SC2091

PAPUA NEW GUINEA
 [IN THE SUPREME COURT OF JUSTICE]

SCR NO. 1 OF 2018

 SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19(1)

Reference by LESLIE MAMU as the PUBLIC SOLICITOR of Papua New Guinea

In the matter of the DEATH PENALTY

Waigani: Kandakasi DCJ, Manuhu, Makail, Kariko & Miviri JJ
2020: 16th June & 26th October

SPECIAL REFERENCE – Special Reference by Public Solicitor – Questions relating to interpretation and application of certain constitutional provisions – Prisoners awaiting execution of death sentence – Constitution – Section 19 

 PRACTICE & PROCEDURE – Appropriateness of a Special Reference – Whether issue of prolonged delay in execution of death sentences may be enforced by human rights application in National Court – Referrer has some ulterior and improper motive  –  Abuse of process  – Questions posed are vexatious – Constitution  –  Section 57 – Supreme Court Rules – 0.4, r18 

Cases Cited:
Papua New Guinea Cases

Re Human Rights of Prisoners sentenced to death (2017) N6939
Alois Erebebe & Taros Togote v. The State [2013] SC 1228
Ronald Rimbao v. Don Pandan [2011] SC 1098
Telikom (PNG) Ltd v. Kila Rava [2018] SC 1694
Michael Wilson v. Clement Kuburam [2016] SC 1489
Jacob Popuna v. Ken Owa [2017] SC 1564
Pruaitch v. Manek [2019] SC 1884
Special Reference Pursuant to Constitution, Section 19(1), Reference by the Bougainville Executive [2020] SC 1952
SCR No 2 of 1981; Electoral Re Boundaries [1981] PNGLR 518

Overseas Cases

Pratt & Morgan v. The Attorney- General for Jamaica [1994] 2 AC 1
Henfield v. The Attorney- General of the Commonwealth of the Bahamas [1997] AC 413

Counsel:

Mr. L. Mamu, for the Referrer
Ms. M. Koralyo, for the First Intervener (Ombudsman Commission)
Mr. T. Tanuvasa, for the Second Intervener (Attorney- General)

JUDGMENT

26th October, 2020

1.	BY THE COURT: The Public Solicitor filed this Special Reference under s.19 of the Constitution seeking the opinion of this Court on questions relating to the interpretation and application of certain constitutional law provisions in respect of prisoners awaiting execution of their death sentences. 

Questions

2.	Some of the referred questions were abandoned at the hearing, leaving the following questions (as appropriately amended):

Question (i):  

Does the delay in executing a death sentence for more than six (6) years from the date of sentence constitute inordinate, undue and unreasonable delay and amount to inhuman treatment, thereby constituting a breach of Section 36 of the Constitution, as:

(a)	Torture?; and/or,
(b)	Cruel treatment?; and/or,
(c)	Inhuman treatment?’ and/or,
(d)	Cruel punishment?; and/or,
(e)	Inhuman punishment?; and/or,
(f)	Treatment and/or punishment that is inconsistent with respect for the inherent dignity of a person?

Question (i) (A): 
Can the delay in the executing a death sentence for more than six (6) years from the date of sentence constitute a breach of s.37(17) of the Constitution as:
(a)	Inhuman treatment of a person deprived of his/her liberty?; and/or,
(b)	Treatment of a person deprived of his/her liberty which does not respect the inherent dignity of the human person?

Question (i)(B): 
Can the delay in the execution of the death penalty (sentence upon conviction) for more than six (6) years from the date of sentence be described as a circumstance of the killings as provided under Section 36(2) of the Constitution?

Question (i)(C): 
If the answer to Question 1(B) is yes, then does it comply with Section 37(17) of the Constitution or is it harsh and oppressive or otherwise as proscribed act pursuant to Section 41 of the Constitution, or is it not reasonably justifiable in a democratic society having proper regard for the right and dignity of mankind pursuant to Sections 38 and 39 of the Constitution?

Question (ii):  
If the answer to any or any part of Questions (i), (i)(A, (I)(B)or (I)(C) is yes, does the delay reveal inadequacy in the execution procedures and mechanisms thereby rendering the death sentence incomplete and consequently unconstitutional?

Question (iii):  
If the answer to (ii) is negative, then whether commuting the death  sentence to life imprisonment is available to remedy the breach of s 36,37(17), 39 and 41 of the Constitution and/or its obligations under Article 7 of the International Covenant on Civil and Political Rights and the United Nations Human Rights Convention under Section 57 of the Constitution or otherwise by the inherent power of the Court under Section 155(4) of the Constitution?  

Back ground facts 

3.	Summarized, the facts stated in the Amended Special Reference that gave rise to the Reference are:	

(1)	Prisoners Alois Erebebe and Taros Togote were convicted by the National Court on nine (9) counts of wilful murder and sentenced to thirty (30) years imprisonment in respect of five (5) of the counts, and to life imprisonment for the remaining counts.

(2)	The prisoners unsuccessfully appealed their convictions to the Supreme Court, but on cross-appeal by the Public Prosecutor against their sentences, the Court on 2nd May 2013 set aside the sentences of the National Court and substituted death sentences in their stead.

(3)	It has been more than six (6) years since the death sentences were imposed, and the prisoners still await their execution.

