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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 80 OF 2017
BETWEEN
COMMANDER OF BEON CORRECTIONAL INSTITUTION
First Appellant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant
AND
KATHERINE MAL
Respondent
Waigani: Kandakasi DCJ, Makail & Anis JJ
2021: 25th May &
2022: 6th January
APPEAL – appeal against order for early release of prisoner on medical grounds – prisoner serving criminal sentence - application for enforcement of human rights or freedom on medical grounds – medical condition present at time of sentence and taken into account - no prove of breach of a human right or freedom - breach inferred from fact of imprisonment – National Court’s jurisdiction to order early release – power to grant early release conferred on Parole Board and Advisory Committee on the Power of Mercy – erroneous usurping the powers of – appeal upheld - Constitution – Sections 57, 151 & 152 – Parole Act – Sections 7, 17, 21 & 22
CAUSE OF ACTION – claim against the State - condition precedent – notice of intention to make a claim – section 5 Claims By and Against the State Act - whether notice applies to application for enforcement of a constitutional right or freedom – the requirement for notice applies to claims for enforcement of a constitutional right under s. 57 of the Constitution.
HUMAN RIGHTS –freedom from inhuman treatment – right to full protection of the law – alleged breach of – need to establish claim by evidence – no evidence establishing breach of a right or freedom – inferring breach from applicant serving criminal sentence - relief – order for early release of prisoner – nature of powers under s 57 of the Constitution – no power to order early release –Constitution – Sections 36, 37 &57
COURTS – powers of the National Court – early release of prisoner – power vested in Parole Board and others - National Court functus officio after pronouncement of sentence – application for enforcement of human right or freedom under s 57 of the Constitution – power to enforce constitutional rights and freedoms - nature of – not overriding other authorities and processes - usurping of – judicial activism – need for judicial restraint – legal concepts used to define how judges interpret and apply the written law – identification of cases appropriate for judicial activism – principle of separation of powers – courts’ duty is to interpret and apply the law as passed by Parliament - courts not empowered to legislate in guise of statutory interpretation.
STATUTORY INTERPRETATION - provisions of the Constitution and all Acts of Parliament must be given a fair, large and liberal meaning so to give meaning and effect to the intention and purpose of the legislation – exceptions interpretation likely to cause injustice or mischief – courts cannot legislate in the guise of any statutory interpretation – need for recognition and appreciation of the doctrine of separation of powers – Parliament as power to legislate while the courts have the power and duty to interpret and apply the law.
WORDS & PHRASES - “enforcement” – the word as a verb means to compel someone to comply with something or causing something to happen by force or necessity or is the process of making people obey a law or rule, or making a particular situation happen or be accepted” - “damages” as a matter of law means, a court’s estimated compensation in money for detriment or injury sustained by the plaintiff in contract or tort – “claim” is an assertion, statement, allegation or averment which may be coupled with a demand or request or a call for a remedy or redress of a breach or damage done to one’s person or property right or interest recognised, granted or protected by law – Claims By and Against State Act - ss 2 (2) and 5 (1).
Facts
The respondent an adult female of 55 years was convicted of murder and sentenced on 20th February 2012 to a term of imprisonment of 16 years and 9 months at Beon Correctional Institution. Prior to her conviction and sentence, she had a history of type 2 diabetes and hypertension and a known patient at the hospital. While serving her term of sentence, she filed a human rights application. She alleged that she was denied medical assistance by the appellants, and she suffered a mild stroke and was hospitalised. The National Court upheld the respondent’s application for early release, and ordered the appellants to release her from prison on condition that she keep the peace and be of good behaviour until the due date for the end of her sentence on 22nd November 2028. The Court further ordered that the appellants are at liberty to apply by originating summons for an order of her return to custody if she breached her condition of release. The Court took s 57(1) & (3) of the Constitution as conferring it power to order early release of the respondent. The appeal turned on four main grounds. Firstly, whether it is mandatory to give notice of intention to make a claim under s 5 of the Claims By and Against the State Act, 1996 (CBASA) in an application for an enforcement of a human right or freedom under s. 57 of the Constitution. Secondly, on the question of whethers 57 of the Constitution conferred power on the National Court to order early release of the respondent for breach of rights and freedoms under s 36 and s 37 of the Constitution. Thirdly, whether it is mandatory to give notice of intention to make a claim under s 5 of the Claims By and Against the State Act, 1996 (CBASA) in an application for an enforcement of a human right or freedom under s. 57 of the Constitution. Finally, whether the respondent established by appropriate evidence a breach of her right or freedom to warrant the early release order.
Held:
Cases Cited:
Papua New Guinea Cases
The State v. Nimbituo (2020) SC1974
The State v. Downer Construction (PNG) Ltd (2009) SC979
Re Jurisdiction of the Leadership Tribunal (2019) SC1852
Minister for Lands v.William Robert Frame [1980] PNGLR 433
Dr Allan Marat v. Hanjung Power (2014) SC1357
Joshua Kalinoe v. Paul Paraka; Hon Bire Kimisopa v. Paul Paraka (2014) SC1366
Ruth Kaurigova v. Dr Russo Perone & Ors (2008) SC964
Eremas Wartoto v. The State (2015) SC1411
Re Application of Paul Tiensten (2014) SC1343
The State v. Kenneth Kunda Suine(2021) SC2070
Daniel Ronald Walus v. The State (2007) SC882
The State v. Tamate & Ors (2021) SC2132
The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 41
POSF Board v. Sailas Imanakuan (2001) SC677
Mark Ankama v. Papua New Guinea Electricity Commission (2002) N2362
Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980
The State v. Lotivi Mal & Ors (2012) N4591
Thress Kumbamong v. The State (2008) SC1017
Tamara Player Tomscoll v. The State (2012) SC1208
Cove (PNG) Ltd v. Kama (2020) SC1961
Kanga Kawira & Ors v. Kepaya Bone & Ors (2017) N6802
Peter Makeng & Ors v. Timbers (PNG) Limited & Ors (2008) N3317
Sam Koim v. Peter O’Neill & Ors (2015) N6558
Application by the Honourable Belden Namah, MP (2021) SC2114
Don Polye, MP v. The Hon. Theodore Zurenuoc, MP & Ors (2016) SC2039
Re Petition of Michael T. Somare [1981] PNGLR 265
Morua v. China Harbour Engineering Company (PNG) Ltd (2020) N8188
Catherine Mal v. Commander of Beon CIS & The Independent State of Papua New Guinea (2017) N6710
Patrick Move v. Provincial Station Commander (2016) N6396
Mision Asiki Manasupe Zurenoc (2005) SC797
Paul Tohian v. Tau Liu (1998) SC566
Kokopo Building & Maintenance Ltd v. Department of Police (2005) SC786
Nikint Investment Ltd v. Thomas Niganu (2020) SC1919
State v. Nimbituo (2020) SC1974
Re Applications for early release from custody by John Carl Endekra (2009) N3838
Overseas Cases
Roach v. Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162
Rowe v. Electoral Commissioner (2010) 243 CLR 1
Other Text & Materials
J. Allan, “The Three ‘Rs’ of Recent Australian Judicial Activism: Roach, Rowe and (No) ‘Riginalism”, Melbourne University Law Review (2012) Vol 36(2):743
Counsel:
Mr. T. Tanuvasa with Mr T. Mileng & Ms A. Kajoka as counsel assisting, for the Appellants
Mr. L. Mamu, for the Respondent
JUDGMENT
6th January 2022
Issue 1 - Whether the provisions of s 5 of the CBASA applies to applications or claims for enforcement of human rights?
