SC2709

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 20 & 37 OF 2023

BETWEEN:
PAUL PARAKA
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

WAIGANI: DAVID J, KARIKO J, WOOD J
      25 FEBRUARY, 12 MARCH 2025

PRACTICE AND PROCEDURE – application for enforcement of constitutional rights, s 57 Constitution – competency of – application governed by Order 6, Supreme Court Rules – requirement for application to be in Form 6 – requirements in mandatory terms – whether jurisdiction of the court invoked 

SUPREME COURT –  application for release from custody and grant of bail on medical and humanitarian grounds to enable the applicant to undergo medical treatment overseas  – application that the Commissioner of the Correctional Services and Minister for Justice perform certain functions under the respective Correctional Services Act 1995 and Criminal Code Act 1974 – consideration whether the application invokes the jurisdiction of the Court – consideration whether the applicant has exhausted all administrative remedies

The applicant was convicted by the National Court on five counts of misappropriation and sentenced to 20 years imprisonment at the Bomana Correctional Institution. He appealed to the Supreme Court against both conviction and sentence. His appeal against conviction was dismissed but his appeal against sentence is pending. In the meantime, he was advised by his cardiologist that his coronary illness required urgent medical surgery overseas. He lodged a request to the Correctional Services Commissioner to grant him leave of absence from custody, and he also applied to the Chairman of the Licence Committee and the Minister for Justice to consider him being released from prison on licence, in order to attend to the recommended surgery. After two months of waiting for a reply to his requests, he filed application for enforcement of his constitutional rights, seeking orders that he is released from custody, or released on bail, or that the relevant State authorities decide his requests. 

Held

Per David J & Kariko J:

(1)	Order 6 of the Supreme Court Rules governs the procedure for applications in the Supreme Court for enforcement of constitutional rights under s 57 Constitution and that includes the requirement that the application must be in accordance with Form 6.

(2)	The requirements of Order 6 are in mandatory terms and must be strictly complied with to properly invoke the jurisdiction of the Court; failure to comply renders the application incompetent.

Per Wood J: 

(3)	The statutory provisions and the cases authorities in support of the application do not invoke the jurisdiction of the Court.  

(4)	The application is an abuse of process as the applicant has not exhausted the administrative process by when he may consider seeking judicial review.  

By the Court:

(5)	Application dismissed. 

Cases cited

Amet v Yama (2010) SC1064
Commander of Beon Correctional Institution v Mal (2022] SC2186
Electoral Commission v Pila Niningi (2003) SC710
Enforcement of Basic Rights under Section 57 of the Independent State of Papua New Guinea, In re (2017) N6939
Independent State of Papua New Guinea v Siune (2021) SC2070 
Independent State of Papua New Guinea v Tamate (2021) SC2132
In re Application by John Carl Endekra and 14 Other Prisoners of Lakiemata Correctional Institution (2009) N3838
In re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343
In the Matter of Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea (2021) N3421 
PNG Tropical Wood Products Ltd v Manuel Gramgari (2013) SC1145
State v Jonah (2022) SC2248 
Steven v Madana (2024) SC2639
Telikom PNG Ltd v Kopalye (2021) SC2141
The State v Transferees (2016) SC1488
Tsang v Credit Corporation [1993] PNGLR 112
Yakam & The National v Merriam & Merriam (1997) SC533

Counsel

Paul Paraka, the applicant, in person
H Roalakona & S Mosoro for the respondent

JUDGMENT

1.	DAVID J: I have read the judgments of my brothers Kariko J and Wood J.  I agree with the conclusions reached and the orders proposed by them.  I will add only these brief comments.

2.	The issue that is central to the determination of the Application is whether the Application is properly before the Court in order for the Court to consider whether or not the Applicant is entitled to the relief he seeks.

3.	It is settled law in this jurisdiction that the issue of competency of any proceedings before the Court can be raised at any stage of the proceedings as it concerns the validity of the proceedings: Amet v Yama (2010) SC1064.

4.	It is also settled law in this jurisdiction that non-compliance with mandatory requirements of the Supreme Court Rules 2012 renders an application incompetent and the Court would not have jurisdiction to hear the application:  Independent State of Papua New Guinea v Transferees (2016) SC1488.  

