N8576
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 158 OF 2019

IN THE MATTER OF AN APPLICATION FOR 
ENFORCEMENT OF HUMAN RIGHTS 

GIBSON ALABAIN 
Applicant 

V 

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent  

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2020: 26th June, 17th, 24th July, 7th, 12th October

HUMAN RIGHTS – application by prisoner for early release from custody on human rights grounds – whether Court has jurisdiction to order early release – whether human rights breached – appropriate remedies. 

The applicant, a prisoner, applied for early release from custody on the ground that his human rights were breached by the Jail Commander’s continuing failure to comply with a court order that he be placed on a special diet due to his medical condition, thereby putting his life at risk. The respondents opposed the application, arguing that the National Court had no power to grant early release, and that there was no breach of human rights as the Jail Commander had substantially complied with previous orders and that even if the Court had jurisdiction and a breach of human rights were proven, the Court should still decline to grant early release. 

Held:

(1)	The National Court has jurisdiction under ss 57(1) and (3) of the Constitution to order early release of a prisoner as an enforcement of human rights if a breach of human rights is proven and the Court considers that it is necessary or appropriate to so order. 

(2)	There had been inconsistent adherence to the court order requiring that the applicant be placed on a special diet. However, there was insufficient evidence that this put the applicant in a life-threatening position. The failure to comply with the Court’s orders meant that the applicant was denied the full protection of the law, amounting to a breach of human rights under s37(1) of the Constitution, but there was no evidence breach of the right to be treated with humanity (Constitution, s 37(17)) or of harsh or oppressive treatment of the applicant (Constitution, s 41(1)). 

(3)	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, whether the prisoner’s release poses any threat to public safety, the attitude of the victim and public perception.  

(4)	Application for early release refused.

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
Applications For Early Release from Custody by John Carl Endekra and 14 other Prisoners of Lakiemata Correctional Institution (2009) N3838
Daniel Ronald Walus v The State (2007) SC882
Dr Theo Yasause v Kiddy Keko (2017) N6853
Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651
Heni Elly v Commissioner of the Correctional Service (2018) N7629
Re Release of Prisoners on Licence (2008) N3421
Simon Liliura v Commissioner of Correctional Service (2019) N7917

APPLICATION

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

Counsel

J Kambao, for the Applicant 
A Kajoka, for the Respondents

12th October, 2020

1.      CANNINGS J: The applicant, Gibson Alabain, is a prisoner at Bomana Correctional Institution, National Capital District, serving a 30-year sentence for wilful murder. He applies for early release from custody on the ground that his human rights have been breached by the Jail Commander’s continuing failure to comply with a court order that he be placed on a special diet due to his medical condition, thereby putting his life at risk. The respondents oppose the application, arguing that the National Court has no power to grant early release, and that there was no breach of human rights as the Jail Commander had substantially complied with the order, and that even if the Court had jurisdiction and a breach of human rights were proven, the Court should still decline to grant early release. 

2.     The application is made under s 57 (enforcement of guaranteed rights and freedoms) of the Constitution for enforcement of human rights, in particular:

•	the right to the full protection of the law under Constitution, s 37(1), and
•	the right to be treated with humanity under Constitution, s 37(17),
•	the right to be protected against harsh, oppressive and other proscribed acts under Constitution, s 41(1).

3.     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.

4.     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.

5.      Section 41 (proscribed acts) states:

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

6.     The following issues arise:

1.	Does the National Court have power to order early release?

2.	Has a breach of human rights been proven?

3.	What orders should the Court make? 

1	DOES THE NATIONAL COURT HAVE POWER TO ORDER EARLY RELEASE?

7.     Ms Kajoka, for the respondents, submitted that the Court has no jurisdiction because once it has sentenced a prisoner it has no further power to exercise. She submitted that the National Court is constrained by existing laws that confer on specialist bodies, in particular the Parole Board, the power to grant early release to prisoners. She relies on comments I made 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. 

8.     I dealt with the same submission that Ms Kajoka makes in this case, in Heni Elly v Commissioner of the Correctional Service (2018) N7629 and Simon Liliura v Commissioner of Correctional Service (2019) N7917. Nothing I said in Endekra had anything to do with human rights. Endekra was about the criminal jurisdiction of the National Court: the power of the sentencing judge to revisit a sentence and decide whether part of a prisoner’s sentence should be suspended after serving a minimum period in custody. I followed what the Supreme Court had ruled in Daniel Ronald Walus v The State (2007) SC882: the sentencing Judge does not have that power, as that would amount to usurping the powers of the Parole Board. Neither the Supreme Court in Walusnor I in Endekra addressed the power of the National Court under its human rights jurisdiction conferred by s 57(3) of the Constitution to “make all such orders and declarations as are necessary or appropriate” in the case of a prisoner whose rights or freedoms have been infringed. 

