Section 37(15));
  
• the right to be treated with humanity and respect for the inherent dignity of the human person (Constitution, Section 37(17));
  
• the right of protection against harsh or oppressive or other proscribed acts (Constitution, Section 41).
  

7. WHAT IS THE ROLE OF THE ADVISORY COMMITTEE ON THE POWER OF MERCY?
   

54. Section 152(1) of the Constitution provides for establishment of an Advisory Committee on the Power of Mercy. The Organic Law on the Advisory Committee on the Power of Mercy was made by the Constituent Assembly and came into operation on Independence Day, 16 September 1975. It contains two sections.

1. Advisory Committee on the Power of Mercy.

(1) An Advisory Committee on the Power of Mercy is hereby established.

(2) The Committee shall consist of—

(a) a lawyer; and

(b) a medical practitioner with experience in psychiatry; and

(c) a member of the National Parliament; and

(d) a Minister of religion; and

(e) a person with experience in community work,

appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council by notice published in the National Gazette.

(3) At least one of the members of the Committee shall be a woman.

(4) The Head of State, acting with, and in accordance with, the advice of the National Executive Council shall appoint one of the members to be the Chairman.

2. Powers, procedures, etc.

(1) For the purpose of Division III.4 (principles of natural justice) of the Constitution, the Advisory Committee is a quasi-judicial body.

(2) The Advisory Committee shall be given full and free access to all records relating to the offence which, and the offender whom, it is considering.

(3) All questions before a meeting of the Committee shall be decided in accordance with the majority of votes, but nothing in this Law prevents a minority of dissenting report being made.

(4) The Advisory Committee shall cause minutes of its meetings to be kept.

(5) Subject to this Law, the procedures of the Advisory Committee are as determined by it.

55. The term ‘power of mercy’ describes the power vested in the Executive arm of the National Government to decide, in a particular case, to lessen, soften or in some other way avoid the effect of a conviction and/or sentence imposed on an offender by the courts. This is done by the Governor-General under Section 151 (grant of pardon etc) of the Constitution, by granting a:

• pardon; or
• remission or commutation of sentence; or
• respite of execution of sentence; or
• less severe form of punishment.
  

56. The term ‘pardon’ is not defined by any law of Papua New Guinea. The legal effect of a pardon will depend on whether it is expressed to be free or conditional. It is not necessarily the same thing as an acquittal (The State v Tanedo [1975] PNGLR 395).

57. Though the Governor-General’s power of mercy is broad and can have the same effect as releasing a prisoner on licence, there are more limits on the exercise of this power than in the case of a release on licence by the Minister for Justice under the Criminal Code. The Governor-General, unlike the Minister for Justice, cannot exercise the power of mercy unilaterally. Two important constraints apply:

• first, the Governor-General can act only with and in accordance with the advice of the National Executive Council (Constitution, Sections 86(2), 151(1)); and
  
• secondly, the National Executive Council can only give advice to the Governor-General after considering a report from the Advisory Committee on the Power of Mercy, a five-member committee established under the Organic Law on the Advisory Committee on the Power of Mercy (Constitution, Section 152(2)).
  

58. The power of mercy provisions of the Constitution reflect the recommendations of the Constitutional Planning Committee (CPC), which recognised that the Executive arm of government has a critical role in correcting injustices that come to light with the passage of time. The CPC stated:

As a means of ensuring that the executive power of mercy is not used in an arbitrary way, we have recommended the establishment of an Advisory Committee on the Power of Mercy whose function it is to give advice to the Executive on most matters in respect of which that power may be used. ...

We recognise that it is important for the Executive to have the power to commute sentences of death, to grant pardons and to reduce sentences. This power is, of course, a normal one for any Executive. It enables the Government to rectify injustices which only become apparent after the time for an appeal against a conviction or sentence has passed. ...

We are, however, concerned to try to ensure that the power of mercy is exercised only in an appropriate case and in a just manner. We propose that an advisory committee on the exercise of the power of mercy be established to investigate and make recommendations in cases where the Executive is giving consideration to exercising this power. [Final Report of the CPC, Chapter 8 – The Administration of Justice – paras 16, 122 and 123; emphasis added.]

Significantly, the CPC did not want the power of mercy to be ‘used in an arbitrary way’. It should be ‘exercised only in an appropriate case and in a just manner’.