5.	The relief the Applicant seeks really are about enforcement of his constitutional rights under s.57 of the Constitution which he alleges have been breached and has sought the Court’s intervention.   Order 6 of the Supreme Court Rules regulates the practice and procedure for the filing of an application to enforce constitutional rights under s.57 of the Constitution.

6.	Clearly, as canvased by Kariko J in his judgment, the Application is not properly before the Court as it is not in accordance with Form 6 and therefore must be dismissed for being incompetent and for lack of form.  

7.	KARIKO, J: I have had the opportunity of reading the draft judgment of his Honour Wood J and I agree that the Application should be dismissed. In this judgment I set out my own reasoning. 

8.	I adopt the background facts to the Application, its terms, the relief sought, and the evidence filed in support, as set out in his Honour’s judgment. 

THE APPLICATION

9.	I restate the orders sought in [1] of the Application (with emphasis added):

(a)	Pending appeal, pursuant to s 35, 36, 37(1) & 17 and s 57(1), (3), (5) & (6) of the Constitution and s 5(1)(a) & (b) of the Supreme Court Act, the Appellant be released from custody forthwith on medical grounds to receive urgent medical treatment overseas.

(b)	Alternatively, pursuant to s. 35, 36, 37(1) & (17) and s 57(1), (3), (5) & (6) of the Constitution and ss 5(1)(e) & 10(1)(c) of the Supreme Court Act, pending appeal, the Appellant be granted bail on medical and humanitarian grounds.  

(c)	Alternatively, pursuant to s 35, 36, 37(1) & (17) and s 57(1), (3) & (6) of the Constitution that the Commissioner for CIS, Chairman of the Licence Committee and the Minister for Justice perform their statutory duties and make definitive decisions under ss 101(3) and 141 of the CIS Act and s 615 of the Criminal Code Act respectively within 3 days.

10.	The highlighted expressions suggest the Application seeks enforcement of constitutional rights under s 57 of the Constitution. 

11.	The Court sought clarification from the applicant regarding the nature of the Application, and he confirmed that it was a s 57 Constitution application, in which he sought three reliefs which are pleaded in the alternative:

(1)	An order to be released from custody pending his appeal on sentence; or 

(2)	Grant of bail pending his appeal against sentence; or

(3)	Orders to compel the Commissioner for CIS to grant him leave of absence from custody to get medical treatment overseas, and the Chairman of the Licence Committee and the Minister for Justice, to decide on his request for approval to be absent from jail and for release on licence. 

12.	The applicant went further to explain that this enforcement proceeding was premised on alleged breaches by the State (through the CIS Commissioner, the Attorney General and the Chairman of the Licence Committee) of his following constitutional rights:

•	s 35 - right to life,

•	s 36 - freedom from inhuman treatment,

•	s 37(1) - right to full protection of the law,

•	s 37(17) - right to be treated with humanity and with respect for the inherent dignity of mankind.

 JURISDICTION

13.	During his submissions, the Court questioned the applicant as to whether the court’s jurisdiction had been properly invoked to entertain the Application. 

14.	Foremost, it was pointed out to the applicant that Order 6 of the Supreme Court Rules governs the procedure for applications in the Supreme Court for enforcement of constitutional rights, and that includes the requirement that application must be in accordance with Form 6 – General Form of Constitutional Enforcement Application (Constitution, Section 57). 

15.	Although the applicant acknowledged the requirements of Order 6, he referred to several case authorities to contend that application under s 57 of the Constitution may be made in the course of pending proceedings. He justified that since his case was still going through the appeal process, he was entitled to apply in the same proceedings (the appeal) for enforcement of his constitutional or human rights. 

16.	The cases referred to included Commander of Beon Correctional Institution v Mal (2022) SC2186, Enforcement of Basic Rights under Section 57 of the Independent State of Papua New Guinea, In re (2017) N6939, Independent State of Papua New Guinea v Siune (2021) SC2070, Independent State of Papua New Guinea v Tamate (2021) SC2132, In re Application by John Carl Endekra and 14 Other Prisoners of Lakiemata Correctional Institution (2009) N3838, In re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343, In the Matter of Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea (2021) N3421. 

CONSIDERATION

17.	In the exercise of its inherent powers, the Court may in any proceeding before it, question whether its jurisdiction has been validly invoked (Amet v Yama [2010] PNGLR 87). 