“6. 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) The provisions of this Act 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 and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.”
“Notice of claims against the State.
(1) 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 by the claimant to...”
(Underlining supplied)
“...various Supreme Court decisions have considered “claim” in s. 5(1) Claims Act and stated that it includes applications for enforcement and compensation for a breach of Constitutional rights under s. 57 and s. 58 Constitution, and given that the National Court is bound by decisions of the Supreme Court, the question whether notice pursuant to s.5(1) Claims Act was required to have been given in this case should have been considered by the primary judge when the proceeding initially came before him. If this issue was not raised by the State, then in our view, it was incumbent upon the primary judge to raise the issue upon his own motion.”
“This is especially the position in our view, as the Supreme Court has consistently maintained that the requirement to comply with the Claims Act is a condition precedent that must be complied with before a proceeding is issued: Paul Tohian v. Tau Liu (1998) SC566; Kokopo Building & Maintenance Ltd v. Department of Police (2005) SC786 and Nikint Investment Ltd v. Thomas Niganu (2020) SC1919.”
“I ... searched a number of legal and ordinary English language dictionaries for the meaning of the word “claim”. Leaving the everyday English language usage aside, the use of the word in the legal sense leads to this definition. A claim is an assertion, statement, allegation or averment which may be coupled with a demand or request or a call for a remedy or redress of a breach or damage done to one’s person or property right or interest recognised, granted or protected by law. Bringing a suit or taking court action is not an essential element in the definition of a claim. Hence, a claim may be made without necessarily having issued a “suit” or a “court action”. Clearly, therefore, there is a distinction between, the word “suit” and “claim” with the later forming the foundation for a “suit” since a “suit” is usually an action taken by a party seeking to enforce his or her claim. In other words, a “claim” becomes the basis for a “suit”.”
(Underlining supplied)
“44. As the case before us concerns the interpretation of the Constitution and other Constitutional Laws, it is important that we remind ourselves and be guided by the principles governing the interpretation of those laws. Those principles are now well settled in our jurisdiction. It started with the often-cited views expressed by Wilson J in PLAR No 1 of 1980 [1980] PNGLR 326, who said:
‘There is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the “mischief” rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give ‘paramount consideration to the dispensation of justice’.
45. A good number of subsequent decisions of the Supreme Court and the National Court have consistently allowed themselves to be guided by these principles. A good example of that is the decision of the Supreme Court in SC Ref No 1 of 2000 Re Validity of Value Added Tax Act (2002) SC693.There, the Court, having regard to the provisions of Schedule 1.5 (interpretation) of the Constitution said:
‘Going by this expressed dictation in the Constitution ... it is now an accepted principle of both constitutional and other statutory interpretation, that provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. This is so as to give effect to the intent of Parliament behind the provisions in question. There is a long line of case authority on that.’
46. There are, however, two well-known exceptions to the above position of the law. The first is in cases where the words used in the legislation are so plain and clear that no art of interpretation is required. The second exception is in the area of tax legislation, where the strict interpretation rule applies. The reason for this exception is simple. For the imposition of a tax or charge against a subject, a clear and unambiguous intention needs to be shown in the statute. A failure to do so would result in an interpretation that is favourable to taxpayers. (See PNG Power Ltd v Ian Augerea (2013) SC1335 and the dissenting view of Kandakasi J, as he then was, in The State v Downer Constructions (PNG) Ltd (2009) SC979 and his Honour’s view in Special Reference by the Attorney-General (2016) SC1534 at para 65.)”
“Viewing the CBASA broadly [as] did the minority view in the Downer Construction ... would render it necessary for anyone having a claim against the State to give notice of their intention to make a claim against the State first. This ties in well with the whole purpose of requiring the giving of notice, which is to give the State early notice of one’s intention to make a claim to enable the State to make its own enquiries and decide whether to settle or defend the claim... Such a broad approach also avoids discrimination against different litigants based more on what process they chose to use rather than having only one requirement to apply to all claims against the State. Whilst we appreciate that Parliament can discriminate by legislation, it is restricted to assisting an already disadvantaged group of people, such as children for their protection and elevating their position to some acceptable levels. The opposite cannot be allowed to be the case. Hence, when it comes to statutory interpretation, the Courts are duty bound to be mindful of this and ensure that, in their interpretation and application of the law, there is no discrimination or mischief caused except as may be expressly provided for by any positive legislation for good reason.”
“The provisions of this Act apply to claims for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.”
Or simply state in s 2 (2):
“The provisions of this Act do not 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.”
(2) Correspondingly or alternatively Parliament could have added the phrase “Except for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution,” to s 5 (1) of the CBASA and for it to read as follows:
“Except for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution, 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 by the claimant to ...”
Issue 2 - Did the National Court become functus officio upon the pronouncement of the respondent’s sentence in the criminal charge against her and therefore lacked the necessary jurisdiction?
“The Correctional Service Act 1995 codifies the law on the establishment and operation of the Service, and provides for its functions and powers, as well as the functions and powers of its members, commencing with that of the Commissioner of the Correctional Service. By definition, ‘members’ are the correctional officers in the employ of the Service. In a hierarchical system of administration, the Commissioner as head of the Service (a ‘State Service’ pursuant to s 188(2) Constitution), has specific duties and responsibilities under s 13 of the Act.”
“(a) enter premises occupied by or used by the Service; and
(b) summon a person whose evidence appears to be material to the determining of any subject of inspection, inquiry or investigation conducted by the Commissioner; and
(c) take evidence on oath or affirmation and for that purpose administer oaths and affirmations; and
(d) require any person to produce documents within his possession or subject to his control.”
“Informal mechanisms and external supervision for dealing with the incidents that the applicant relies on for his application are well catered for, in our opinion, on the legislation itself by those elaborate provisions under Part VIII. The “Visits” provisions in particular provide easy access for complaints and concerns such as the ones raised by the applicant here to be taken up directly.”
