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SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 (2 November 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 314 - SCR No 1 of 1984; Re Minimum Penalties Legislation 

[1984] PNGLR 314

SC280

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SPECIAL CONSTITUTIONAL REFERENCE NO. 1 OF 1984

IN THE MATTER OF A REFERENCE PURSUANT TO S 19 OF THE CONSTITUTION BY THE PROVINCIAL EXECUTIVE OF THE MOROBE PROVINCIAL GOVERNMENT

Waigani

Kidu CJ Kapi DCJ Bredmeyer Kaputin McDermott JJ

25 April 1984

3 August 1984

17 August 1984

2 November 1984

CONSTITUTIONAL LAW - Basic rights - Criminal legislation - Minimum penalties provisions - Validity Constitution, ss 36(1), 41, 57 - Criminal Code (Minimum Penalties) (Amendment) Act 1983 - Summary Offences (Amendment) Act 1983 - Criminal Code (Amendment) Act 1983.

CRIMINAL LAW - Sentencing - Minimum penalties - Validity of legislation - Constitution, ss 36(l), 41, 57 - Criminal Code (Minimum Penalties) (Amendment) Act 1983 - Summary Offences (Amendment) Act 1983 - Criminal Code (Amendment) Act 1983.

In 1983 three acts were passed, the Criminal Code (Minimum Penalties) (Amendment) Act (No. 10 of 1983), the Summary Offences (Amendment) Act (No. 17 of 1983) and the Criminal Code (Amendment) Act (No. 29 of 1983) by which the courts were compelled to impose minimum custodial sentences for certain offences.

Section 36(1) of the Constitution provides:

“No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.”

Section 41(1) of the Constitution provides:

“Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      is harsh or oppressive, or

(b)      is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case, or

(c)      is otherwise not, in the particular circumstances reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.”

Held

(1)      (McDermott J dissenting.) The provisions of the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No. 10 of 1983), the Summary Offences (Amendment) Act 1983 (No. 17 of 1983) and the Criminal Code (Amendment Act (No. 29 of 1983) in so far as the said provisions compel the court to impose a minimum custodial sentence for an offence do not offend the provisions of s. 36(1) of the Constitution and are therefore valid.

(Per Kidu CJ and Kapi Dep CJ) The intention of s. 36(1) of the Constitution is to prohibit cruel, degrading and inhuman treatment which features pain and suffering caused to the human person either physically or mentally: it is not intended to probibit custodial sentences.

(Per Bredmeyer and Kaputin JJ) The excessiveness or the nature of a mandatory penalty may infringe s. 36(1) of the Constitution but not the fact that it is mandatory.

(2)      (Kaputin J dissenting.) In cases where the provisions of the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No. 10 of 1983), the Summary Offences (Amendment) Act 1983 (No. 17 of 1983) and the Criminal Code (Amendment) Act (No. 29 of 1983) apply, the provisions of s. 41 and s. 57 of the Constitution do not permit the Supreme Court, the National Court or any other tribunal to impose a lesser punishment than the minimum so provided.

(Per Kidu CJ) The provisions of s. 41 of the Constitution apply to all actions taken under any valid law subject to the limitation that it is not available in cases of non-discretionary acts.

(Per Kapi Dep CJ and Kaputin J) The provisions of s. 41 of the Constitution apply to all acts done under any valid law including constitutional laws and may apply to the non-discretionary judicial act of imposing a minimum penalty to the extent that such an act may in a particular case be declared invalid or unlawful by the Supreme Court.

(Per Bredmeyer J) The provisions of s. 41 of the Constitution apply only to a law which validly restricts a basic right given in Divn 3 of Pt III of the Constitution and which is a “right” which may be enforced under s. 57 of the Constitution.

(Per McDermott J) The provisions of s. 41 of the Constitution apply to discretionary acts affecting constitutional rights which can be qualified.

Cases Cited

Acting Public Prosecutor v. Nitak Mangilonde Taganis [1982] P.N.G.L.R. 299.

Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.

Agiru Aiena v. Tahain [1978] P.N.G.L.R. 37.

Bethea v. Crouse [1969] USCA10 223; 417 F 2d 504 (1969).

Desai v. Republic [1971] EA 416.

Furman v. Georgia [1972] USSC 170; 408 US 238 (1972).

Hart v. Coiner [1973] USCA4 533; 483 F 2d 136 (1973).

Heni Pauta and Kenneth Susuve, Re [1982] P.N.G.L.R. 7.

Hobbs v. State 32 N.E. 101933 Ind 404 (1983).

Imprisoned Citizens Union v. Shapp 451 F Supp. 893 (1978).

Ingraham v. Wright [1977] USSC 56; 430 US 651 (1977).

Inland Revenue Commissioners v. Hinchy [1960] A.C. 748.

Jackson v. Bishop [1968] USCA8 253; 404 F 2d 571 (1968).

Kibirgen v. Republic [1975] EA 250.

Kimanzia v. Republic [1972] EA 495.

Kondan Kale v. The State (Unreported Supreme Court judgment No. SC250 dated 8 June 1983).

McDonald v. Commonwealth 53 NE 874; 173 Madd 322 (1899).

Minister for Home Affairs v. Fisher [1979] UKPC 21; [1980] A.C. 319.

Muiruri v. Republic [1973] EA 86.

Mwakapesile v. Republic [1965] EA 407.

Njuguna v. Republic [1972] EA 494.

O’Neill v. Vermont [1892] USSC 112; 144 US 323 (1892).

Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648.

Passingan v. Beaton [1971-1972] P.&N.G.L.R. 206.

Premdas v. Independent State of Papua New Guinea [1979] P.N.G.L.R. 329.

R. v. Kocan [1966] 2 N.S.W.R. 565.

R. v. McGrath [1971-1972] P.&N.G.L.R. 247.

Republic of Ireland v. United Kingdom [1978] ECHR 1; (1978) 2 EHRR 25.

Riley v. A.G. of Jamaica [1983] 1 A.C. 719, [1982]3 All E.R. 469.

Robinson v. California [1962] USSC 130; 370 US 660 (1962).

S.C.R. No. 2 of 1981; Re s. 19 of the Criminal Code [1982] P.N.G.L.R. 150.

Secretary for Law v. Kaibug Jimbun & Anor [1976] P.N.G.L.R. 288.

Stevens v. Warden, Maryland Penitentiary [1967] USCA4 478; 382 F 2d 429 (1967).

The People v. Broadie 332 NE 2d 338 (1975).

Tom Amaiu v. The Commissioner of Corrective Institutions [1983] P.N.G.L.R. 87.

Trop v. Dulles [1958] USSC 57; 356 US 86 (1958).

Tyler v. United Kingdom [1978] ECHR 2; (1978) 2 EHRR 1.

Ulao Amentasi v. Secretary for Law [1975] P.N.G.L.R. 134.

United States v. Dawson [1969] USCA2 38; 400 F 2d 194 (1968).

Ure Hane v. The State [1984] P.N.G.L.R. 105.

Weems v. United States [1910] USSC 127; 217 US 349 (1910).

Wilkerson v. Utah [1878] USSC 201; 99 US 130 (1878).

Willoughby v. Phend 301 FV Supp 644 (1969).

Yamore Memera & Ors v. Matthew Bisang [1976] P.N.G.L.R. 419.

Special Constitutional Reference

This was a Special Constitutional Reference by the Morobe Provincial Executive pursuant to s. 19 of the Constitution of two questions:

Question 1:    “Are the provisions of the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No. 10 of 1983), the Summary Offences (Amendment) Act 1983 (No. 17 of 1983) and the Criminal Code (Amendment) Act (No. 29 of 1983) insofar as the said provisions compel the Court to impose a minimum custodial sentence for an offence unconstitutional in as much as they offend the provisions of s. 32(1), s. 36(1) and s. 37(3) of the Constitution?”

