N7629
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 20 OF 2018

IN THE MATTER OF AN APPLICATION FOR
ENFORCEMENT OF HUMAN RIGHTS

HENI ELLY
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2018: 24, 28 December

HUMAN RIGHTS – Constitution, Section 37(1): right to full protection of the law –    application by prisoner serving life sentence for release from custody – long-term medical condition – non-compliance with court order for Parole Board to determine parole application. 

CRIMINAL JUSTICE SYSTEM – Parole Board – whether absence of Chairman prevents Board functioning – whether failure to determine a prisoner’s parole application and/or failure to comply with a court order amounts to a breach of human rights. 

HUMAN RIGHTS – enforcement of guaranteed rights and freedoms – Constitution, Section 57(3) – whether National Court has power to order early release of prisoners in cases of infringement of human rights. 

The applicant, a prisoner serving a life sentence, applied for early release from custody on the ground of breach of human rights, in that he is suffering from chronic peptic ulcer disease, is unable to get proper medical treatment in prison and the Parole Board has not heard and determined his parole application in a timely manner, and has breached an order of the National Court that it determine his parole application. He claimed that he was being denied the right to the full protection of the law under Section 37(1) of the Constitution and that to remedy this infringement of human rights he should be released from custody. The respondents, the Commissioner of the Correctional Service and the State, opposed the application for early release on various grounds: that there was insufficient evidence of a breach of human rights, that if a breach of human rights were proven the only remedy was damages, as the National Court did not have power to grant early release, and the proper authority to consider the applicant’s request for release was the Parole Board (however, it was unable to presently consider the applicant’s parole application as it had been without a Chairman for eight months and was unable to function). 

Held:

(1)	A prisoner must at all times be afforded by the State and its functionaries, including the Commissioner of the Correctional Service and the Parole Board, the full protection of the law under Section 37(1) of the Constitution, which means, amongst other things, that a prisoner who is eligible for parole must have his parole application heard and determined by the Parole Board in a timely manner and the Parole Board must comply with any order of the National Court as to a prisoner’s eligibility for parole and the timeframe within which a parole application must be determined. 

(2)	The applicant’s health was not so poor and his mobility not so impaired that to require his continued detention in prison would be to submit him to inhuman treatment and amount to an infringement of his right as a detainee to be treated with humanity and with respect for the inherent dignity of the human person. His human rights were not infringed in that regard.

(3)	The applicant was eligible for parole at least by 2013 and the failure of the Parole Board to determine a parole application in the intervening period of five years was an infringement of his right to the full protection of the law. The infringement was exacerbated by the failure of the Board to comply with an order of the National Court to determine his parole application by 6 December 2018. 

(4)	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.

(5)	The application for early release was refused due to absence of evidence of the attitude of the deceased’s relatives to early release of the applicant.   

(6)	Declaration granted as to infringement of human rights and orders made requiring the State to remedy the infringement by taking all steps necessary to ensure that as a matter of urgency a Chairman of the Parole Board is appointed. 

Cases cited
The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Application by Jerry Kui (2014) N5734
Application by Kathrine Mal (2017) N6710
Application by Reuben Micah (2013) N5427
Applications for early release from custody by John Carl Endekra and 14 other prisoners of Lakiemata Correctional Institution (2009) N3838
Bobby Selan v The State (2012) N4938
Daniel Ronald Walus v The State (2007) SC882
Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651
Re Human Rights of Prisoners Sentenced to Death (2017) N6939
Re Release of Prisoners on Licence (2008) N3421

APPLICATION

This was an application by a prisoner serving a sentence of life imprisonment for release from custody, prosecuted as an application for enforcement of human rights.

Counsel

O P Kewa, for the Applicant 
P T Ohuma, for the Respondents

28th December, 2018 

1.      CANNINGS J: The applicant, Heni Elly, is a prisoner at Bomana Correctional Institution, serving a sentence of life imprisonment for the crime of wilful murder. He applies for early release from custody on the ground of breach of human rights, in that he is suffering from chronic peptic ulcer disease, is unable to get proper medical treatment in prison and the Parole Board has not heard and determined his parole application in a timely manner, and has breached an order of the National Court by its failure to consider his parole application. He claims that he is being denied the right to the full protection of the law under Section 37(1) of the Constitution and that to remedy this infringement of human rights he should be released from custody. 