“Applying the law to the circumstances of this case, it is our judgment that the instances of harassment, use of abusive and threatening language, and hurling of stones at and against the applicant by fellow inmates of the Bomana Correctional Institution do not, individually or in combination, constitute exceptional circumstances. We accept the submission of learned counsel for the State that these instances are matters within the administrative responsibility of the Commissioner for Correctional Service. And within the institution itself, as with all other correctional institutions throughout the country, the Commanders have direct duties and responsibilities under the Act, as outlined above”.
(Underling supplied)
“The complaints and concerns of the applicant, which we accept, in the absence of evidence to the contrary, had, not one, but several avenues for ventilating and obtaining relief and remedies. These very issues and concerns are the very subject matters of the provisions under the Act regarding ‘welfare and safe custody’, ‘security and control’ within the statutory duties and responsibilities of both the Commissioner and Gaol Commander. Informal mechanisms or external supervision for dealing with the incidents that the applicant relies on for this application, are well taken care of in the legislation itself by the ‘Visits’ provisions. The outcomes of these visits can quite capably (if properly utilised by a prospective appellant, or indeed any inmate) provide the background and impetus for invoking s 57 Constitution (supra).”
(Underling supplied)
“Where an accused person is found guilty and is sentenced to serve a term of years in prison, there is the further process of the prisoner serving his or her time. By this time, the Courts have no power or jurisdiction to revisit the decision on conviction and sentence except only through an appeal or a review properly invoked by a prisoner. Also, by this time, a prisoner can only be released earlier than his or her due date for release through the parole process under the Parole Act 1991, or through the power of mercy process under s 151 and 152 of the Constitution and the Organic Law on the Advisory Committee on the Power of Mercy and or the process of being released on license under s 615 of the Criminal Code Act. The Correctional Service Act 1995 is also applicable. These relevant laws create and appropriately empower relevant authorities for each of these avenues and processes. These authorities are necessarily empowered amongst others to consider the public policy and other considerations before releasing any prisoner on parole, mercy or license.The relevant provisions of the Constitution and the Acts of Parliament also provide for their respective process and procedures.Using the words of Constitution s 57 (6), the powers vested in the Courts by subsection 1 of the same provision, do not derogate from or otherwise override, diminish, restrict or limit the application of these further processes and procedures and the need to use the processes provided for by these laws. Hence, anyone wishing an early release from serving the whole of his or her term of imprisonment or is concerned about his treatment in the prison system in any manner or form, must use any one of these processes as appropriate. They are not permitted and cannot readily resort to the Courts under the guise of an application for an enforcement of a human right without first exhausting these available processes as appropriate. Resorting to the Courts without first exhausting the process provided for by law or outside what is provided for, would no doubt amount to an abuse of the Courts’ process.”
(Underlining supplied)
“Finally, and more importantly, once the sentencing judge has pronounced his sentence, he becomes functus officio. In other words, the sentencing judge has completed his duty and there is nothing left for him to do. The only exception would be in a case in which an Act of Parliament allows for a deferment of decision on sentence as in the case of s.19 (1) (f) (i) of the Criminal Code. Save only for such an exception, after a sentence has been pronounced and the prisoner starts serving his time, there is no power in a court except, on appeal, to revisit the decision on sentence. Also, whether or not a prisoner should serve the full term of his sentence or should be released earlier on conditions becomes the province of another authority, the Parole Board under the Parole Act 1991. That authority has the power to investigate and consider such evidence and reports required by the Act and then in appropriate cases, decide to release a prisoner earlier than the full term of his sentence after the prisoner had served a portion of his sentence in prison. Hence, a court would be usurping the powers of the Parole Board if it reserves to itself the need to revisit its decision on sentence and then decide whether or not part of the sentence should be suspended and if so, on what terms. It would also be usurping the powers of an appellate court without an appeal.”
(Underling supplied)
“1. Daniel Ronald Walus, having been convicted of the crime of unlawful killing, is sentence to 18 years imprisonment in hard labour, 10 years of which must be served and the balance of 8 years may be suspended by order of the National Court if and when an application for suspension is granted.
“2 For the avoidance of doubt:
(a) the suspension of the above sentence will only come into effect if and when ordered by the National Court; ...”
“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.”
“... Courts are there only to help resolve or determine disputes that cannot be resolved by the parties themselves despite their best endeavours to do so. All human conflicts and disputes are capable of settlement without the need for court action. That is possible only if the parties are prepared to allow for a compromise of their respective positions. People in other jurisdictions are already recognising the benefits of settling out of court as it brings huge savings to the parties in terms of costs and delay and help maintain good relations between the parties. This is why in other jurisdictions, out of court settlements are actively being pursued through what has become known as Alternative Dispute Resolutions or ADRs. We in Papua New Guinea have briefly talked about it in workshops and seminars but have not formerly embraced that into our court process and procedures. Work is now being undertaken to do that.”
“As the Supreme Court said in Public Officers Superannuation Fund Board v. Sailas Imanakuan.. at p. 24, all disputes and or conflicts between people are capable of settlement out of Court. Thus, only matters that cannot settle after all serious efforts toward that should go to the Courts with agreement on almost everything except of the points in real contest. This should produce succinct issues for trial in the Courts.”
Issue 3 - Was there evidence supporting the finding of a breach of the respondent’s rights or freedom?
“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.”
“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.”
“Her [the respondent’s) health is poor and has been for some years. 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. In a written statement attached to her pre-sentence report she complains that the Beon Jail commander denied her access to the natural foods that are required to be part of her diet in view of her diabetes, resulting in deterioration in her health to the point where she had to be hospitalised. Other senior correctional officers have also displayed a bad attitude. Widespread media coverage of her case has caused her to feel deeply ashamed. She feels that she may never do public work again or even show her face in public. She is not a threat to anyone. If she is given a non-custodial sentence she will leave the village for good. “My work which has been my life is effectively over as a result of this conviction. ... If the crime for which I have been found guilty warrants the taking of my life, then by putting me in prison, you [the court] will be achieving that outcome. If not, then I appeal for clemency and request for a non-custodial sentence”, she states.”
“It is not appropriate in these circumstances to suspend any part of the sentences. The favourable aspects of the pre-sentence reports, and the genuine attempts made by the offenders to reconcile, have already been taken into account in determining the head sentences.”
“It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This was made clear by this Court’s decision in Allan Peter Utieng v. The State,...which has been followed in a long list of National Court judgments including the recent decision in The State v. Danny Makao...
What this means is that, the medical conditions or other personal and family backgrounds and needs of an offender should not form any foundation for a lenient sentence unless, it is a case of life and death and no arrangements can be made administratively by the Correction Services for a prisoner with a medical condition to access and receive appropriate medical attention and treatment.”