Summary

59. The Advisory Committee on the Power of Mercy has a critical role in forming an opinion and recommending whether in the circumstances of a particular case a prisoner who has been sentenced to death should be shown mercy.

8. WHAT IS THE PRESENT STATUS OF THOSE ON DEATH ROW?
   

60. The 14 prisoners presently under sentence of death can be placed into two categories depending on whether there are any appeal or review or other court proceedings pending.

Category 1: no court proceedings pending

Five are in this category, of whom:

• two (Langa and Simbu) have escaped from custody and are at large and their appeals or reviews have been dismissed for want of prosecution;
  
• one (Poroli) is in custody but has had his appeal against conviction and sentence dismissed by the Supreme Court (for want of prosecution, which is disconcerting as it appears that the appellant was not legally represented and the Court did not give a direction to the Public Solicitor under Section 177(2)(b) of the Constitution to assist him);
  
• two (Erebebe and Togote) have been sentenced to death by the Supreme Court, upon upholding an appeal by the Public Prosecutor against the sentence of life imprisonment imposed by the National Court.
  

Category 2: court proceedings pending

Nine are in this category, of whom:

• five (Paraide, Taul, Agena, S Amos and M Amos) have had their appeals or reviews heard by the Supreme Court, and are awaiting decisions;
  
• four (Lota, Wesley, Hapot and Aira) have appealed against or applied for review of their conviction and/or sentence, and are awaiting hearing.
  

No determination has been made under Section 616 of the Criminal Code as to the date, place or method of execution of any of the prisoners.

Summary

61. Of the 14 prisoners on death row, five have no Supreme Court appeals or reviews pending and there is no express legal impediment to their execution. Nine are awaiting completion of their Supreme Court appeals or reviews.

1. ARE THE HUMAN RIGHTS OF PRISONERS ON DEATH ROW BEING AFFORDED TO THEM?
   

62. There is sufficient evidence before the Court on which to find that there is an ongoing infringement of human rights in one area, which affects all 14 prisoners on death row. I will also highlight some other areas of concern that might be ventilated in separate proceedings.

Most serious concern

63. There has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to comply with the duty to facilitate appointments of members of the Advisory Committee on the Power of Mercy and to provide it with staff and facilities. The Committee has become defunct. This leaves all prisoners, in particular those sentenced to death, with no effective opportunity to invoke their right to the full protection of the law by applying for exercise of the power of mercy.

64. This has created a gap in the criminal justice system. It involves a breach of the Constitution and an infringement of human rights which must be remedied as a matter of priority.

65. The need for all avenues of judicial and executive review to be exhausted prior to implementing the death penalty was recognised by the Supreme Court in Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa v The State (2006) SC836. The Court stated:

Because the death penalty is qualitatively different from other penalties in that once a convicted person is put to death the punishment is irreversible, the Courts are very cautious when they consider the death penalty. For instance, even when a prisoner has exhausted his appeal rights, courts are even prepared to review executive decisions of boards or committees on mercy which refuse a prisoner’s request for pardon. Because human life is sacred, the emphasis is on ensuring that a man condemned to die should not be put to death unless all avenues for reviewing and correcting mistakes made in the sentencing process by the courts and executive bodies which decide on pardon are exhausted. For instance, in the Jamaican case of Lewis v Attorney- General of Jamaica [2000] UKPC 35; [2001] 2 AC 50, the appellant was sentenced to death for murder. After his appeal was dismissed by the Jamaican Court of Appeal, he sought a recommendation for pardon from the Jamaican Privy Council. The Council determined the request without giving him an opportunity to be heard and refused the request. He applied for judicial review of the decision by the English Privy Council. The English Privy Council held that he had a right to be heard which was denied by the Jamaican Privy Council. In granting the application, the Court said at p 76:

“On the face of it there are compelling reasons why a body which is required to consider a petition for mercy should be required to receive the representations of a man condemned to die and why he should have an opportunity in doing so to see and comment on the other material which is before that body. This is the last chance and in so far as it is possible to ensure that proper procedural standards are maintained that should be done. Material may be put before the body by persons palpably biased against the convicted man or which is demonstrably false or which is genuinely mistaken but capable of correction. Information may be available which by error of counsel or honest forgetfulness by the condemned man has not been brought out before. Similarly if it is said that the opinion of the Jamaican Privy Council is taken in an arbitrary or perverse way – on the throw of a dice or on the basis of the convicted man’s hairstyle – or is otherwise arrived at in an improper, unreasonable way, the court should prima facie be able to investigate.”