2.     The respondents, the Commissioner of the Correctional Service and the State, oppose the application for early release on various grounds: that there is insufficient evidence of a breach of human rights and that if a breach of human rights is proven the only proper remedy is damages, as the National Court does not have power to grant early release. The only proper authority to consider the applicant’s request for release is the Parole Board. It is, however, unable to presently consider the applicant’s parole application as it has been without a Chairman since April 2018 and is unable to function. Further, the respondents contend that if the Court considers that it does have the power to grant early release, that power should not be exercised in this case. The following issues arise:  

1.	What are the facts?

2.	What human rights does a prisoner serving a life sentence have? 

3.	Does the National Court have power to order early release of a prisoner serving a life sentence?  

4.	Has any infringement of human rights been proven in this case?

5.	What orders should the Court make? 

1	WHAT ARE THE FACTS?

3.     The applicant is from Baruni village, National Capital District, aged in his late 40s. He was convicted in May 2003 of one count of wilful murder and sentenced to life imprisonment. The offence was committed in 2000 and he spent approximately two years in remand and was on bail for about nine months prior to conviction and sentence. He has been in custody for 17 years. He has no record of escaping from custody.

4.     He has on a number of occasions since 2012 fallen seriously ill. He has been diagnosed as suffering from chronic gastritis or peptic ulcer disease, the primary cause of acute epigastric pain and impaired mobility. He is on continuing medication. He has been admitted to Port Moresby General Hospital on several occasions, for several months at a time, to alleviate what at times has been a life-threatening condition. Conditions of detention at Bomana make it difficult for him to be given appropriate treatment. 

5.     Though serving a life sentence, he became eligible for parole under Section 17(1)(c) (eligibility for parole) of the Parole Act 1991 after serving ten years in custody. Section 17 states: 
 
(1)	Subject to this Act, a detainee who—

(a)	having been sentenced to a term of imprisonment of less than three years—has served not less than one year; or
(b)	having been sentenced to a term of imprisonment of three years or more—has served not less than one third of the sentence; or
(c)	having been sentenced to life imprisonment or detention during Her Majesty's pleasure—has served not less than ten years,

is eligible for parole.

(2)	For the purposes of determining the length of a sentence under Subsection (1)—

(a)	remission of sentence shall not be taken into account; and
(b)	where a detainee has been sentenced to—

(i)	two or more terms of imprisonment to be served concurrently—the longer or longest term (as the case may be) shall be considered; or
(ii)	two or more terms to be served cumulatively—the total of these terms shall be considered. 
 
6.     The Correctional Service considered that he was eligible for parole on the tenth anniversary of his sentence, 15 May 2013. He applied for parole but for unknown reasons his parole application was not dealt with and finally determined. 

7.      On 16 February 2018 he filed a human rights enforcement application, complaining about the delay in having his parole application determined and about the lack of medical treatment. He was affected by a new policy imposed by the Commissioner of the Correctional Service, reportedly on instructions from the Prime Minister, restricting prisoners’ leave of absence from correctional institutions to attend hospital for medical treatment. 

8.      The trial of his human rights enforcement application was conducted in July 2018. On 1 August 2018 I declared that he was eligible for parole and ordered the Jail Commander, Bomana, to forward to the Parole Board all documents required by Sections 18 and 20 of the Parole Act by 18 September 2018. I ordered the Chief Parole Officer to appear on 25 September 2018 to check compliance with the order so that a time could be set for the Board to determine the parole application. 

9.      On 25 September 2018 the matter was mentioned and the Jail Commander was given further time to 5 October 2018 to forward the documents to the Parole Board; and the case was adjourned to 10 October 2018 and the Chief Parole  Officer was ordered to appear on that date. 

10.     On 10 October 2018 the acting Chief Parole Officer, Ms Mirio, appeared and notified the Court that nothing had been done with the applicant’s parole application as the Parole Board had no Chairman; the term of appointment of the Chairman, Dr Lawrence Kalinoe, having expired on 10 April 2018 and no new appointment having been made. 

11.       I expressed the Court’s disappointment at hearing that news, which represented a very unsatisfactory state of affairs. Regrettably it was a continuation of the problem of which Ms Mirio had informed the Court at human rights hearings in Kimbe in May 2018. The Parole Board had ceased to function because it had no Chairman. I nonetheless ordered the Parole Board to determine the applicant’s parole application by 6 December 2018 and adjourned the matter to 20 December 2018 and ordered the Chief Parole Officer to appear before the Court then, to notify the Court of the result of the parole application. 