(Underlining mine)
Respondent conceding
“With respect, had learned counsel for Covec properly considered and appreciated the law on point ... he would have reviewed his client’s affidavit and accepted the objections to its use. Apparently, he has not. That resulted in the arguments on the issue. This has unnecessarily taken up the Court’s time to hear the arguments, consider them and come to a decision on the application to amend promptly. What counsel did, with respect is contrary to the requirements of the Professional Conduct Rules 1989. Rule 15 (b) obligates a lawyer to “use his best endeavours to avoid unnecessary expenses and waste of the Court’s time.” Counsel’s failure to ensure the affidavits contained only facts and readily concede when objected to and thereby force arguments and require a decision of the Court on this point has wasted the Court’s time. This kind of conduct is becoming common place in our Courts by lawyers. In appropriate cases, lawyers should be made to account through appropriate orders for costs against them possibly on a solicitor and own client basis ... and not their clients. In the present case this will serve only as a warning today.”
“provide a clear and better avenue for the lawyers to discharge their duties promptly and bring about lasting, efficient and effective outcomes to their client as opposed to Court proceedings which can go around in a vicious circle, without any finality in sight for some time.”
Brief Facts
54. The human rights application was heard by the National Court in Madang on 25th March, 4th and 5th April 2017 and a decision was given on 8th May 2017. The National Court upheld the respondent’s application for early release and ordered the appellants to release her from prison on condition that she keep the peace and be of good behaviour until the due date for the end of her sentence on 22nd November 2028. It further ordered the appellants to apply by originating summons for an order of her return to custody if she breached her condition of release.
Appeal Grounds
55. The appellants appeal against this decision and rely on numerous grounds which may be summarised into four main grounds:
4.1 The National Court erred in fact and law in holding that the respondent is not required to giving notice under Section 5 of the Claims By and Against the State Act,1996 prior to commencing the human rights application.
4.2 The National Court erred in fact and law in failing to hold that the respondent failed to plead Section 57 of the Constitution as the legal basis of the human rights application. Consequently, the appellants were denied natural justice when they were not given the opportunity to respond to the human rights application.
4.3 The National Court erred in fact and law in ordering early release of the respondent when there was no evidence to support her assertion that she was ill and required specialist medical care outside prison for her recovery. On the other hand, the appellants had provided and facilitated her requests on numerous occasions for medical assistance including visits to her doctor for treatment.
4.4 The National Court erred in fact and law in ordering early release of the respondent when it lacked jurisdiction. The power to grant early release of prisoner is conferred on the Parole Board under Section 17 of the Parole Act and Section 615 of the Criminal Code or the Power of Mercy Advisory Committee under Sections 151 and 152 of the Constitution.
Order for Early Release
56. Notwithstanding the multiple grounds, the appeal turns on the question of whether or not Section 57 of the Constitution conferred power on the National Court to order early release of the respondent for breach of rights under Sections 36 and 37 of the Constitution. This question is identified in ground 3(v)(d)(i)-(v) of the amended notice of appeal filed by the Solicitor General on 15th September 2020. It was also the centre of the Public Solicitor’s submissions on behalf of the respondent. For this reason, my consideration of the appeal will be confined to this question.
57. The Solicitor General, Mr Tanuvasa of counsel for the appellants contended the National Court lacked jurisdiction to order early release of the respondent. Counsel relied on the recent Supreme Court decision in The State v. Kenneth Kunda Siune (2021) SC2070.
58. The Public Solicitor conceded that the National Court lacked jurisdiction to order early release of the respondent. He based the concession on the Supreme Court decision in The State v. Kenneth Kunda Siune (supra) which he submitted reinforced this proposition. He submitted that the decision in that case is good law and urged the Court to adopt it.
59. The Public Solicitor’s concession is commendable but respectfully, this Court is not bound by it. That decision is also not binding on this Court: see Schedule 2.5.9 (Subordination of courts) of the Constitution. And so the threshold issue in this appeal is whether or not Section 57 of the Constitution conferred power on the National Court to order early release of a prisoner for breach of rights and freedoms under Sections 36 and 37 of the Constitution.
60. The National Court relied on Section 57(1) & (3) of the Constitution to order early release of the respondent because it formed a view that it was necessary and appropriate for the purpose of enforcing and protecting the respondent from breach of her rights and freedoms under Sections 36 and 37 of the Constitution.The National Court held:
“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......”.
Enforcement of Rights and Freedoms-Constitution
61. Section 57 of the Constitution states:
“57. Enforcement of guaranteed rights and freedoms.
(1) 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.
(2) For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.
(3) 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).
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution”. (Emphasis added).
62. One may argue that the order for early release of a prisoner serving a long sentence for wilful murder on human rights grounds is unprecedented. There is merit in this argument. A prisoner may only be released from serving a sentence if the Supreme Court, on appeal or review, has upheld and quashed the conviction or sentence. It is rare to find a case where a sentence has been wholly suspended by the Supreme Court and the prisoner ordered to be released: cf Thress Kumbamong v. The State (2008) SC1017.
63. In this case, the National Court pointed out that it had power as a matter of “discretion” under Section 57(1) & (3) to order early release and listed factors that may be taken into account to determine whether or not an order for early release was appropriate. The Court said:
“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.
64. The National Court’s interpretation of Section 57 may be regarded as an expansion of the application of Section 57. It is not surprising that the Public Solicitor was not opposed to the view that Section 57 is not expressed to confer power on the National Court to order early release of a prisoner and that a clear error of law has been committed by the National Court when it ordered early release of the respondent.
Judicial Activism and Judicial Restraint
65. The view expressed by the National Court and that of the parties are demonstrative of the different interpretations given to Section 57. Each view carries with it a wider implication. The order sought to be impugned represents a tussle between two conceptions confronting judiciaries globally today. These are judicial activism and judicial restraint. These are legal concepts which described how judges interpret and apply the written law. The online definition of judicial activism by Wikipedia is:
“.......a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions”.
66. Legal scholars and commentators argue that judicial activism is legislating from the bench based on discretionary power conferred on judges. It is the assertion (or, sometimes, the unjustified assertion) of the power of judicial review to set aside government acts. On the other hand, judicial restraint is the refusal to strike down such acts, leaving the issue to ordinary politics.
67. It is argued that one of the benefits derived from judicial activism is the ability of the Court to be proactive in addressing injustice in society when those charged with the responsibility have failed. The opposite of that is, those against it would argue that the Court is overstepping its boundary or crossing the line and usurping the authority of the legislative and executive arms of government. Judicial activism may be regarded as a bold but dangerous move by judges as it may be regarded as a threat to the authority of the other two arms of government. The boldness comes from the judge’s Declaration of Office, Judicial Declaration and Declaration of Loyalty on the day of commissioning to serve “without fear or favour......”. By judicial activism, judges feel less constrained and conversely empowered to test the waters so to speak and tread a fine line between exercise of judicial power and exercise of executive power or legislative power.
