N6710
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
	
	HRA NO 264 OF 2016	

IN THE MATTER OF AN APPLICATION FOR 
ENFORCEMENT OF HUMAN RIGHTS 

KATHRINE MAL
Applicant 

V 

COMMANDER, BEON CORRECTIONAL INSTITUTION
First Respondent  

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Madang: Cannings J
                                          2017: 25 March, 4 & 5 April, 8 May 

HUMAN RIGHTS – application for enforcement – application by prisoner for early release on humanitarian and medical grounds –whether  notice requirements of Claims By and Against the State Act apply to such applications – whether applicant obliged to exhaust administrative remedies before making application. 
	
The applicant, a prisoner, applied for early release from custody on humanitarian grounds. She had chronic diabetes and hypertension and recently had a stroke and had severe mobility problems. She applied under Section 57 of the Constitution for enforcement of her human rights. The respondents, the Jail Commander and the State, opposed the application on various grounds: that the applicant failed to give notice under Section 5 of the Claims By and Against the State Act and failed to exhaust other avenues by which she might be released from custody before making the application, that there was insufficient evidence of a breach of human rights, that if a breach of human rights were proven the preferable remedy was damages, not release from custody due to the adverse public perception that would be created by granting a prisoner convicted of a serious offence being granted early release. 

Held:

(1)	The applicant was not making a “claim” against the State for the purposes of the Claims By and Against the State Act. It was unnecessary to give notice under Section 5 of that Act of the intention to make a claim against the State.

(2)	A prisoner is under no obligation to exhaust administrative remedies such as applying for parole, release on licence or a pardon, before making an application for early release as an enforcement of human rights. 

(3)	A prisoner must not 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 (Constitution, Section 36) and must be treated with humanity and with respect for the inherent dignity of the human person (Constitution, Section 37(17)).

(4)	The applicant’s health was so poor and her mobility so impaired that to require her continued detention in a prison without the necessary facilities to manage and treat her ailments would be to submit her to inhuman treatment and amount to an infringement of her right as a detainee to be treated with humanity and with respect for the inherent dignity of the human person.

(5)	A prisoner who establishes a breach of human rights is not restricted to obtaining an award of damages. The Court has power under Sections 57(1) and (3) of the Constitution to grant an appropriate remedy for enforcement of human rights, including ordering early release.

(6)	In exercising the Court’s discretion as to whether to order early release, relevant considerations include: the nature and extent of the prisoner’s medical condition, the length of time the prisoner has spent in custody, the proportion of the sentence served, whether the prisoner is eligible for parole, the nature and circumstances of the offence, whether the prisoner’s release poses any threat to public safety, the attitude of the victim and/or the victim’s relatives and public perception. 

(7)	Order for early release granted.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Application by Jerry Kui (2014) N5734
Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651
Re Release of Prisoners on Licence (2008) N3421
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2011) N4457
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591

APPLICATION

This was an application by a prisoner for early release from custody, prosecuted as an application for enforcement of human rights.

Counsel:

A Meten, for the Applicant 
B B Wak, for the Respondents

8th May, 2017
	
1.	CANNINGS J:  The applicant, Kathrine Mal, is a prisoner at Beon Jail serving a 17-year sentence for wilful murder. She applies for early release from custody on humanitarian grounds. She suffers from chronic diabetes and hypertension and recently had a stroke. Her application is made by way of an application under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution for enforcement of human rights, in particular:

•	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), and
•	the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37(17).

2.	The respondents, the Jail Commander and the State, oppose the application on various grounds: that the applicant failed to give notice under Section 5 of the Claims By and Against the State Act and failed to exhaust other avenues by which she might be released from custody before making this application, that there is insufficient evidence of a breach of human rights and that if a breach of human rights is proven the preferable remedy is damages, not release from custody due to the adverse public perception that would be created by granting a prisoner convicted of such a serious offence early release.

3.	The following issues arise:

1.	Should the application be refused because of a failure to comply with Section 5 of the Claims By and Against the State Act?

2.	Should the application be refused because of the applicant’s failure to exhaust administrative remedies?

3.	What are the facts?

4.	Does the applicant’s imprisonment entail any breach of human rights?

5.	What orders should the Court make? 

1	SHOULD THE APPLICATION BE REFUSED BECAUSE OF A FAILURE TO COMPLY WITH SECTION 5 OF THE CLAIMS BY AND AGAINST THE STATE ACT?