Question 2:    “If the minimum penalty legislation is valid under s. 36(1) of the Constitution, can the National Court, Supreme Court or any other prescribed tribunal in individual cases give a lesser punishment under s. 41 and s. 57 of the Constitution?”

Counsel

J. Griffin and T. Doherty, for the Morobe Provincial Government.

S. Kaipu, for the Principal Legal Adviser.

J. Byrne, (by leave) for the Public Prosecutor.

Cur. adv. vult.

2 November 1984

KIDU CJ: This is a Special Constitutional Reference by the Morobe Provincial Executive pursuant to s. 19 of the Constitution. The Court is asked to give its opinion on two questions. The first of these is as follows:

“Are the provisions of the Criminal Code (Minimum Penalties) (Amendment) Act 1983 (No. 10 of 1983), the Summary Offences (Amendment) Act 1983 (No. 17 of 1983) and the Criminal Code (Amendment) Act (No. 29 of 1983) insofar as the said provisions compel the Court to impose a minimum custodial sentence for an offence unconstitutional in as much as they offend the provisions of s. 32(1), s. 36(1) and s. 37(3) of the Constitution?”

Submissions by counsel did not advert to s. 32(1) and s. 37(3) and consequently no reference will be made by me to those provisions. Counsel for the Morobe Provincial Executive based his submissions on decisions of the Supreme Court and Federal and State Courts of the United States. In a nutshell his submission was that as s. 36(1) of the Constitution of The Independent State of Papua New Guinea was similar to the Eighth Amendment to the Constitution of the United States it should be given the meaning attributed to the latter provisions by United States Courts and various cases were cited in support.

These provisions read as follows:

(a)      Section 36(1) of the Constitution of The Independent State of Papua New Guinea

“No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.”

(b)      Eighth Amendment to the U.S.A. Constitution

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

Section 36(1) is similar to the Eighth Amendment but it differs considerably in its language from it. Section 36(1) does not contain any references to excessive bail or fine; it talks about treatment and punishment whereas the Eighth Amendment only talks of punishment; whilst s. 36(1) prohibits treatment or punishment that is cruel or otherwise inhuman, the Eighth Amendment prohibits punishment which is cruel and unusual. In view of such obvious differences decisions of the American Courts on the meaning of the Eighth Amendment should be approached with caution and not readily accepted as guides to the interpretation of s. 36(1) of the Papua New Guinea Constitution.

Counsel for the affirmative, (Mr Griffin) did not bother to consider whether s. 36(1) was meant to be read as it is worded. He was not interested, it seemed to me, when he was asked during submissions. Also when what the Constitution of Planning Committee (the C.P.C.) Report says was pointed out to him, counsel merely brushed it aside. The C.P.C. Report states:

“We recommend that the section in the Ordinance [i.e. Human Rights Ordinance] which prohibits torture, and treatment or punishment that is cruel, inhuman or degrading, be incorporated in this chapter of the Constitution. Some of our people are well aware of instances of torture and other inhuman treatment which have been meted out by successful colonial administrations, and in traditional society also. We firmly believe that these practices should be specifically outlawed in the Constitution.” (C.P.C. Report Ch. 5, 5/1/9, par. 44)

Section 13 of the repealed Human Rights Ordinance 1971 provides as follows:

“No person shall be subjected to torture or to treatment or punishment that is inhuman or degrading.”

The actual recommendation made by the C.P.C. appears at 5/l/23 of their report.

“Protection from inhuman treatment

No person shall be subjected to torture or to treatment or punishment that is cruel, inhuman or degrading.”

When this recommendation was debated upon by the Constituent Assembly on 26 June 1975, it was worded as follows:

“No one shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel, degrading or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.”

The word “degrading” was omitted. Mr Ebia Olewale (Member for South Fly) made the following motion:

“I move:

That the following amendment be made:

Page 24, subclause (1) omit ‘degrading’. The word does not add anything to ‘torture’ or ‘cruelty’. Degrading treatment amounts to the same thing as ‘cruelty’.”