Other concerns

66. I highlight two other areas of concern. First, it appears, on the evidence available, that Section 105 of the Correctional Service Regulation is not being rigorously adhered to. This is the provision that requires that a prisoner sentenced to death be given special treatment commensurate with his status as a person sentenced to death. He must:

(a) be placed in a cell alone; and
(b) be observed at all times; and
(c) receive access to an area in the open air suitable for exercise for a total of no less than three hours each day; and
(d) be medically examined by a medical practitioner at least once every 14 days; and
(e) receive no less than two visits of one half hour duration every week; and
(f) be provided with individually prepared food of no less than the standard, type and quantity provided to a detainee not condemned to death; and
(g) be supervised by correctional officers approved by the Commissioner; and
(h) be provided with access to the chaplain of a religion of the detainee's choice on request; and
(i) have access to books and radio.

67. Secondly, the 14 prisoners on death row have been condemned to be executed for considerable periods. This is borne out by the periods elapsed since the date of sentence and the date of completion of appeal and/or review procedures, shown in table 3.

TABLE 3: DEATH ROW PRISONERS – PERIODS ELAPSED SINCE
DATE OF SENTENCE &
DATE OF COMPLETION OF APPEAL/REVIEW PROCEDURES

68. Twelve of the 14 prisoners have been under a death sentence for more than four years. Of those 12, seven have appeals or reviews pending hearing or decision. Five have no appeals or reviews pending (Langa, Simbu, Poroli, Erebebe and Togote).

69. The period that elapses after a person has been sentenced to death is significant as, if the period is unreasonably long and no determination is made of the date, place and manner of execution, it can be regarded as inhuman punishment contrary to Section 36(1) of the Constitution. This could amount to a breach of human rights, warranting a permanent stay of execution and commutation of the sentence.

70. These issues were canvassed by the Supreme Court in Alois Erebebe & Taros Togote v The State (2013) SC1228, in the course of upholding the cross-appeal by the Public Prosecutor against leniency of the sentence of life imprisonment, and imposing the death penalty. The majority (Gavara-Nanu J, Hartshorn J, Yagi J and Makail J) held that in the circumstances of that case there was no inhuman punishment involved as the prisoners, although knowing for more than nine years (the period it took to have the cross-appeal heard) about the prospect of a death sentence being imposed, were not actually under the sentence of death until it was imposed by the Supreme Court.

71. However, their Honours cited with approval two Privy Council decisions which stand as authority for these propositions:

• in any case in which execution is to take place more than five years after the date of sentence there will be strong grounds for believing that the delay is such that execution thereafter would constitute inhuman punishment;
  
• the fact that the condemned person has invoked appeal and review processes does not detract from the obligation of the State to ensure that there is no prolonged delay in implementing a sentence of death.
  

72. In Pratt & Morgan v The Attorney-General for Jamaica [1993] UKPC 37; [1994] 2 AC 1, the Privy Council held that to execute two prisoners 14 years after the date of sentence would constitute inhuman punishment, and the sentences were commuted to life imprisonment. In Henfield v The Attorney-General of the Commonwealth of the Bahamas [1997] AC 413, the period after the date of sentence was three and a half years. This was held to be an unreasonable delay, involving inhuman punishment and the sentence of death was commuted to life imprisonment.

73. The Supreme Court in Erebebe and Togote cited with approval the following dicta of the Privy Council in Henley, which sets out the rationale for lengthy delays in implementation of a death sentence being regarded in some cases as a breach of human rights:

There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity. We regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. ...

In their Lordships’ view a state which wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the person who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence.

74. For eight of the 14 prisoners on PNG’s death row, the period elapsed since the date of sentence exceeds five years. If the five-year period indicated in Henley were used as the benchmark there would perhaps be a reasonable argument to say that it is now too late to execute any of these prisoners, as their right of protection against inhuman punishment has been infringed.

75. These are serious issues that can only be addressed on a case-by-case basis and on application (perhaps by way of an application for enforcement of human rights) by the prisoner concerned.

Summary

76. The most serious concern is that the Advisory Committee on the Power of Mercy has become defunct. This leaves all prisoners on death row with no effective opportunity to invoke their right to the full protection of the law by applying for exercise of the power of mercy.