4.	Mr Wak, for the respondents, submitted that the application should be refused as the applicant had not given notice of her intention to make the claim for early release before filing the application, as required by Section 5 (notice of claims against the State) of the Claims By and Against the State Act. Section 5 provides that “no action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section … within a period of six months after the occurrence out of which the claim arose”. Mr Wak pointed out that under Section 2 (suits against the State) of the Act, its provisions “apply to applications for the enforcement against the State of a right or freedom under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution”. 

Mrs Meten, for the applicant, agreed that no Section 5 notice was given but argued that it was not necessary as the present application does not involve any claim for damages or compensation or any other similar remedy; it is simply an application for early release from custody.

5.	I uphold Mrs Meten’s submission that because the applicant is not claiming damages or compensation or other similar relief, it was unnecessary to give notice under Section 5 of the intention to make the application. The term “claim” in Section 5 refers to a monetary claim or a claim for an order such as an injunction that would involve direct cost or prejudice to the State. Although Section 2(2) clarifies that the Act applies to applications under Section 57 of the Constitution for enforcement of human rights (and the present application is such an application) that does not alter the meaning and effect of the word “claim” in Section 5. It refers to monetary or other similar claims. None is made in this case. The applicant did not have to give a Section 5 notice. Her application will not be refused because of the alleged failure to comply with the Act. There was no failure to comply. 

2	SHOULD THE APPLICATION BE REFUSED BECAUSE OF THE APPLICANT’S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES?

6.	Mr Wak submits that there are other administrative means by which the applicant could apply for early release. She could for example apply for parole or a release on licence or a pardon. She should be required to exhaust those administrative avenues before approaching the Court, Mr Wak submitted.

7.	It is correct that there are administrative procedures that could have been explored by the applicant. I explained the laws and procedures that could be invoked to effect early release of a prisoner in my inquiry into the May 2007 mass release on licence exercise, detailed in Re Release of Prisoners on Licence (2008) N3421.  However I see no merit in the proposition that a prisoner must exhaust those avenues before coming to Court with an application for enforcement of human rights. The present application is made directly under the Constitution. The Court’s power to grant early release is an exercise of the constitutional power to enforce basic rights and freedoms and cannot be curtailed by introducing a requirement that other procedures first be utilised.

8.	Having said that, the fact that a prisoner has applied for early release through some other procedure and the reasons for refusal of such an application, would be relevant considerations to be taken into account by the Court when exercising the discretion by Court whether to grant early release. However, in this case there is no evidence of refusal of an application for early release, so that consideration does not arise. The applicant’s failure to exhaust administrative avenues is not a good reason to refuse her application.  

3	WHAT ARE THE FACTS?

9.	The facts surrounding the applicant’s imprisonment and her medical condition are largely uncontentious. 

Imprisonment

10.	The applicant was convicted of wilful murder after a trial in which she was a co-accused together with her son and two nephews. The Court concluded that her son directly and unlawfully killed the deceased, intending to cause his death, and that her nephews did acts for the purpose of aiding the primary offender to commit the offence. As for the applicant, the Court concluded that she counselled others, including the primary offender, to commit the offence of wilful murder. She was deemed under Section 7(1)(d) (principal offenders) of the Criminal Code to have taken part in committing the offence and to be guilty of it (The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2011) N4457). She was sentenced to 17 years imprisonment with the pre-sentence period in custody of three months deducted (The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591). An application to the Supreme Court for review of her conviction and sentence, SC Rev No 7 of 2013, was dismissed on 2 June 2015.

11.	The applicant’s due date of release from custody, with remission of one-third of the sentence under Section 120 (remission to be granted) of the Correctional Service Act (5 years, 8 months) is 20 March 2023. Her due date of release from custody without remission is 20 November 2028.

12.	Section 17(1)(b)(eligibility for parole) of the Parole Act provides that a person who has been sentenced to a term of three years or more is eligible for parole after serving one third of the sentence. The applicant will become eligible for parole after serving five years, eight months in custody calculated from the deemed date of commencement of her sentence, 20 November 2011, ie on 20 July 2017.

13.	As at the date of this judgment she has served five years, five months, two weeks, four days in custody, which is 32% of her total sentence. Put another way, given that she is entitled to one-third remission of her sentence, she has served 48% of her effective sentence.