Abuse of process

4.	In the course of submissions by the Public Solicitor, it became clear that this Reference was prompted by the judgement of his Honour Cannings J in Re Human Rights of prisoners sentenced to death (2017) N6939. This Court noted that there was an appeal against that judgement which this same bench was scheduled to hear later that week, and Mr Mamu was therefore directed to refrain from arguing the merits or otherwise of that decision that may touch on the appeal.

5.	In due course, it emerged that Mr Mamu’s submissions centred around the discussions of the majority (Gavara-Nanu J, Hartshorn J, Yagi J and Makail J) in the Supreme Court case of Alois Erebebe  & Taros Togote v The State (2013) SC1228 in regard to the elapse of time for persons awaiting execution after imposition of a death sentence against them, and whether a long wait might amount to inhuman treatment and therefore a breach of s.36(1) of the Constitution. Cannings J referred to that case in his observations on the same issue in Re Human Rights of prisoners sentenced to death (supra) at [69]-[74]. 

6.	After pointing out that there was no legal impediment to the execution of five (5) of the fourteen (14) prisoners then under the death sentence in this country, his Honour suggested that unreasonable delay in the execution of a death sentence may amount to inhuman punishment contrary to s.36(1) of the Constitution, that could justify a permanent stay of execution, and commutation of the sentence.

7.	His Honour further noted that the majority in Alois Erebebe  & Taros Togote v The State (supra) cited with approval two Privy Council decisions, Pratt & Morgan v The Attorney-General for Jamaica [1994] 2 AC 1 and Henfield v The Attorney-General of the Commonwealth of the Bahamas [1997] AC 413,“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.”

8.	Based on those remarks, His Honour intimated that if the 5 years period was used as the bench mark, a reasonable argument could be made that the protection under s.36(1) of the Constitution is breached where a prisoner under a death sentence has waited for longer than 5 years for his execution. However, his Honour added that “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.” (Our emphasis)

9.	When Mr Mamu was asked during exchange with the Court as to whether this Reference is for the benefit of all prisoners on “death row” awaiting execution, he replied that it is based solely on the case of the prisoners Alois Erebebe and Taros Togote. It became obvious that the Public Solicitor was asking this Court, through this Reference, to determine that having waited for their execution for over six years, these prisoners’ human rights have been infringed, and that commutation of their death sentences to life imprisonment is available to them as remedy. 

10.	With respect, the Public Solicitor should have taken heed of the proper advice of Cannings J to try the relevant issues in the National Court “on a case-by-case basis” by making application for enforcement of human rights under s.57 of the Constitution, and sought appropriate relief. 

11.	In our view, this Reference has been incorrectly invoked and we find this to be an abuse of process. 

12.	This Court has inherent power to control its own processes: Ronald Rimbao v Don Pandan (2011) SC1098.  That power is exercisable where there is an abuse of the court’s process. Circumstances that may give rise to an abuse of process are not closed; Telikom (PNG) Ltd v Kila Rava (2018) SC1694. In Michael Wilson v Clement Kuburam (2016) SC1489 Gavara-Nanu J observed at [25] that:

“the types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced.”

13.	These remarks were cited with approval in subsequent Supreme Court cases including Jacob Popuna v Ken Owa (2017) SC1564 per Gavara-Nanu, Kariko and Kassman JJ; Telikom (PNG) Ltd v Kila Rava (supra) per Injia CJ, Hartshorn and Higgins JJ, and Pruaitch v Manek (2019) SC1884 where the Court (Kandakasi DCJ, Shepherd and Berigan JJ) stressed that the court’s power is to “protect itself from abuse and thus safeguard the administration of justice”. 

14.	There is no issue that the prisoners are entitled to file for enforcement of human rights under s.57 of the Constitution in the National Court, but to bypass that course and seek effectively the same relief in the guise of a Reference in this higher Court is in our opinion not consistent with fostering public confidence in the administration of justice, and that is an abuse of process.

O4 r18

15.	We also view O4 r18 of the Supreme Court Rules as relevant. That Rule provides:

“The Court may decline to give an opinion on the question the subject of the reference or special reference if in the opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.”

16.	In the recent case of Special Reference Pursuant to Constitution, Section 19(1), Reference by the Bougainville Executive (2020) SC1952, Cannings J expressed meanings to be accorded to the four different situations described in O4 r18 where the Court may refuse to answer referred questions. As to whether a question may be considered “vexatious”, we endorse his Honour’s statement that this may include a question that is asked “because the referrer has some ulterior and improper motive”. 

17.	In the present Reference, we find it improper that the Supreme Court has been asked questions for answers that would pre-judge the determination of a claim available to the prisoners to file in the National Court in the first instance. 

18.	That apart, it is noted that Question (ii) does not even raise a constitutional issue, so that question certainly cannot be dealt with; SCR No. 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518.That would then render it unnecessary to determine Question (iii) as that is reliant on the answer to Question (ii).  

Conclusion

19.	We find this Reference to be an abuse of process.

20.	We further consider the questions posed as vexatious.

21.	Accordingly, we decline to answer them.
____________________________________________________________________
Public Solicitor: Lawyer for the Referrer
Acting Legal Counsel, Ombudsman Commission: Lawyer for the First Intervener
Solicitor General: Lawyer for the Second Intervener