12.     On 20 December 2018 the matter was called. Ms Ohuma, of the Office of Solicitor-General, appeared, but the acting Chief Parole Officer did not. Ms Ohuma notified the Court that Ms Mirio was on leave (another unsatisfactory state of affairs as she had not sought leave of the Court to be excused from attending, having been ordered to do so on 10 October 2018). Ms Ohuma explained that there was still no Chairman of the Parole Board. 

13.     I suggested to the applicant’s counsel, Mr Kewa of the Office of Public Solicitor, that he consider his client’s position in light of the continuing failure of the Parole Board and the State to comply with the Court’s orders. 

14.     On 21 December 2018 the Public Solicitor filed a notice of motion on behalf of the applicant seeking amongst other things an order for the applicant’s immediate release from custody, on the ground that the continuing non-compliance by the respondents with the Court’s orders amounted to a breach of his right under Section 37(1) of the Constitution to the full protection of the law. That is the motion on which I am now ruling. 

2	WHAT HUMAN RIGHTS DOES A PRISONER SERVING A LIFE SENTENCE HAVE?

15.     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). They apply to all prisoners, including those sentenced to life imprisonment. 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 treated with humanity and with respect for the inherent dignity of the human person (Constitution, Section 37(17));

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

16.     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.

17.     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.

18.     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.

19.     It is the right to the full protection of the law that the applicant seeks to directly enforce, through the application that is before the Court. Mr Kewa submits that the Parole Board’s continuing failure to hear and determine the applicant’s parole application and its failure to comply with orders of the Court, combined with the State’s failure to appoint a Chairman of the Parole Board, amount to breach of the right to the full protection of the law. 

20.     Mr Kewa submits that this is a very serious infringement in view of the applicant’s poor medical condition and his continuing need for medical treatment, which is a special factor that would need to be taken into account if the Parole Board were to hear his parole application. 

3	DOES THE NATIONAL COURT HAVE POWER TO ORDER EARLY RELEASE OF A PRISONER SERVING A LIFE SENTENCE?

21.     Ms Ohuma submits that the answer to this question is no. Even if it is found that the human rights of a prisoner, especially one serving a life sentence, have been breached (due to their medical condition or delays in determining their parole application or breach of court orders or any other reason), it is argued that the National Court has no power to order early release. 

22.     Ms Ohuma cited my decision in Application by Benetius Gehasa (2005) N2817, where I said that an application for enforcement of human rights under Section 57(1) of the Constitution gives rise to two issues:

•	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 

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

23.     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.

24.     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).

25.     Ms Ohuma submitted that in exercising jurisdiction under Section 57(3) the National Court is constrained by existing laws that confer on other specialist bodies, in particular the Parole Board, the power to grant early release to prisoners. The Supreme Court held in Daniel Ronald Walus v The State (2007) SC882 that the National Court, having sentenced an offender, is functus officio (its duties are discharged). It has no power to provide for early release from prison, which amounts to usurpation of the powers of the Parole Board. 

26.     Ms Ohuma submitted that I am bound by the Supreme Court’s edict in Walus. She points out that I acknowledged being so bound in Applications for early release from custody by John Carl Endekra and 14 other prisoners of Lakiemata Correctional Institution (2009) N3838, where I stated (repeating similar remarks in Re Release of Prisoners on Licence (2008) N3421): 

The critical point that all prisoners must understand is that the National Court has no general power to order early release of any prisoner. The Court can only order early release if the order under which the prisoner was sentenced expressly allows for it. Examples of such orders are where:

(a)	the court suspends a sentence but makes the suspended part of the sentence conditional on payment of compensation to a victim prior to release from custody; or

(b)	the court imposes a minimum term in custody after which the prisoner can apply for early release subject to having a satisfactory service record within the jail.

27.     Ms Ohuma further submitted that a prisoner who establishes a breach of human rights should be restricted to obtaining damages, which can be awarded under Section 58(2) (compensation) of the Constitution, 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.