9.     The National Court has 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. I note that the State has appealed against my decision in Mal, which was to grant early release to a prisoner who was seriously ill and could not obtain proper medical treatment in custody. However, the appeal has not been heard yet. I reiterate that it is the infringement of guaranteed rights and freedoms that enlivens the jurisdiction of the Court under ss 57(1) and (3) of the Constitution to grant early release. 

10.     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.

11.     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).

12.     The National Court has jurisdiction under ss 57(1) and (3) of the Constitution to order early release of a prisoner as an enforcement of human rights if a breach of human rights is proven and the Court considers that it is necessary or appropriate to so order. 

2	HAS A BREACH OF HUMAN RIGHTS BEEN PROVEN IN THIS CASE?

13.      Ms Kambao, for the applicant, submits that the applicant’s human rights have been breached as inadequate attention has been paid to the applicant’s serious medical condition, which has been ongoing since 2011. At that stage he had been in custody for two years. He became ill, suffering severe epigastric (upper abdomen) pain associated with melaena (blood in faeces) and haematemesis (vomiting blood). This required careful care and attention but the condition has been left to develop unchecked. In 2016 the applicant filed a human rights enforcement application, HRA No 54 of 2016,to enforce his human rights. This resulted in orders for medical treatment and an order of 23 February 2017 in the following terms:

The Commanding Officer of Bomana Correctional Institution shall take all necessary steps with effect from 2 March 2017 to provide and implement a special schedule of meals for the applicant consisting of at least one meal each day containing fresh protein, that is not tinned fish or tinned meat, and fresh vegetables.

14.     There have been problems, however, with the implementation of that order. On several occasions the applicant has approached the Court to complain about its implementation or get clarification about the terms of the order. Ms Kambao submits that the failure of the Correctional Service to comply with the order has put the applicant in a life-threatening position, as shown by a number of recent medical reports that have been adduced in evidence.

15.     On 5 February 2019 Dr Mitchell Masin, Senior Surgical Registrar, Port Moresby General Hospital, stated:

Gibson Alabain presented to Port MoresbyGeneral Hospital surgical ward on 29 January 2019 with symptoms of epigastric pain associated with melaena stools and haematemesis. He has had the problem since August 2011.

Since he is an inmate at Bomana prison, his condition has not been aggressively treated and investigated. … He would require to undergo a variety of tests and treatment to fully investigate his condition and manage it accordingly.

For now, the symptoms are leading towards peptic ulcer disease with cancer of the oesophagus, stomach, and pylorus to be ruled out from tests. …

It is my medical opinion that he should be allowed to serve his sentence outside of prison under the care and supervision of a probation officer to fully investigate and treat his medical condition. 

16.     On 20 May 2019 Dr Sonny Kibob, Consultant Emergency Physician, Port Moresby General Hospital, stated:

I have seen and treated this patient over the last few years with severe and worsening symptoms of epigastric pain and vomiting of blood. Whilst in prison he has lost 6 kg of body weight in the last few months and his general health is on a steep decline more so now then his first visit to the emergency department of PMGH. Thus he is categorized in the “extremely high” risk patients for severe epigastric bleeding hence resulting in death from haemorrhage or excessive blood loss. …

Given the above recurrent medical condition, I strongly recommend that patient Gibson Alabain be let to serve his time outside the cellor prison under the care and guidance of a probation officer where his medical condition and health can be better managed and prevented from complications leading to drastic irreversible outcome. 

17.     On 4 February 2020 Dr Jack Amana, Cardiologist, Port Moresby General Hospital, stated:

I had the pleasure of seeing the above client who has been on triad therapy for gastric ulcer since 2015.

He had a gastroscopy done confirming multiple gastric ulcer easily bleed when touched [sic].

Since then he has been on omeprazole, Augmentin and metronidazole. He frequently has haematemesis …

It is very alarming and life threatening when he can lose a lot of blood and can cause hypovolaemic shock due to low haemoglobin.

With his ongoing medical issues, I am therefore wholeheartedly recommending him to be paroled or licensed based on the unpredictable nature of his illness.