18.	The provisions of Order 6 of the Supreme Court Rules are in mandatory terms: 

•	Division 1 of Order 6 deals with commencement of proceedings and states in Rule 1 that if the application is not first made in the National Court, it shall be made to a Judge of the Supreme Court and have an affidavit in support: Rule 2.

•	The form of the application is addressed in Rule 3 which requires the application to be in accordance with Form 6. 

•	Rule 4 obliges the applicant to serve the application and affidavit in support on those whose conduct give rise to the application. 

19.	The applicant did not dispute the requirements of Order 6, and it was noted that the Application adopted Form 11 – General Form Application for Order under Order 7 Rule 48, instead of Form 6. 

20.	His argument, maintaining that the Application was properly before the Court notwithstanding non-compliance with Order 6, is misconceived. The judgments he cited do not stand for the proposition advanced by the applicant. To the contrary, it is noted that in Independent State of Papua New Guinea v Tamate (supra), Kandakasi DCJ, after discussing at length the power vested in the Courts to act on their own initiative or suo moto under s 57(1), concluded at [24]: 

“In my view, the discussion in the foregoing states the correct position at law as to the meaning and application of the provisions of s. 57(1). In short, both the National Court and the Supreme Court have the power to commence proceedings on their own initiative or act in their own initiative within proceedings already filed by a party and is pending before either of the Courts or proceedings commenced by a judge or a court on its own initiative for the protection and enforcement of a human rights…”

(Emphasis added)

21.	This means that during proceedings, the court, not the parties, may initiate s.57 enforcement in those same proceedings. None of the cases referred to by the applicant involve enforcement application under s 57 being filed by parties in pending proceedings. Parties are of course entitled to file such applications as separate actions in the National Court under O23 r7 of the National Court Rules or in the Supreme Court under O6 r1 of the Supreme Court Rules. 

22.	The requirement that the Application had to be in accordance with Form 6 was not a mere technical requirement and goes to the jurisdiction of the Court, and O6 r3 made it mandatory for the Application to comply with Form 6. See Tsang v Credit Corporation [1993] PNGLR 112 and Yakam & The National v Merriam & Merriam (1997) SC533.

23.	This Court has regularly dismissed proceedings and applications as incompetent for failing to comply with the mandatory provisions of the Rules. In considering an application for leave to make a slip rule application in The State v Transferees (2016) SC1488, the Supreme Court stated at [9]: 

“… the requirements under these rule(s) being mandatory, must be strictly complied with. The need to comply with the mandatory requirements of these rules, goes to the jurisdiction of the Court to hear the slip rule application. Thus, if the application does not comply with the requirements of these rules, the non-compliance renders the application incompetent and the Court would have no jurisdiction to hear the application. Very clearly, the slip rule application in this case cannot possibly succeed due to its incompetence and the Court lacks jurisdiction to hear it: Agiru v Kaiabe [2015] PGSC2; SC1412. 
(Emphasis added)

See also State v Jonah (2022) SC2248, Steven v Madana (2024) SC2639. 

24.	I adopt and apply the relevant principles expressed above, and I accordingly find that the Application has not invoked the jurisdiction of the Court, and it is therefore incompetent. 

25.	While it is then not necessary to discuss the other submissions, I briefly comment on the reliefs sought in the Application:

(1)	The courts have no power to order the early release of a convicted offender undergoing a custodial sentence. That power is vested in other authorities including the Advisory Committee on the Power of Mercy under the Organic Law on Advisory Committee on the Power of Mercy, and the Minister for Justice under s 615 of the Criminal Code: Commander of Beon Correctional Institution v Mal (supra), Independent State of Papua New Guinea v Siune (supra).

(2)	Bail is considered pursuant to the Bail Act which was not cited in the Application. To be allowed bail and to travel overseas, the applicant must apply for permission to leave the country at the same as he applies for bail: s 23(4) of the Bail Act. This the applicant did not do.

(3)	The orders sought against Commissioner for CIS, the Attorney General and Chairman of the Licence Committee to compel them act on the applicant’s requests, are in essence orders of mandamus. That relief is normally available in judicial review proceedings under Order 16 of the National Court Rules. Where mandamus is sought in a s 57 enforcement application, the parties against whom the orders are sought must necessarily be named as parties and served so that they may attend and defend themselves, which did not happen here.  