Medical condition

14.	The applicant was in poor health when she was first imprisoned.  In the decision on sentence, N4591, it was stated:

She is diabetic (there being a strong family history of diabetes) and suffers from high blood pressure and anaemia. Other diabetic symptoms such as blurred vision and sleeplessness are increasingly problematic. She was admitted to hospital on 6 December 2011 soon after her conviction and remains hospitalised. A report by Dr Martin Daimen, Senior Medical Officer, Modilon General Hospital, attests to the seriousness of her condition. A recent report by Terence Kuaru, Clinical Psychologist, Modilon General Hospital, reveals that her mental health is also fragile. She suffers from depression, with suicidal ideation, which appears to have been exacerbated by this court case, particularly by her conviction. 

15.	The applicant’s health has deteriorated markedly in the period of her imprisonment from 2011 to 2017. There is ample medical evidence, in particular a series of reports by Dr Weston Yambut, Senior Medical Officer/Physician, Modilon General Hospital (the latest dated 15 December 2016),showing that the applicant continues to suffer from type 2 diabetes mellitus and hypertension, of which there is a strong family history. Dr Weston, in a report dated 10 May 2016 stated:

Diabetes type 2 and hypertension are non-communicable lifestyle diseases with no definite cure. The emphasis on the management of both diseases is dietary and weight control with medications to maintain levels within normal ranges. With good control, the risk of developing major complications are dramatically reduced. These complications include poor vision, kidney failure, high blood cholesterol, heart attack and heart failure and stroke. 

These medical conditions are very difficult to treat and manage as they require a very strict dietary control and lifestyle modification. Being in an institution such as Beon CI [correctional institution] is very stressful and psychologically disturbing and it is quite difficult to manage such conditions. This has led to fluctuations of blood pressure and blood sugar which has on numerous occasions resulted in admissions to Modilon General Hospital. 

She was admitted twice this year and the latest was on 4/4/16 for treatment failure [for] malaria and uncontrolled hypertension (hypertensive urgency; blood pressure ranging from 200 – 220 mmHg systolic and 110 – 130 mmHg diastolic blood pressure). She was treated for malaria infection and high blood pressure with medications. About five days into her treatment she developed numbness and weakness involving her left leg, arm and face. She became bed-bound and was unable to mobilise. Clinical examination revealed that she had a stroke involving the deep structures of the brain known as lacunar stroke/infarct. Due to her status, a CT [computerised tomography]   scan of the brain was arranged to confirm and measure the extent of damage to the brain structures.  She was then referred to the Pacific International Hospital in Port Moresby on 6/5/16 for a CT scan.

The CT scan report confirmed that she had multiple areas of stroke/infarct … This is a special type of stroke often associated with longstanding uncontrolled hypertension.

There is a greater risk of stroke if [she] continues to be in Beon CI. Since her admittance to [Beon CI] she has had many hospital admissions for poorly controlled high blood pressure and now has led to the first episode of stroke. She is on medication for diabetes and hypertension with low dose aspirin and also undergoing physiotherapy for the management of current stroke, however the risk is still very high.

Therefore on medical grounds I would strongly recommend that [she] be paroled so she can stay at home and concentrate on her illness to prevent any further serious medical problems occurring. 

16.	I also find as a fact (contrary to the submissions of Mr Wak who suggested that there was insufficient evidence) that the applicant has been,  except for a few days in May 2016 when she was taken to Port Moresby for tests at Pacific International Hospital, admitted to Modilon General Hospital for a continuous period since April 2016.

17.	I accept the applicant’s evidence that she has numbness in the left side of her body, that she is unable to control her bodily functions and unable to wash herself or change her own clothes, and that she has restricted mobility and poor vision. 

18.	She had a stroke in April 2016, which has caused weakness in her left limbs, leading to impaired mobility. She requires intense physiotherapy.  She is vulnerable, in the absence of proper management, to having another stroke, kidney failure or a heart attack. 

4	DOES THE APPLICANT’S IMPRISONMENT ENTAIL ANY BREACH OF HUMAN RIGHTS?

19.	There are human rights standards that must be met by the State when it imprisons a person. These standards are set by the Constitution (Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651). 

A prisoner:

•	must not 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 (Constitution, Section 36(1));

•	must be afforded the full protection of the law (Constitution, Section 37(1));

•	must be treated with humanity and with respect for the inherent dignity of the human person (Constitution, Section 37(17)).

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(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.

20.	Are those standards being met in this case?  No. I find that the applicant’s health is so poor and her mobility so impaired and the difficulties encountered in managing and treating her various ailments are so great, that her continued detention in a prison without the necessary facilities to manage and treat her ailments, will be to submit her to inhuman treatment contrary to Section 36(1) of the Constitution, to deny her the full protection of the law contrary to Section 37(1) of the Constitution and amount to an infringement of her right as a detainee to be treated with humanity and respect for the inherent dignity of the human person contrary to Section 37(17) of the Constitution. I find that the applicant’s imprisonment entails a breach of her human rights.