The only other speaker was Mr Tom Koraea (Member for Gulf) who stated, inter alia, the following:

“Mr Chairman, as for the clause relating to freedom from inhumane treatment, I believe the opposite is already being practised. They have practised it all the time, but nobody is taking or has taken any action on this. This sort of practice is common on plantations, Mr Chairman, where labourers are not treated properly by the plantation managers. Mr Chairman there are many colonial plantations in this country which are looked after by colonial masters.

Mr Chairman, we still have a plantation owned by a European in Kerema. So all I am saying is that, Mr Chairman, all these plantation workers are not treated properly by these plantation managers. An incident which I saw involved a man from the Highlands, but I as a representative represent every person in this country, not only Highlanders or people of Gulf. What happened was that this man was beaten, then rubber latex was poured onto his head and he was covered with all the latex. Mr Chairman, I believe that we should practise the law properly and treat our men properly. Whoever breaks the laws of this country should be accordingly taken to the court. Mr Chairman, this European was not taken to court because the magistrate was too lenient. This is true, because I was the one who did the prosecution to take this man to court. When he was taken to court, the court fined him K10 only which is very very bad. He was treated very lightly. He should not have paid that K10 only. Mr Chairman, I think there are inhumane practices in this country which are worse than those in Britain and other countries and I have seen this myself. Mr Chairman, I think the minister responsible should take steps to stop these practices.”

Mr McKenzie Daugi (Member for Northern) then moved that the amendment to cl. 32 (now s. 36 of the Constitution) be agreed to and it was so decided. The record reads: “Amendment agreed to. Clause, as amended agreed to.” It is, in my view, free from doubt that s. 36(1) was meant to prohibit cruel, degrading and inhumane punishment and treatment and nothing else. Minimum penalties were far from the minds of those who constituted the Constituent Assembly when s. 36(1) was sanctioned and the Constitutional Planning Committee (C.P.C.) did not, quite clearly from its recommendation, have them in mind either.

It is, of course, difficult and not desirable to define the exact meaning of “cruel punishment or treatment” or “inhumane punishment or treatment” or “punishment or treatment inconsistent with respect for the inherent dignity of the human person”. The reason is that some treatments or punishments are by their very nature or by law “cruel” or “inhumane” or “inconsistent with respect for the inherent dignity of the human person” whilst others are not so. For instance, a law which provides that a person convicted of stealing shall have his or her left hand cut off would quite clearly be providing for punishment which is cruel and inhumane. A law which says that a woman found guilty of adultery shall be paraded through the streets naked would quite clearly be inconsistent with respect for the inherent dignity of the human person.

There is no doubt that a lot of people would look on capital punishment as cruel or inhuman. But the Constitution of Papua New Guinea does not say so. In fact s. 36(2) thereof says:

“The killing of a person in circumstances in which s. 35(1) (a) (right to life) applies does not, of itself, contravene Subsection (1); although the manner or the circumstances of the killing may contravene it.”

Custodial sentences or fines per se do not contravene s. 36(1) whether or not such sentences are maximums, minimums or left to the absolute discretion of the courts.

The power to make criminal laws for this country is vested in the National Parliament and not the Judiciary. Also the power to prescribe penalties for breaches of these laws is vested in the National Parliament. Certain provisions in the Constitution put this beyond any doubt:

(1)      Section 109 — General power of law-making

“(1)    Subject to this Constitution, the Parliament may make laws, having effect within and outside the country, for the peace, order and good government of Papua New Guinea and the welfare of the People.

(2)      In particular, Acts of the Parliament, not inconsistent with the Constitutional Laws, may provide for all matters that are necessary or convenient to be prescribed for carrying out and giving effect to this Constitution.

(3)      No law made by the Parliament is open to challenge in any court on the ground that:

(a)      it is not for the peace, order or good government of Papua New Guinea or the welfare of the People; or

(b)      it purports to have extra-territorial effect.