26.	One other point I comment on is the applicant’s submission that given the urgency of his medical condition the Court should exercise its inherent jurisdiction to do justice in the circumstances of his case and in particular order the named State authorities to act upon his requests. The Supreme Court has on many occasions stressed that “justice” is to be interpreted as “justice according to law”: Electoral Commission v Pila Niningi (2003) SC710; PNG Tropical Wood Products Ltd v Manuel Gramgari (2013) SC1145; Telikom PNG Ltd v Kopalye (2021) SC2141.

CONCLUSION

27.	Consequently, I dismiss the Application as incompetent for failing to invoke this Court’s jurisdiction, and I agree with the orders proposed by Wood J.

28.	WOOD J: The matter before the Court on 25 February 2025 was the hearing of the Application filed on 17 February 2025 (the Application) by Mr Paul Paraka (the applicant). While the applicant refers to himself in the Application as the ‘appellant’, I consider it more appropriate that Mr Paraka is referred to as the ‘applicant’ for the purpose of this matter, however, nothing material turns on the issue.

29.	The Application seeks various orders and is numbered from paragraphs 1(a) to 1(h). As a preliminary issue, the applicant was granted leave to withdraw paragraphs 1(c) to 1(h) of the Application, whereby the relief remaining in the Application is as follows:

1(a)	Pending appeal, pursuant to s.35, 36, 37(1) & 17 and s. 57(1), (3), (5) & (6) of the Constitution and s. 5(1)(a) & (b) of the Supreme Court Act, the Appellant be released from custody forthwith on medical grounds to receive urgent medical treatment overseas.

  (b)	Alternatively, pursuant to s. 35, 36, 37(1) & (17) and s. 57(1), (3), (5) & (6) of the Constitution and ss. 5(1)(e) & 10(1)(c) of the Supreme Court Act, pending appeal, the Appellant be granted bail on medical and humanitarian grounds.  

  (c)	Alternatively, pursuant to s. 35, 36, 37(1) & (17) and s. 57(1), (3) & (6) of the Constitution that the Commissioner for CIS, Chairman of the Licence Committee and the Minister for Justice perform their statutory duties and make definitive decisions under ss. 101(3) and 141 of the CIS Act and s. 615 of the Criminal Code Act respectively within 3 days.

30.	In support of the Application, the applicant relies on the following affidavits, namely:

a)	the affidavit of Paul Paraka sworn on 12 February 2025 and filed on 17 February 2025;
b)	the affidavit of James Haro sworn on 13 February 2025 and filed on 17 February 2025; and
c)	the affidavit of Paul Paraka sworn and filed on 18 February 2025.

BACKGROUND FACTS AND SUBMISSIONS BY THE PARTIES

31.	The background to the Application is that the applicant was convicted in National Court CR (FC) No. 118 of 2019 in a decision delivered on 26 May 2023 on five counts of misappropriation of property belonging to The State.  In a decision in National Court proceeding CR (FC) No. 118 of 2019 delivered on 4 October 2023, the applicant was sentenced to 20 years imprisonment on the five charges.  He is currently an inmate at the Correctional Institution at Bomana.  The applicant’s appeal against conviction on the five charges was dismissed by the Supreme Court in SCRA No. 20 of 2023 in a decision delivered on 30 October 2024.  A decision is pending in SCRA No. 37 of 2023 regarding the applicant’s appeal against sentence on the five counts of misappropriation of property belonging to The State.

32.	The basis of the Application is effectively that the applicant has coronary artery disease, which condition the applicant says has deteriorated in more recent times.  The applicant claims that based on medical advice, his doctors have strongly recommended that he seek urgent open heart surgery overseas.  The applicant annexed a number of letters to his affidavit filed on 17 February 2025, including a letter dated 16 December 2024 by Dr W Boko, Intervention Cardiologist at the Port Moresby General Hospital, which states in part, that it is recommended that the applicant be allowed to travel for life-saving surgery and undergo a thorough and medical psychiatric review.

33.	In his affidavit filed on 17 February 2025, the applicant also annexed a letter dated 30 December 2024 from Paul Paraka Lawyers to the Commissioner of the Correctional Institute Services at Bomana, in which he requests that he be given a leave of absence in accordance with section 101(3) of the Correctional Service Act 1995 (the letter to CIS).