28.     I acknowledge that the Court has the power under Section 58(2) to award damages to a prisoner who succeeds in establishing a breach of human rights. Examples include the cases of Bobby Selan v The State (2012) N4938 and Application by Reuben Micah (2013) N5427. However, I am not persuaded by Ms Ohuma’s submission that the Court is confined to awarding damages, and cannot order early release. None of the cases cited by Ms Ohuma deal with the scenario in which a prisoner proves a breach of human rights. None of them address the power of the court under Section 57(3) of the Constitution to “make all such orders and declarations as are necessary or appropriate” in the case of a person, including a prisoner, whose rights or freedoms have been infringed. 

29.     My view remains that the National Court does have power in an appropriate case, if it is established that a breach of human rights has occurred, to order early release of a prisoner. I exercised that power in Application by Jerry Kui (2014) N5734 and Application by Kathrine Mal (2017) N6710. It is the infringement of guaranteed rights and freedoms that enlivens the jurisdiction of the Court under Sections 57(1) and (3) of the Constitution.  
  
30.     As I stated in Mal, 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.  

4	HAS ANY INFRINGEMENT OF HUMAN RIGHTS BEEN PROVEN IN THIS CASE?

31.     As to the applicant’s health, I find that in 2018 his health is not so poor and his mobility is not so impaired that to require his continued detention in prison would be to submit him to inhuman treatment and amount to an infringement of his right as a detainee to be treated with humanity and with respect for the inherent dignity of the human person. I find that his human rights are not being infringed in that regard.

32.     However, in view of fact that he was eligible for parole at least by 2013, I find that the failure of the Parole Board to determine his parole application in the intervening period of five years is an infringement of his right to the full protection of the law under Section 37(1) of the Constitution. 

33.      That infringement has been exacerbated by the failure of the Board to comply with an order of the National Court to determine his parole application by 6 December 2018. The excuse given – that the Board cannot function as it has no Chairman – is unacceptable, and is evidence of a further infringement of the applicant’s human rights. 

5	WHAT ORDERS SHOULD THE COURT MAKE? 

34.       I will make a formal declaration that the applicant’s human rights have been infringed. Such a declaration can be made under Section 57(3) of the Constitution.  
  
35.     As to the application for release from prison, I reiterate that the power exists to order the applicant’s release, as an enforcement of human rights, in view of the finding that his rights have been infringed. However, having regard to the considerations identified in Mal’s case, I do not think that this is an appropriate case for early release, not at this stage anyway, for two main reasons. First, the applicant’s medical condition has largely stabilised and is being managed and he is not in a life-threatening situation. Secondly, there is an absence of evidence of the attitude of the deceased’s relatives to early release of the applicant. It must not be forgotten that he was convicted of the most serious offence known to law and the attitude of the deceased person’s relatives is critical to a decision whether to allow a prisoner serving a life sentence to be released from custody. The application for release from custody is not granted. 

36.     So what does the court do with this case, and this applicant? Just wait for a chairman of the Parole Board to be appointed? How long will that take? Who makes the appointment? Who is responsible for seeing that an appointment is made? Who is responsible for the Parole Board not functioning for eight months? No clear answers have been provided to the Court. Something needs to be done, and quickly. 
 
 37.     It is not only the applicant who has suffered from this deplorable situation. It is every other prisoner in the country who is eligible for parole, who has not had their parole application heard because the Parole Board has no chairman. 

38.     Section 3 of the Parole Act 1991 provides for the appointment of the Chairman and other members of the Board. It states:  
  
(1)	The Parole Board is hereby established.

(2)	There shall be three members of the Board comprising:—
  
(a)	a lawyer, who shall be Chairman; and
(b)	a person nominated by the Commissioner; and
(c)	a person nominated by the Departmental Head,

appointed in accordance with the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004.
  
(3)	The lawyer referred to in Subsection (2)(a) shall be selected by the following process:—

(a)	the President of the Papua New Guinea Law Society shall, following public advertisement—

(i)	select a panel of names from among applicants; and
(ii)	submit the panel to the Public Services Commission for appointment in accordance with Subsection (2).

(b) . . . [Repealed]
  
(4)	The persons referred to in Subsection (2)(b) and (c) shall have as many as possible of the following qualifications:—
  
(a)	experience in social welfare matters;
(b)	active involvement in community affairs;
(c)	maturity and integrity;
(d)	good standing in the community;
(e)	appreciation and understanding of social issues and problems;
(f)	interest or background in working with people in need of rehabilitation.
  