68. In his article “The Three ‘Rs’ of Recent Australian Judicial Activism: Roach, Rowe and (No) ‘Riginalism” published in the Melbourne University Law Review (2012) Vol 36(2):743 at p 744, Professor James Allan of the T C Beirne School of Law of The University of Queensland when commenting on two decisions of the High Court of Australia in Roach v. Electoral Commissioner (2007) 233CLR 162 and Rowe v. Electoral Commissioner (2010) 243CLR 1 pointed out:
“Judicial activism is a hotly contested notion or concept, one that usually carries with it pejorative connotations. At its heart, the label ‘judicial activism’ suggests some degree of illegitimacy. The core charge is that the judges have exceeded their proper role in a democracy. They have moved from the many grey areas, or penumbras of doubt, involved in interpreting the laid-down statutes and constitutional provisions (where disagreement and diverging answers are only to be expected from individual judges who bring differing values, concerns, emphases and intellectual abilities to the task) into something that no longer looks like interpretation. It looks more like legislating from the bench, otherwise described as point-of-application judges imposing their own first-order moral and political preferences, judgment and sentiments on all the rest of us”.
Identification of cases-Judicial activism
69. As a starting point, it is helpful to identify the types of legal proceedings where there has been an increase, I would suggest, due to judicial activism.
(a) Judicial Review cases
70. First and traditionally, the legality of government decisions and acts have been questioned by way of judicial review. Over time, there has been an increase in judicial review cases due to its scope being expanded by the Courts and may I suggest that it has been attributed to judicial activism. In this jurisdiction it was not so long ago, Injia DCJ (as he then was) recognised the rise in such cases. That was in the context of an application for interim relief pending leave for judicial review in Peter Makeng & Ors v. Timbers (PNG) Limited & Ors (2008) N3317:
“The issue is an important one of interest to both judges and practitioners because of varying practices amongst practitioners and judges. In the first twenty years after Independence, judicial activism in the area of judicial review was limited to few cases. In the last ten years, there has been an increase of judicial review applications been filed. Many of those have been dealt with but there is still large number of them pending. Judicial review proceedings are now a growing area of judicial activity.” (Emphasis added).
71. In the judicial review proceedings case of Sam Koim v. Peter O’Neill & Ors (2015) N6558 Mr Koim as Chairman of the Task Force Sweep Team sought review of the decision of the National Executive Council (“NEC”) to abolish the Task Force Sweep Team, a body established by NEC based on a policy decision rather than by statute. It was argued by Mr Koim that the Court should review the decision of the NEC and set it aside regardless of whether it was a policy decision because the decision had adverse consequence on the Task Force Sweep Team (its disbanding) and contrary to public policy. In reinforcing the doctrine of separation of powers between the three arms of government, the Court observed:
“76. But the Defendants’ submission that not all executive acts or decisions were reviewable must be also acknowledged. For there are statutory decisions as in the cases of appointment and revocation of Departmental head and Heads of Statutory Bodies which are governed by statute and which are often subject of judicial review and there are policy decisions as in this case where there are no set procedures under any Constitutional Law or Act of Parliament by which the NEC must follow to arrive at a decision.
77. The reason for that distinction is that, our system of government is established by a written Constitution. There are three Arms of Government: The Legislature, The Executive and The Judiciary. This is recognised in Section 99 of the Constitution. The doctrine of separation of powers proceeds from it as well.
78. In a democratic system of government the doctrine of separation of powers is fundamental to the maintenance and survival of democracy. Governmental or State powers must be divided and kept separate amongst the three arms of government. Each arm must be weary and strive not to encroach on the powers of the other. At the same time there is a duty of each arm of government to check on the other’s exercise of powers. An effective system of check and balances within the democratic system of government are key factors to the maintenance and survival of democracy.
79. The Executive Arm is responsible for policies of the Government and it must be respected for that. For it is said that public interest plays a significant role in formulating and re-formulating policy decisions. It is the executive that formulate and re-formulate policies to meet the government’s goals and vision. The formulation and re-formulation of policies are based on wide ranging factors including economic conditions and law and order issues in the country. The decisions are also driven by different competing interests. It can be political, economic, social, private or public. For that, it is said that members of the executive are better placed and informed then judges to make those decisions.............”.(Emphasis added).
(b) Applications under Section 18 of Constitution
72. The second class of cases are applications under Section 18 of the Constitution. In recent times, there has been an increase in the number of cases filed by applicants in this area of litigation. The most recent one was heard and decided by the Supreme Court on 21st May 2021 in the Application by the Honourable Belden Namah, MP (2021) SC 2114. That was a case questioning the legality of the Parliament’s decision to adjourn its sittings to 20th April 2021 from 16th December 2020 while there was a pending motion of no confidence in the Prime Minister.
73. There were others before that one of them was Don Polye, MP v. The Hon. Theodore Zurenuoc, MP &Ors (2016) SC2039, a case that was factually like the recent Namah case (supra). The history of the growing body of cases in this area of litigation can be traced back to the decision of the Supreme Court in Re Petition of Michael T. Somare [1981] PNGLR 265. One may argue that the rise in these cases is attributed to judicial activism because judges have gone beyond their boundary (jurisdiction) to allow applicants to prosecute Section 18 applications if they were able to show that they had sufficient interest and that there were no other avenues by which they may seek redress. These types of cases broadly question the legality of decisions of Parliament and Speaker within the confines of the Constitution and relevant Organic Laws.
(c) Land and Environment Damage Claims
74. A small cluster of cases comprised of land and environmental damage claims and represented the third class as it is steadily evolving and building up. An injured party may rely on Section 57 of the Constitution to enforce breach of human rights to land and environment by way of compensation. It is an additional cause of action or if not, a shift from an action based on the common law tort of trespass or nuisance to enforcement of human rights under the PNG Constitution. I would further suggest that it should not come as a surprise if the rise in sea levels and displacement of local inhabitants of islands and low-lying coastal villages in Papua New Guinea may attract litigation for breach of human rights and enforcement under Section 57 of the Constitution.The Court adverted to this class of cases in Morua v. China Harbour Engineering Company (PNG) Ltd (2020) N8188 at para. 56:
“Any human activity that is taking place or likely to take place that as an adverse impact on the environment no doubt, gives rise to the risk of environmental damage which could give rise to a possible breach of the fundamental right of, right to life which is dependent on a safe and clean environment. If the activities are large scale and serious, they could single handedly cause serious environmental harm and damage. If they are smaller, a repeat of such activities over time or combined with other adverse human activity already occurring can have an adverse impact on the environment. Unless, government properly and sufficiently, legislate, control, monitor and evaluate consistently all human activity and take appropriate actions against offenders, the risk of adversely affecting the environment and hence the right to life is there. Hence, any person concerned with his or her own or that of others’ rights, has the right and opportunity to come to Court under s. 57 (1) of the Constitution. This provision already grants them the necessary standing to bring appropriate claims for enforcement or protection of human rights”.