34.	In his affidavit filed on 17 February 2025, the applicant also annexed a letter dated 17 January 2025 from Paul Paraka Lawyers to Dr Eric Kwa, in his capacity as the Secretary for Justice and Chairman of the Release on Licence Committee (the January letter to the Secretary for Justice).  In that letter, the applicant requested that he be granted a licence by the Minister for Justice, pursuant to section 615 of the Criminal Code Act, to enable him to travel to Singapore for heart by-pass surgery    

35.	During the presentation of the applicant’s submissions, the Court raised a number of issues, including whether in relation to paragraph 1(c) of the Application as to whether the applicant had exhausted the process in seeking the issuance of an instrument or authority to authorise him to be absent from the prison at Bomana from the Commissioner of the Correctional Service
(the Commissioner), pursuant to section 101(3) of the Correctional Service Act.  Also in relation to paragraph 1(c) of Application, the Court asked the applicant whether he had exhausted the process in requesting the Minister for Justice (the Minister) to issue a licence for the purpose of seeking medical treatment, in accordance with section 615 of the Criminal Code Act.  In reply to both questions, the applicant said he had not received a reply to either the letter to CIS or the letter to the Secretary for Justice.  In this regard, the applicant conceded that because he had not received any reply, his remedy may be to apply for judicial review regarding what he considered was to be a failure of the Commissioner and Minister to provide a reply.

36.	In relation to the above issue, the applicant also conceded that any application by him based on humanitarian grounds would need to include the Commissioner and Attorney General as parties.
   
37.	 During the applicant’s submissions, the Court also expressed some preliminary doubt about whether the applicant had invoked the jurisdiction of the Court to consider the Application.  This was also in the context that the applicant has filed the Application in Supreme Court appeals SCRA No. 20 and 37 of 2023, which are the above-mentioned appeals against his conviction and sentence.    Moreso, in the Application, the applicant had not sought to join the relevant State parties, such as the Commissioner or the Minister.

38.	 In reply, the applicant submitted that those sections under the Constitution and the Supreme Court Act which are referred to in the Application correctly invoke the jurisdiction of the Court.  The applicant also referred to a number of cases, which are detailed on page 2 of the January letter to the Secretary for Justice.  In this regard, however, I note that the applicant did not provide a copy of those cases to the Court.  As the applicant is an inmate at the prison at Bomana and may have had difficulties in obtaining copies of those cases or providing their correct citations, in fairness to both parties in this matter, I have listed below the full citations of those cases as follows: Commander of Beon Correctional Institution v Mal (2022) SC2186, Enforcement of Basic Rights under Section 57 of the Independent State of Papua New Guinea, In re (2017) N6939, Independent State of Papua New Guinea v Siune (2021) SC2070, Independent State of Papua New Guinea v Tamate (2021) SC2132, In re Application by John Carl Endekra and 14 Other Prisoners of Lakiemata Correctional Institution (2009) N3838, In re Bail Act Chapter 340, Application by Paul Tiensten (2014) SC1343, In the Matter of Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea (2021) N3421. 

39.	 Although the applicant referred to the above cases, he did not refer to any specific parts of the cases in support of his case, other than to make a general submission that the cases demonstrate how both the National Court and Supreme Court have made decisions to grant certain human rights applications, similar to the relief that he is now seeking.  The applicant also submitted that the above cases are authority for his argument that the sections he cited in his Application under the Constitution and the Supreme Court Act give the Court the jurisdiction to consider the Application.  

40.	 The Court then heard submissions by Ms Roalakona for the State.  The State opposes the Application on three grounds. The first ground is that the applicant had not complied with Order 13, Rule 15 of the Supreme Court Rules because the Application does not invoke the jurisdiction of the Court to grant the relief sought.  The second ground by the State is that the Application amounts to an abuse of process because the applicant has not exhausted all relevant administrative remedies, given his recent (above mentioned) letters to the Commissioner and Minister, to which he has not received a reply.  The third ground by the State is that the applicant has made two previous bail applications relating to the same health conditions, as well as an oral application for bail made before His Honour Justice Cannings on 21 February 2025 in SCRA No. 20 & 37 of 2023.  All three applications have been refused.   