(5)	The members of the Board shall—

 (a)	be appointed for a period not exceeding three years; and
(b)	be eligible for reappointment.
  
(6)	Subject to the Salaries and Conditions Monitoring Committee Act 1988, members of the Board are appointed on such terms and conditions as the Minister determines.
  
(7)	Notwithstanding anything contained in the Public Services (Management) Act 1995, where an officer of the National Public Service is appointed to the Board, his service on the Board shall be counted as service in the National Public Service for the purpose of determining his rights (if any) in respect of—

(a)	leave of absence on the ground of illness; and
(b)	furlough or pay instead of furlough (including pay to dependents on the death of the officer).

(8)	The provisions of the Public Services (Management) Act 1995 relating to leave to serve under another Act apply to the office of member of the Board.
  
(9)	The Board shall have an official seal and all courts, Judges and persons acting judicially shall take judicial notice of the official seal of the Board affixed to a document and shall presume that it was duly affixed.  
  
39.     In deciding what needs to be done to ensure that a Chairman is appointed urgently, I make the following observations:
  
1.	The Parole Board is a small body, with only three members. Its quorum is, under Section 6(3) all three members. 

2.	The Chairman has to be a lawyer (Section 3(2)(a)). 

3.	There has to be a public advertisement for the position (Section 3(3)(a)).  

4.	The President of the Law Society has an important role to play in selecting a panel of names from among applicants for submission to the Public Services Commission. 

5.	It is not clear whether the office of Chairman is intended to be a full-time or part-time position. The purpose of the Parole Act is, according to its long title, “to provide for a system of parole which will contribute to the maintenance of a just, peaceful and safe society by facilitating the reintegration of offenders into the community as law-abiding people”. Perhaps the Chairman’s position should be a full-time one. 

6.	The cross-reference in Section 3(2) to the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 ensures that the Public Services Commission has a key role in preparatory work for the appointment of all members of the Parole Board, with the appointment of all members including the Chairman apparently being made by the Head of State on the advice of the National Executive Council. 

CONCLUSION
  
40.     In Re Human Rights of Prisoners Sentenced to Death (2017) N6939, I reported that the Advisory Committee on the Power of Mercy had become defunct. Unfortunately the present case has revealed that the Parole Board has suffered a similar fate. These bodies are critical components of the criminal justice system. They must be made to function. The human rights of the applicant, Heni Elly, have been infringed by the State’s inaction in appointing a Chairman of the Parole Board. I make the following order by way of determining the application for enforcement of human rights. 
 
ORDER

(1)	It is declared, pursuant to Sections 57(1) and (3) of the Constitution, that the human rights of the applicant have been and continue to be infringed by the State denying him the right to the full protection of the law under Section 37(1) of the Constitution, by the Parole Board failing over a period of five years to determine the applicant’s parole application and by the State’s failure over a period of eight months to appoint the Chairman of the Parole Board, resulting in the Parole Board being unable, despite being ordered by the National Court to do so, to hear and determine any application for parole by the applicant, or any other prisoner of the State. 

(2)	The application for early release from custody is refused.

(3)	The State and all relevant and responsible officers of the State shall remedy the declared infringement of human rights by taking all steps necessary to ensure that as a matter of urgency: (a) a Chairman of the Parole Board is appointed; and (b) all other members of the Parole Board are appointed; (c) all other 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 the functions of the Parole Board.

(4)	The following persons, who appear to the Court to have statutory and/or administrative responsibility under the Parole Act for facilitating the appointment of the Chairman and/or other members of the Parole Board, shall file in these proceedings, by 28 January 2019, an affidavit, and appear in Court at Waigani on 30 January 2019 at 9.30 am, personally or through a duly appointed representative, explaining the steps they have taken to facilitate those appointments: (a) the Chairman of the Public Services Commission; (b) the Secretary, Department of Justice and Attorney-General; and (c) the President, Papua New Guinea Law Society.  

(5)	These proceedings are adjourned to 30 January 2019 at 9.30 am for the purpose of: (a) ascertaining the status of the Parole Board; and (b) giving further directions for the conduct of these proceedings. 

Ordered accordingly.
_______________________________________________________________
Public Solicitor: Lawyer for the Applicant	
Solicitor-General: Lawyer for the Respondents