21.	In making that finding, I make no criticism of the Beon Jail Commander or the Commander of the Correctional Service or any members of the Correctional Service who have had the applicant in their custody. I am satisfied that they have done the best they can in difficult circumstances. 

5	WHAT ORDERS SHOULD THE COURT MAKE? 

22.	I agree with Mr Wak that if a prisoner establishes a breach of human rights it does not necessarily follow that the prisoner should be granted early release. As in any civil proceedings, it is one thing for the applicant to prove a cause of action (here, the breach of human rights is the cause of action), it is another thing to persuade the court that the remedy being sought (here, early release) should be granted. As I pointed out in Application by Benetius Gehasa (2005) N2817, an application for enforcement of human rights under Section 57(1) of the Constitution gives rise to two issues:

•	first, has a right of the applicant actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If the answer to that question is no, the court should not intervene; and 

•	secondly, if the answer is yes, the court needs to consider the second issue: whether it should grant the remedy sought or make some other order for enforcement of the right under Section 57(3) of the Constitution.

Section 57(1) 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.

Section 57(3) 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).

23.	I am not impressed by the second plank of Mr Wak’s submission as to remedies, which is that a prisoner who establishes a breach of human rights should be restricted to obtaining an award of damages. True it is that the Court has power to award damages. This can be done under Section 57(3). It can also be done under Section 58(2) (compensation), which states:

A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

24.	However, the National Court has power as a matter of discretion under Sections 57(1) and (3) of the Constitution to grant an appropriate remedy for enforcement of the human rights of prisoners, including ordering early release (Application by Jerry Kui (2014) N5734). 

25.	In exercising the Court’s discretion whether to order early release, relevant considerations include: the nature and extent of the prisoner’s medical condition, the length of time the prisoner has spent in custody, the proportion of the sentence served, whether the prisoner is eligible for parole, the nature and circumstances of the offence of which the applicant was convicted, whether the prisoner’s release poses any threat to public safety, the attitude of the victim and/or the victim’s relatives and public perception.  

26.	I take into account that:

(a)	the applicant’s medical condition is extremely serious and greatly impairs her quality of life, and the condition is, if not properly and consistently managed and treated, life-threatening;

(b)	the applicant has spent more than five years in custody, which is a substantial period given her medical condition and the conditions of her detention;

(c)	she has served 32% of her total sentence but in real terms she has served 48% of the effective sentence;

(d)	she will be eligible for parole in less than three months;

(e)	though she was convicted of the very serious offence of wilful murder, the circumstances of her conviction show that she did not physically kill any person;

(f)	it is not expected that her release would pose any threat to public safety;

(g)	the views of the deceased’s relatives are not known;

(h)	there is no evidence to show that public perception would be adverse to early release of the applicant.

27.	I consider that factors (a), (b), (c) and (d) strongly favour the exercise of discretion to order early release. Factor (e) is also supportive of the exercise of discretion in that manner; though not to the same extent as the previous factors, as the Court in a human rights case of this sort should be slow in going “behind” the conviction that led to the imprisonment of the applicant. Factors (f), (g) and (h) are neutral. I can identify no consideration that weighs tangibly against any of those mentioned. I therefore exercise the discretion of the Court to grant early release, on conditions, that are set out in the following order. 

ORDER

(1)	The application for early release from custody is granted, pursuant to Sections 57(1) and (3) of the Constitution, to enforce the human rights of the applicant, namely the right to freedom from inhuman treatment under Section 36(1) of the Constitution, the right to the full protection of the law under Section 37(1) of the Constitution, and the right to be treated with humanity and with respect for the inherent dignity of the human person under Section 37(17) of the Constitution, subject to the conditions:

(a)	that upon her release from custody, the applicant shall keep the peace and be of good behaviour until the due date for the end of her sentence, 22 November 2028; and 

(b)	that in the event that it is believed on reasonable grounds that the applicant has breached condition(a) the State is at liberty to apply by originating summons for an order that the applicant be returned to custody.

(2)	The Jail Commander Beon shall release the applicant from custody forthwith.

Ordered accordingly,

__________________________________________________________________
Public Solicitor	:    Lawyer for the Applicant		 	
Solicitor-General	:  Lawyer for the Respondents