18.     Ms Kambao submitted that the failure of the Correctional Service to implement the National Court order has prevented the applicant from being able to deal with his medical condition and this has put the applicant in a life-threatening position. He remains on a poor diet, which fails even to meet the minimum nutritional standards set for fit and healthy prisoners (see Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651 and Dr Theo Yasause v Kiddy Keko (2017) N6853). 

19.     Ms Kajoka acknowledged that there has not been strict compliance with the order of 23 February 2017. However, she maintained that there has been substantial compliance and that there is no evidence that the applicant’s medical condition has been caused by a poor diet or that the applicant’s life is threatened. She points to evidence from the Jail Commander, Bomana Correctional Institution, Superintendent Yelly Oiufa, who states:

From my current observation of the applicant in Bomana Correctional Institution, he is physically and mentally well and on his feet moving around and in good shape. He comes out for the morning daily roll calls with the rest of the prisoners, communicates and blends in well with other prisoners during the day and returns to his cell in the evening for lock-up with the rest.

He is not in bed but generally up and moving around just like any other prisoner and gets his special ration diet to cook for himself every evening.

We do not engage him in any prisoner daily work parties but let him move around within the High Security Unit.

His medical or health issues are always addressed by being treated at the institution clinic or referred to Port Moresby General Hospital for further medical assessment or treatment as and when required. 

20.     Based on the above evidence and submissions, I find that:

•	the failure to comply strictly with the Court’s orders means that the applicant has been denied the full protection of the law, amounting to a breach of human rights under s 37(1) of the Constitution; 

•	there has been no breach of the right to be treated with humanity and with respect for the inherent dignity of the human person (for the purposes of Constitution, s 37(17)) as I am satisfied that the Correctional Service has been reasonably diligent in getting treatment for the applicant at the hospital as and when required;

•	though there is medical opinion that the applicant ought to be released from custody, I am satisfied that his ailments are being appropriately managed and that he is on medication and therefore I find that he is not being treated harshly, oppressively or in any other way proscribed by s 41 of the Constitution.

3	WHAT ORDERS SHOULD THE COURT MAKE? 

21.     If a prisoner establishes a breach of human rights committed in the course of his incarceration, it does not necessarily follow that he 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 s 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 ss 57(1) and 57(3) of the Constitution.

22.     The applicant has proven a breach of his right to the full protection of the law, due to the inconsistent compliance with the order that he be provided a special diet. The Court therefore has a discretion to exercise: whether it is necessary or appropriate to order early release, under s 57(3).

23.     In exercising that discretion, I take into account the considerations identified in Mal’s case, in particular: (a) the nature and extent of the prisoner’s medical condition, (b) the length of time the prisoner has spent in custody, (c) the proportion of the sentence served, (d) whether the prisoner is eligible for parole, (e) the nature and circumstances of the offence of which the applicant was convicted, (f) whether the prisoner’s release poses any threat to public safety, (g) the attitude of the victims of the crime committed by the prisoner, and (h) public perception.  

24.     I consider that:

(a)	the applicant’s medical condition is serious, but manageable and not life-threatening;

(b)	the applicant has spent about 11 years, 6 months in custody; 

(c)	he has served 38% of his total sentence of 30 years, but when it is considered that with the statutory one-third remission enjoyed under s 120 of the Correctional Service Act, his effective sentence is 20 years, he has actually served 58% of his sentence;

(d)	my preliminary view, which I express without deciding formally, is that the applicant is eligible for parole, having been sentenced in 2011, well before the 2018 amendments to the Parole Act made a prisoner in his position eligible for parole after serving 50% of his sentence, and thus served one-third of his sentence;

(e)	the offence of which the applicant was convicted is very serious; 

(f)	there is no evidence that his release would pose any threat to public safety;

(g)	the current views of the relatives of the deceased victim of his crime are not known (Ms Kambao referred to evidence from 2015 from a ward councillor that part-compensation had been accepted, but there is no recent evidence that would show full compensation has been paid or that there had been real reconciliation or that there would be no problems if the applicant were to be granted an early release);

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

25.     None of the above matters strongly favours the exercise of discretion to order early release. The application for early release will therefore be refused.

REMARKS

26.     The applicant should consider filing a new human rights enforcement application to clarify his due date of release from custody (presently shown on his CS file, with remission, to be 24 January 2030, which may not be correct) and his date of eligibility for parole.  

ORDER

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

(2)	For the avoidance of doubt, the order of 23 February2017 in HRA No 54 of 2016 and all other orders requiring the Jail Commander, Bomana Correctional Institution, to provide and implement a special schedule of meals for the applicant, remain in force. 

(3)	The proceedings are thereby determined and the file is closed. 

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