(4)      Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra- territory.”

(2)      Section 37(2):

“(2)    Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.”

The latter provision, apart from protecting people from being convicted of offences that do not exist under statutory law, indirectly says that only Parliament may by statute define offences and prescribe penalties thereof.

I would answer the first question in the negative.

Question 2

The second question is as follows:

“If the minimum penalty legislation is valid under s. 36(1) of the Constitution, can the National Court, Supreme Court or any other prescribed tribunal in individual cases give a lesser punishment under s. 41 and s. 57 of the Constitution?”

The question, during submissions, was dealt with under two heads. The first was whether s. 41 was available in cases of judicial acts. I will deal with this first. Section 41 provides as follows:

“41.    Proscribed Acts:

(1)      Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      harsh or oppressive, or

(b)      is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case, or

(c)      is otherwise not, in the particular circumstances reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)      The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)      Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.” (Emphasis added.)

The answer to the question depends on what meaning is given to the word “act”. Does it include administrative, executive, ministerial acts as well as judicial acts? The imposition and pronouncement of sentences and the issuing of warrants of commitment are judicial acts. They involve the exercise of the judicial power of the people vested in the judicial system by s. 158(1) of the Constitution.

The only reported case in which the application of s. 41 was previously considered by the Supreme Court is Premdas v. Independent State of Papua New Guinea [1979] P.N.G.L.R. 329, where the National Court referred certain constitutional questions to the Supreme Court. One of these questions (Question 3) was:

“In the circumstances of this case were the revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation of the Committee of Review unlawful acts within the meaning of s. 41 (proscribed acts) of the Constitution?”

There is no question that s. 41 was available as the “act” involved was an executive action of revocation of an entry permit and a deportation order. The court considered the question on that basis. But I am of the view that Premdas is of limited assistance in the consideration of the first part of question 2. Prentice C.J. did say in his judgment (at 344):

“I consider that, giving s. 41 a fair and liberal meaning as the Court is instructed to do so by Sched. 1.5(2) of the Constitution, it should be regarded as of general application.”

But his Honour said this in reply to the submission that s. 41 was restricted to the protection of qualified rights and not applicable to the protection of fundamental rights. Raine Dep. C.J. merely agreed with Prentice C.J. and Andrew J. The latter said as follows (at 399):

“... However, the section is in wide terms and does not restrict itself to qualified rights. It may be that it applies also to fundamental rights but I find it is not necessary to decide that question here.”

Saldanha J. (with whom Wilson J. agreed) said that the Minister’s act was not harsh and oppressive as he had acted within the scope of his responsibility for the good government of the country.

So the question we have before us has to be determined without any precedent. Although what Prentice C.J. said was in answer to a submission not relevant here I consider that it is of relevance in deciding whether or not the word “act” in s. 41 includes a judicial act. The provisions of the Constitution cited by his Honour are directives as to constitutional interpretation and it is wrong to ignore them. If fair and liberal meaning is given to the word “act” there is no question that the meaning includes judicial acts. Section 41 says “any act”. The use of the adjective “any” with the noun “act” supports the view that the operation of s. 41 cannot be confined to non-judicial acts only. The Constitutional Planning Committee recommended in its Final Report (the C.P.C. Report) at 5/1/33 as follows:

“Notwithstanding the validity under the provisions of the chapter of a law under which any person is arrested, detained, questioned or searched, action taken under that law for any of these purposes shall be unlawful insofar as the force used or the conduct of the persons taking the action is excessive or oppressive in the actual circumstances of the case.”