ANALYSIS OF THE ISSUES

41.	 Noting the applicant’s reliance on those cases referred to in paragraph 38 above, it was necessary for the Court to give careful consideration of the issues arising in the cases.  In this regard, I have extracted below part of the summary of facts from pages 2 and 3 of the Supreme Court decision (per Kandakasi DCJ, Makail J and Anis J) in Commander of Beon Correctional Institution v Mal [2022] SC2186, where it was stated as follows:

“ 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.”

42.	At paragraphs 1 to 12 of the decision in Commander of Beon Correctional Institution v Mal (supra), it was stated as follows:

‘Held: 
1.      (Per Kandakasi DCJ) Giving a fair, liberal, wider, and purposive interpretation to the word “claim” as used in s 5 of the CBASA and reading that provision together with the provisions of s 2(2) of the same Act, the requirements for notice under s 5 applies to applications for the enforcement of a constitutional right or a freedom as well as those seeking damages for breach of such a right or freedom. The respondent was required to give notice of her intention to make her claim against the State.  The learned trial judge erred in holding to the contrary: adopted and applied The State v Nimbituo (2020) SC1974 and the minority decision in The State v Downer Construction (PNG) Ltd (2009) SC979.

2.     Section 57 of the Constitution does not grant the National Court or a Judge any broader and wider power which overrides, diminishes, or otherwise derogates from the powers and functions of other authorities and process and procedures established a constitutional law or any Act of Parliament or any other law.   On a plain reading of the provisions of s 57, the power to order an early release of a prisoner serving a sentence on grounds of a breach of a constitutional right or freedom is not vested in any court.  That power is vested in the Parole Board under the Parole Act 1991and other authorities like the Advisory Committee on the Power of Mercy under the Organic Law on Advisory Committee on the Power of Mercy, the Criminal Code, and other Acts of Parliament.  In the present case, the National Court erred in usurping the powers of the Parole Board and other authorities when it ordered an early release of the respondent: followed The State v Kenneth Kunda Suine (2021)SC2070.
 
3.     Upon the pronouncement of a sentence in a criminal case, the National Court becomes functus officio and as such it has no power under s 57 of the Constitution to effectively revisit, review and reduce the sentence in the guise of enforcing a human right or freedom. That power is vested in the Supreme Court on a proper appeal or review against the decision on sentence: adopted and applied Daniel Ronald Walus v The State (2007) SC882; The State v Tamate &Ors (2021) SC2132 and The State v Siune (supra).
 
4.      (Per Makail J) The view expressed by the National Court and that of the parties are demonstrative of the different interpretations given to Section 57 of the Constitution.  Each view carries with it a wider implication.  The order sought to be impugned represents a tussle between two conceptions confronting the Judiciaries globally today. These are judicial activism and judicial restraint.  These are legal concepts which described how judges interpret and apply the written law. (Obiter dictum).
 
5.     (Per Kandakasi DCJ) There are adequate provisions under the Correction Service Act 1995 which address the health and medical and other needs of a detainee which must be first exhausted before any application under s. 57 of the Constitution can be filed and any such application can only be by way of judicial review of the decision or indecisions of the relevant jail commander or the Commissioner of Correction Service: followed The State v Kenneth Kunda Suine (supra).
 
6.   	(Per Makail J) 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.
 
7.   	(Per Kandakasi DCJ) An applicant in an application for an enforcement of a human right must establish by appropriate evidence his or her allegation of a breach of his or her constitutional right or freedom but not inferentially from the fact of a detainee serving his or her sentence under a lawfully imposed sentence.
 
8.   	(Per Makail J) The National Court erred in law in ordering early release of the respondent on grounds of breach of rights and freedoms under Sections 36, 37 and 57 of the Constitution as it lacked power.
 
9.   	(Per Kandakasi DCJ and Anis J) Given the law and facts, learned counsel for the respondent correctly discharged his duty to his client and the Court by correctly conceding to the grounds of appeal and the relief sought based on which the appeal was upheld, and the reliefs sought were granted.
 
10.  	(Per Anis J) A relief for early release is not available or which may be sought as a relief, in a human rights application under Section 57 of the Constitution.  The majority decision by Kandakasi DCJ and Thompson J in The State v Kenneth Kunda Siune (2021) SC2070 approved.
 