Present Case
75. This case represents the National Court broadening its scope of judicial scrutiny and going beyond judicial review cases and enforcing rights and freedoms of individuals under Section 57 of the Constitution to correct what it found to be injustice in society because those charged with the responsibility have failed. The intention may well be good but there is no evidence that the respondent requested and the Commandant or officers of Beon Correctional Service and they have denied or refused the respondent access to adequate and specialist medical services and moreover, when judges seek to correct social injustice in society, it is wise to be weary of what Professor Allan said in his article at p 744 (supra):
“The gist of the judicial activism complaint, then, is a complaint about what the unelected top judges are doing – that they are gainsaying or second-guessing or circumscribing or redirecting the elected branches of government without any legitimate warrant or grounds for doing so”.
76. It is also helpful to note the caution by the Court in Sam Koim case (supra), “..........[e]ach arm must be weary and strive not to encroach on the powers of the other. At the same time there is a duty of each arm of government to check on the other’s exercise of powers......”.Otherwise, judges will be accused of legislating from the bench with less or no regard to the financial and policy considerations of the government of the day. Must judges refrain from granting orders where the law does not expressly grant, even where there is injustice in society? It comes down to which one of the views is consistent with the expressed terms of Section 57 of the Constitution.
77. I prefer the view proposed by the appellants in their submissions. On a plain reading of Section 57 of the Constitution, it is not expressed as conferring power on the National Court to order early release of a prisoner from prison for breach of rights and freedoms under Sections 36 and 37 of the Constitution. That power is conferred on the Parole Board pursuant to Section 17 of the Parole Act and the Advisory Committee on the Power of Mercy (“Advisory Committee”) pursuant to Sections 151 and 152 of the Constitution.
78. To say the least, the respondent is not without a remedy. First, if she is able to establish a case of injustice, she has recourse to the Parole Board to raise her grievance. Section 3 of the Parole Act establishes the Parole Board. Under Section 7, one of its functions is to consider cases of detainees who are eligible for parole in accordance with Section 17 and applications for parole under Section 22. The other is to grant orders for the release of detainees on parole where appropriate. Here there is a clear expressed intention by Parliament to assign the task to the Parole Board to consider cases of detainees and applications of detainees who have been refused parole and grant orders for their release on parole where appropriate.
79. Section 17 sets out the eligibility criteria for consideration for parole. Section 21 sets out the relevant matters which the Parole Board is guided by to arrive at a decision, one of them being “any available information which the Board considers relevant”. It may be argued that this provision is wide enough to include the issues which the respondent highlighted in relation to the assertion of her deteriorating health condition and need for adequate and specialist medical services. The evidence before the National Court, amongst others, comprised of a series of Medical Reports by Dr Weston Yambut of Modilon General Hospital, the latest was, 15th December 2016. These are relevant matters for the Parole Board to consider. A decision to grant parole to the respondent rests with the Parole Board.
80. Secondly, not much has been said about the Advisory Committee and what it has done over the years, but it plays a significant role in the context of serving prisoners or what I would describe as ‘life after court’, for those prisoners whose appeals or reviews of their convictions and sentences have been exhausted.The respondent also has recourse to the Advisory Committee for consideration for pardon, remission, or commutation of sentence, etc.
81. For completeness, Section 151 of the Constitution states:
“151. Grant of pardon, etc.
(1) Subject to this Subdivision, the Head of State, 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.
82. Section 152 states:
152. Advisory Committee on the Power of Mercy.
(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.”
83. Sections 151 and 152 reinforce the view that Parliament has assigned the task of early release of prisoners to the Advisory Committee to consider grant of pardon, remission, or commutation of sentence, etc. The respondent is required to apply to the Advisory Committee and make out a case for an early release. A report by the Advisory Committee will be provided to the NEC who shall advise the Head of State to act accordingly.
84. The exercise of power and decision to grant parole, pardon, remission, or commutation of sentence, etc fall within the jurisdiction of the executive arm of government and must be respected by the Court. It is not for the Court to take over so to speak and make that decision. The matters the National Court identified as being relevant to the Court’s exercise of “discretion” and weighed up against each other before it reached its decision are matters that should be appropriately considered by the Parole Board and/or Advisory Committee.
85. To read into Section 57(1) & (3) of the Constitution as conferring power on the National Court to order early release of the respondent, as the National Court did, is in effect to review the decision of the National Court which convicted and sentenced her, an interpretation which, with respect, is undesirable and unnecessary. In expressing this view, it must also be appreciated that what the National Court did was in response to what it found to be an unsatisfactory situation in relation to the respondent’s health, that it was “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” in breach of her rights and freedoms under Sections 36 and 37 of the Constitution.
86. There was good reason for the Court to intervene to fix the social injustice that those responsible failed to fix. However, where there is a need for the respondent to have access to adequate and specialist medical treatment, it is not the function of the Court to play the role of the responsible authorities and release the respondent under the guise of enforcement of basic rights and freedoms of the respondent under Section 57 of the Constitution.The National Court lacked power when it ordered early release of the respondent. This is where the National Court erred. It constitutes an identifiable error.
The State v. Kenneth Kunda Siune Case
87. This view finds support in the recent decision of the Supreme Court in The State v. Kenneth Kunda Siune (supra). It also reinforces the Public Solicitor’s concession. That was an appeal from a decision of the National Court in the Human Rights track which ordered an early release of the applicant on medical grounds. At that time, the applicant was serving a term of imprisonment of 24 years for serious violent crimes of murder, armed robbery, arson and deprivation of liberty.
88. That decision was delivered by the Supreme Court on 4th February 2021. We heard this appeal on 25th May 2021. This was less than four months after that decision was delivered. Kandakasi DCJ, Thompson J and Berrigan J who were members of the Court in that case, delivered separate judgments. Each of their Honours gave separate reasons but ruled in favour of the appellant, upholding the appeal and ordered the prisoner to return to prison to serve the balance of his sentence. As the decision was delivered less than four months prior to the hearing of the present appeal, one may argue that the decision has not stood the test of time and it would be too early to approve it as good law.
89. That said, it is worthwhile to note the views expressed by each of their Honours on this important issue. First, at para. 3 of the head notes of the judgment, their Honours held:
“The power of the Court to make orders under Section 57(3) of the Constitution which are necessary or appropriate to enforce compliance with a person’s guaranteed rights and freedoms, is not an unlimited power, and is one which must be exercised lawfully and in accordance with judicial principles”.
90. At para. 4 of the head notes of the judgment, the Deputy Chief Justice held:
“The powers vested in the Courts by s 57 are in addition to and not in derogation of powers are therefore not superior to and or do not override the powers, functions and process provided for under the Constitution or an Act of Parliament, rules and regulations enacted and operating or functioning under a valid authorisation or empowerment by the Constitution”.