77. Other matters of concern are the apparent failure of the Correctional Service to ensure that prisoners sentenced to death are given special care and treatment in accordance with Section 105 of the Correctional Service Regulation and the lengthy delays in implementation of the death penalty.

J WHAT DECLARATIONS OR ORDERS SHOULD BE MADE?

78. The most significant facts to emerge from this inquiry are that:

• since reintroduction of the death penalty in 1991, 23 persons have been sentenced to death;
  
• of that group of 23, none has been executed;
  
• of the group of 23, 14 remain under sentence of death and nine are no longer under that sentence;
  
• of that group of 14, five have no Supreme Court appeals or reviews pending and there is apparently no express legal impediment to their execution, while nine are awaiting completion of their Supreme Court appeals or reviews;
  
• of the group of 14, in the cases of eight of them, the period that has elapsed since the date of sentence is more than five years, giving rise to a potential argument that the prolonged delay amounts to inhuman punishment;
  
• there has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to facilitate appointments of members of the Advisory Committee on the Power of Mercy under the Organic Law on the Advisory Committee on the Power of Mercy and to ensure that arrangements are made, and staff and facilities provided and steps taken, to enable and facilitate the proper and convenient performance of its functions, the consequence being that the Advisory Committee on the Power of Mercy has become defunct.
  

79. I conclude that all prisoners sentenced to death are being denied the full protection of the law, contrary to Section 37(1) of the Constitution.

80. I have decided that in these circumstances, given that Section 57 of the Constitution obliges the Court to protect and enforce human rights, and that this is a Court of Justice, and that this Court has an inherent power under Section 155(4) of the Constitution to make orders that are necessary to do justice, and that in interpreting the laws of Papua New Guinea the Court is obliged by Section 159 of the Constitution to give paramount consideration to the dispensation of justice, it is necessary and appropriate to:

• declare that due to the Advisory Committee on the Power of Mercy being allowed to become defunct, the human rights of prisoners sentenced to death are being infringed in that they are each being denied the full protection of the law, contrary to Section 37(1) of the Constitution; and
  
• order the National Executive Council to comply with its duty to facilitate appointments of members of the Advisory Committee on the Power of Mercy and enable and facilitate the proper and convenient performance of its functions; and
  
• stay the execution of any prisoner who has been sentenced to death, until the Advisory Committee on the Power of Mercy is back in operation – so that the affected prisoners are given an opportunity to make applications to the Advisory Committee and thereby obtain the full protection of the law.
  

I emphasise that the stay of execution does not affect the decision of the Court in any case to impose the death penalty. It is a necessary measure, however, to ensure that the human rights of those prisoners on death row are fully available to them.

Summary

81. It is necessary and appropriate to make a declaration as to infringement of human rights and two orders, by way of finalising the inquiry and closing the proceedings.

DECLARATION AND ORDER

82. It is declared and ordered, pursuant to Sections 23(1), 57(3) and 155(4) of the Constitution, that:

(1) There has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to facilitate appointments of members of the Advisory Committee on the Power of Mercy under the Organic Law on the Advisory Committee on the Power of Mercy and to ensure that arrangements are made, and staff and facilities provided and steps taken to enable and facilitate the proper and convenient performance of its functions, the consequence being that the human rights of prisoners sentenced to death are being infringed in that they are each being denied the full protection of the law, contrary to Section 37(1) of the Constitution.

(2) The National Executive Council shall, in compliance with Section 1 of the Organic Law on the Advisory Committee on the Power of Mercy and Section 225 of the Constitution, by 1 January 2018, facilitate appointments of members of the Advisory Committee on the Power of Mercy and ensure that all arrangements are made, staff and facilities are provided and steps are taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of its functions.

(3) Unless and until order No 2 is complied with, the execution of any prisoner who has been sentenced to death, irrespective of whether his appeal and review rights have been exhausted, is stayed.

(4) These proceedings are thereby closed.

Judgment accordingly,
______________________________________________________________
Solicitor-General: Lawyer for the First Respondent
Public Solicitor: Lawyer for the Second Respondent
Public Prosecutor: Lawyer for the Third Respondent
PLO, Correctional Service: Lawyer for the Fourth Respondent
Hagahuno Lawyers: Lawyers for the Fifth Respondent