11.  	(Per Anis J) Section 57 of the Constitution does not permit a judge to make an order for early release of a prisoner serving a sentence.  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.
 
12.  	Accordingly, the appeal was upheld, the decision of the National Court was quashed, and the respondent was ordered to forthwith return to custody and serve the balance of her sentence as at the date of her release.  Failing which, she was ordered to be apprehended by members of the Police and Correctional Institution and returned to custody.’
 
43.	In the circumstances, the above principles set out in Commander of Beon Correctional Institution v Mal (supra) confirm my view that the Application does not invoke the jurisdiction of the Court to grant the relief being sought.  In this regard, none of the cases cited by the applicant are authority for his argument that the sections he cited in his Application under the Constitution and the Supreme Court Act give the Court jurisdiction to consider the Application.  Furthermore, none of the above Supreme Court cases support his submissions that either the National Court and Supreme Court have made decisions to grant certain human rights applications, similar to the relief that he is now seeking.  For these reasons, I uphold the first ground of objection by the State that the Application does not invoke the jurisdiction of the Court to grant the relief sought.  Accordingly, I consider the Application should be dismissed on that basis.

44.	Notwithstanding my above reasoning, I consider it appropriate to look at the second ground of objection by the State, which is that the Application amounts to an abuse of process because the applicant has not exhausted all relevant administrative remedies, given his recent letters to the Commissioner and Minister, to which he has not received a reply.  In his oral submissions, the applicant informed the Court that he has not received any reply to either the letter to CIS or the letter to the Secretary for Justice.  On this point, I note the comments at page 1 of the decision in Kekedo v Burns Philp (PNG) Ltd [1988] PGSC 19; [1988-89] PNGLR 122 (per Kapi DCJ, Amet J and Cory J), where the Court stated as follows: 

‘That although the judicial review jurisdiction of the National Court exists and may be invoked where an alternative statutory administrative remedy is available, as a general rule, applications for judicial review should not be granted, save in the most exceptional circumstances, until the alternative statutory procedures have been exhausted.’

45.	 Based on the circumstances of the current Application, whereby the applicant’s letters to the Commissioner and the Minister were sent only relatively recently, I am not satisfied that he has exhausted the administrative process.  In any event, even if the applicant had exhausted the administrative process (which I consider at this point has not occurred), it would be incumbent upon him to consider whether there was a basis to seek certain relief in a judicial review proceeding.  In this regard, I consider it relevant to repeat the above reasoning of His Honour Deputy Chief Justice Kandakasi in Commander of Beon Correctional Institution v Mal (supra), where he stated:

‘Section 57 of the Constitution does not grant the National Court or a Judge any broader and wider power which overrides, diminishes, or otherwise derogates from the powers and functions of other authorities and process and procedures established a constitutional law or any Act of Parliament or any other law.   On a plain reading of the provisions of s 57, the power to order an early release of a prisoner serving a sentence on grounds of a breach of a constitutional right or freedom is not vested in any court.  That power is vested in the Parole Board under the Parole Act 1991and other authorities like the Advisory Committee on the Power of Mercy under the Organic Law on Advisory Committee on the Power of Mercy, the Criminal Code, and other Acts of Parliament.  In the present case, the National Court erred in usurping the powers of the Parole Board and other authorities when it ordered an early release of the respondent: followed The State v Kenneth Kunda Suine (2021) SC2070.’

46.	Based on the above-mentioned reasons, I would also dismiss the Application for failing to exhaust the administrative process.

47.	Noting that I consider it appropriate to dismiss the Application on the first two grounds, I do not consider it necessary to consider the third ground raised by the State.

CONCLUSION 

48.	 On the basis of my above reasoning, I consider the Application should be dismissed and the following orders made.

1.	The Application filed on 17 February 2025 is dismissed.

2.	The terms of these Orders are abridged, to the date of settlement by the Court.

49.       BY THE COURT: The order of the Court is:

(1)	The Application filed on 17 February 2025 is dismissed.

(2)	The terms of these Orders are abridged, to the date of settlement by the Court.
.  

Mr Paul Paraka (the applicant), in person 
Lawyer for the respondent: The Public Prosecutor