91. Thompson J expressed the lack of power in this way:
“100. I accept the appellant’s submission on this point. The power to make orders which are necessary or appropriate to enforce compliance with human rights, is not an unlimited power, and is one which must be exercised lawfully, and in accordance with judicial principles. The orders in this case involved a review of and variation to a criminal sentence. There is no statutory or other power given to any National Court judge, including a judge hearing a human rights application, to re-visit and change a decision on sentence”. (Emphasis added).
92. Berrigan J shared the same view as their Honours but did not rule out the possibility that Section 57 of the Constitution conferred power on the National Court to enforce rights and freedoms of an applicant where it is necessary or appropriate. At paras. 184 and 185 of the judgment, her Honour said:
“Similarly, the proposition that the National Court sitting in its civil jurisdiction could, by ordering a prisoner’s release, effectively change or alter a lawful and final sentence, whether imposed by the National Court in its criminal jurisdiction, or confirmed following appeal or review of that sentence by the Supreme Court, is on its face an unattractive one, as is the prospect of the court being inundated with collateral attacks seeking to challenge sentences under the guise of obtaining constitutional relief.
For those reasons I was initially of the view that there is no power in the National Court to order the release of a prisoner prior to completion of his sentence pursuant to s57 of the Constitution. Upon further reflection, however, I have come to the view that I am unable to say in absolute terms that there is no such power.”
93. Overall, the Supreme Court decision in The State v. Kenneth Kunda Siune (supra) favoured the philosophy of judicial restraint. It was their Honours decision to decline to uphold the finding by the National Court that judges are conferred wide discretionary power to do justice where it is “necessary or appropriate” and order early release of a prisoner on medical grounds. I endorse the view that care and restraint must be had to reinforce the view that Section 57(1) and (3) of the Constitution is not a source of power by which a judge may draw from to order a prisoner’s early release from prison on medical grounds.
Conclusion and Order
94. In conclusion, there has been an identifiable error made by the National Court. It will be necessary for this Court to correct it. The orders are, the appeal is upheld, the decision of the National Court of 8th May 2017 is quashed and the respondent is ordered to forthwith return to custody at Beon Correctional Institution and serve the balance of her sentence as at the date of her release forthwith. Failing which, she shall be apprehended by members of the Police and Correctional Institution and returned to custody.
95. ANIS J: We heard the substantive appeal on 25 May 2021 and reserved our decision to a date to be advised. This is my ruling.
BACKGROUND
96. The appellants appeal against the final decision of the National Court made on 8 May 2017. The National Court proceeding was commenced by the respondent as a s. 57 (Constitution) application for enforcement of human rights. It was described as HRA No. 264 of 2016 – Catherine Mal v. Commander of Beon CIS & The Independent State of Papua New Guinea (HRA proceeding). The appealed decision is published as an unreported judgment, that is, N6710.
97. The respondent was charged and then convicted of wilful murder. She was sentenced to 17 years imprisonment by the National Court earlier in a separate criminal proceeding. On 14 October 2016, whilst serving her sentence, she filed the HRA proceeding. She alleged protection from inhuman treatment under s. 36 of the Constitution as the right that was breached. I refer to page 14 of the Appeal Book of 17 February 2021 (AB) which consists of a copy of the original Human Rights Application (HRA) or Human Rights Enforcement Application Form 124. Therein, the respondent had laid her complaint where she had alleged breach of s. 36 of the Constitution. In summary, the applicant had alleged, amongst others, that she had been inhumanly treated by the CS guards; that she had been kept away or prevented from receiving her medication given her medical conditions (i.e., diabetic and high blood pressure); that as a result, she had suffered a mild stroke and had had other medical complications. In her HRA, she sought as relief that she be released early from her sentence.
98. The trial Court heard and granted the respondent’s application on 8 May 2017. The Court’s final orders were, and I quote:
“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.”
RESPONDENT CONCEEDING TO THE APPEAL
99. The hearing commenced in the usual manner where the appellants presented their submissions through counsel, and at the conclusion, the respondent responded with submission through counsel.
100. The respondent was represented by Mr Mamu, who is the Public Solicitor. In a rather unusual fashion, counsel began his submissions without indicating at the start that his client will not oppose but would rather concede to the appeal. Counsel read out his entire submission and concluded that the respondent has conceded to the grounds of appeal and the relief sought therein.
101. To me, the appeal has been decided for the appellant given the respondent’s conceding position. I am inclined to grant the relief in the terms as conceded to by the respondent.
OBSERVATIONS
102. But before I summarise, I wish to make some observations.
103. Two main issues arose from this appeal. The first relates to whether s. 5 of the Claims By and Against the State Act (CBASA) is required in a case such as this, that is, where a person intends to commence a human rights application under s. 57 of the Constitution. And the second issue relates to whether a judge of the National Court can exercise his power that is provided under s. 57 of the Constitution to revisit a final order of the National Court and vary, substitute or revoke it with new or fresh orders.
Section 5 Notice
104. In regard to the first issue, the requirement to give s. 5 notice in a human rights application or in an application where one seeks to enforce his or her right or freedom and or to seek damages for infringement of these guaranteed rights and freedom under s. 57 of the Constitution, is mandated by an Act of Parliament, namely, ss. 2 and 5 of the CBASA.
105. In Patrick Move v. Provincial Station Commander (2016) N6396, I summarised these provisions at paragraphs 19 to 21 as follows:
19. Let me begin by considering section 2(2) therein. It states and I read:
(2) The provisions of this Act 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 and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.
20. What this section simply means is that applicants like the applicant herein who intend to commence enforcement proceedings under section 57 of the Constitution must observe the CBASA. To put it simply, proceedings commenced under Order 23 of the National Court Rules are subject to the provisions of the CBASA.
21. Section 5 of the CBASA simply states that and I read in part 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 by the claimant.. In summary, a claimant is required to give six (6) months notice to the State of his or her intention to sue the State. The provision sets out the processes for giving such a notice to the State and I note that I have already set them out above in my judgment.
106. Continuing on at paragraph 22, I referred to this Court’s earlier decision on point namely, Mision Asiki v. Manasupe Zurenoc (2005) SC797 where I said:
“22. The case law is settled on point and I need not refer to them all. The Supreme Court in the case of Mision Asiki v. Manasupe Zurenoc (2005) SC 797 held on point and I read:
We agree with Injia DCJ’s reasoning in Punangi v Brown, adopt it for the purposes of the present case and find that:
· the notice requirements of the Claims By and Against the State Act apply only to actions that are founded on contract or tort or a breach of constitutional rights;”
(Underlining is mine)
107. The Supreme Court in Mision Asiki v. Manasupe Zurenoc (supra) and others such as Paul Tohian v. Tau Liu (1998) SC566, Kokopo Building & Maintenance Ltd v. Department of Police (2005) SC786, Nikint Investment Ltd v. Thomas Niganu (2020) SC1919, and recently, State v. Nimbituo (2020) SC1974, have settled this statutory requirement.
Section 57 - Constitution
108. The trial Judge exercised his powers under s. 57 of the Constitution when he granted the respondent’s HRA and the relief that had been sought.
109. A main challenge by the appellants in this appeal relates or concerns the exercise of power by a trial Judge under s. 57 in relation to grant of relief that effectively means varying or amending a final or completed decision of another National Court. In this case, the respondent had been charged, found guilty, and sentenced to 17 years, for the offence of wilful murder. That was the end of the matter or so the State had thought. However, in the HRA filed on 14 October 2016, the respondent raised human right breaches, and the relief sought in the HRA was an order for early release from prison against her serving sentence. “Can the National Court grant such a relief (i.e., early release) by exercising its powers under s. 57 of the Constitution in a human rights application such as this?”
110. The question was dealt with and answered by this Court in Independent State of Papua New Guinea v. Siune (2021) SC 2070. The State had appealed against a decision of a trial Judge in a human right application that was commenced under Order 23 of the National Court Rules. The trial judge in the National Court granted an order for the early release of the respondent who had been convicted and sentenced to 24 years, for various indictable or serious offences. In upholding the State’s appeal, this Court (Kandakasi DCJ, Thompson J and Berrigan J), and I read in part from what Thompson J stated at paragraphs 115 to 117:
“115. The duty of the court when determining a valid application under s 57 (3), is to consider all the remedies which may be able to be ordered for the purpose of enforcing compliance with the human right which had been breached. The court’s powers of imprisonment and sentencing are not inherent, they arise from and are regulated by various laws. Justice may only be dispensed according to law. There is no law giving a judge the power to reduce a sentence by a serving prisoners’ early release from prison, and it was therefore not a remedy which was able to be ordered for the purpose of enforcing compliance with a human right.
(Underlining mine)
111. It is clarified by this Court’s decision in Siune that the relief, early release, is not something that is available, or which may be sought as a relief, in a human rights application under s. 57 of the Constitution. I concur with the majority’s decision (Kandakasi DCJ and Thompson J) on point in Siune which I believe correctly clarifies the perimeters of the power that is bestowed upon a judge under s.57, that is, when it comes to considering whether a judge of the National Court may exercise powers under s. 57 and grant relief that would essentially have the effect of disturbing or changing a final decision of the National Court in a concluded criminal matter. Section 57 does not permit a judge to make such an order. Secondly, it does not permit or provide as an opportunity or avenue for a prisoner who wishes to seek an early release from prison, by filing a human rights application under Order 23 of the National Court Rules.
112. I would also add the following. Firstly, s. 57 is to be read subject to the express provisions of sub-section (6) which states, The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution. To me, what this also means is that National and Supreme Courts’ powers that are exercised under s. 57 shall be in addition or equal to the same powers that are conferred to the National and Supreme Courts by other provisions of the Constitution including s.155. There are no additional or a higher power that is conferred to Courts that exercise powers under s. 57 of the Constitution.
113. My second comment or remark is this. The Court’s power under s.57 may include the Court’s power to direct CS or those responsible to take measures to ensure that the prisoner concerned receives for example the required meal, medical service or attention, for the prisoner to not be treated inhumanely, for the prisoner be provided with facilities that are within the required standard according to law, that is, in addition to compensation that the Court may also consider to award under s. 58 of the Constitution. See case: Re Applications for early release from custody by John Carl Endekra (2009) N3838.
Summary
114. With these observations and remarks, I will uphold the appeal. Consequently, the respondent must immediately return to and be detained at the Beon Correctional Service to serve the remainder of her prison term.
Summary of Decision and Orders of the Court
115. The decision of the Court on the issues presented are first that requirement for notice of intention to make a claim against the State under s 5 of the CBASA which is a condition precedent for a claim against the State, applies to applications for an enforcement of a human right or freedom under s 57 of the Constitution. As the respondent did not meet that condition precedent, the respondent’s application was not properly before the trial Court. The learned trial Judge therefore erroneously allowed respondent’s claim. Secondly, the learned trial Judge erred in finding for the respondent when the respondent failed to establish by appropriate evidence a breach of any of her rights or a freedom warranting enforcement. Thirdly, the application for early release by the respondent is not a relief that is available, and which may be sought, under s 57 of the Constitution but is a remedy that is specifically vested in other authorities like the Parole Board under the Parole Board Act. The learned trial judge therefore erroneously usurped the powers of such authorities and further erroneously inquired into a matter that was already the subject of consideration in the learned trial judge’s decision on the respondent’s sentence. Finally, the National Court became functus officio upon the pronouncement of sentence in the criminal proceedings against the respondent. The learned trial judge therefore erred in effectively reviewing his own decision on sentence outside any proper appeal or review. The appeal must thus succeed with the orders the subject of this appeal quashed and the respondent required to return to prison to serve the balance of her sentence as at the time of her release.
116. Accordingly, the Court makes the following orders:
___________________________________________________________________
Solicitor General: Lawyers for the Appellants
Public Solicitor: Lawyers for the Respondent
[1]Readers Digest Word Power Dictionary, Reader’s Digest Association Limited, London, 2007.
[2] L.B. Curzon, A Dictionary of Law, Macdonalc & Evans, 1979, Richard Clay (Chaucer Press) Limited.
[3]Per Kandakasi DCJ, Batari, Cannings, David and Hartshorn JJ.
[4] Per Greville Smith, Kapi J and Pratt JJ.
[5]Gavara-Nanu, David & Collier JJ.
[6] For example, Ruth Kaurigova v. Dr Russo Perone &Ors (2008) SC964.
[7]Kandakasi, David and MurrayJJ.
[8]Per Injia CJ, Sakora and Kirriwom JJ (as they then were), Kandakasi J (as I then was) and Davani J (as she then was).
[9]Per Sakora (as he then was), Cannings J and Poole J (as he then was)
[10] Per Kandakasi DCJ, Thompson J (as she then was) and Berrigan J.
[11] Per Sevua and Kandakasi (as we then were) and Manuhu JJ
[12] Per Kandakasi DCJ, Manuhu, Makail, Kariko & Miviri JJ.
[13]Per Kidu CJ, Kapi DCJ and Woods J (as they then were).
[14] Per Amet CJ (as he then was), Gavara–Nanu J, Kandakasi J (as I then was).
[15] Per Kandakasi J (as I then was).
[16]Kandakasi, Lay and Gabi JJ
[17] Per Salika and Kandakasi JJ (as we then were) and Yagi J.
[18] Per Kirriwom, Kandakasi and Kawi JJ (as we then were).
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