There is no doubt that the Constitutional Planning Committee intended what is now s. 41 to apply to the degree of force or conduct of persons arresting, detaining or searching others under valid laws made under the Human Rights provisions of the proposed Constitution. But this restrictive recommendation was not accepted by the Constituent Assembly as can be clearly seen by the very wide terms of s. 41. The “act” in question in relation to sentencing of offenders would be the imposition of a particular penalty and s. 41 applies only after this act is performed by the relevant court. This is made crystal clear by the provision — “... any act that is done under a valid law”. The suggestion that the court imposing the relevant minimum sentence can itself apply s. 41 is not supported by the very words of the section. As l see it, therefore, if a court imposes a sentence the challenge to the sentence under s. 41 must be brought to the court next in seniority. A magistrate’s act of imposing a penalty must be challenged in the National Court and that of a judge in the Supreme Court.

Wide as its application might be there is a difficulty in its application in cases of minimum penalties. Minimum penalties are directed by statutory law. A judge has no discretion but to impose them. Sections 19(8), 601(15) and 602(3) of the Criminal Code (Ch. No. 262) now provide as follows:

s19(8) “Where a minimum penalty is prescribed for an offence, nothing in this section authorizes a court to impose any penalty other than that minimum penalty on a person convicted of that offence.”

s601(15)       “Where a minimum penalty is prescribed for an offence, nothing in this section authorizes a court to impose any penalty other than that minimum penalty on a person convicted of that offence or to suspend the execution or the sentence or any part of it.”

s602(8)         “Where a minimum penalty is prescribed for an offence relating to property, nothing in this section authorizes a court to discharge a person convicted of that offence or to impose any penalty other than that minimum penalty.”

In cases of minimum penalties, therefore, where courts cannot do otherwise but impose them, can it be said that s. 41 of the Constitution should apply? How can it be said that the action of a judge (or a magistrate) is “harsh or oppressive”, “is not warranted by, or is disproportionate to, the requirements of the particular circumstances or the particular case” etc., if there is no discretion to impose any other punishment less than the minimum sentence? It seems that if s. 41 is used to challenge a minimum penalty it amounts to a backdoor challenge to the legislation rather than the action taken under it and such a challenge is prohibited by the very words of s. 41 itself — “any act done under a valid law”. Section 41 applies on the basis that the legislation under which the challenged act was done or taken is valid. So a challenge indirectly to impugn the relevant legislation cannot be sustained.

From what I have said above it goes without elaboration that s. 41 is not available in cases where the legislation gives no discretionary power to the person or authority directed to do or desist from doing something.

In Premdas Prentice C.J. said that s. 41 was not restricted to the support of rights”. The Constitutional Planning Committee intended that s. 41 be only applicable to certain actions under laws valid under the chapter or part in the Constitution relating to rights and freedoms:

“Notwithstanding the validity under the provisions of the chapter of a law ...” (C.P.C. Report, 5/1/33). (Emphasis added.)

It is unfortunate that this intention does not appear in s. 41 itself. In fact s. 41 says:

“Notwithstanding anything to the contrary in any other provisions of any law ...”

and not:

“Notwithstanding anything to the contrary in any other provision of any law valid under this Division (i.e. Basic Rights) ...”

I do not consider that the fact that s. 41 is in Divn 3 Pt III of the Constitution means that it was meant to be applicable to laws valid under that particular part of the Constitution. It is a persuasive argument that the Constituent Assembly rejected the restrictive Constitutional Planning Committee recommendation and made s. 41 applicable to all actions taken under any law whatsoever subject to the limitation on cases where no discretions are vested in those who take such actions.

As obvious from the foregoing my answer to the second question is in the negative.

KAPI DCJ: This is a reference made pursuant to s. 19 of the Constitution by the Morobe Provincial Executive Council.

The questions raised relate to the interpretation and application of certain provisions of the Constitution to a series of amendments passed by the National Parliament on minimum penalties: Acts Nos 10 of 1983, 17 of 1983 and 29 of 1983. Essentially, the reference raises the question of the validity of these provisions.

The reference raises several provisions of the Constitution for consideration. However, at the initial hearing, submissions were made only on s. 36(1) of the Constitution.

“36.    Freedom from inhuman treatment.

(1)      No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.”

Counsel appearing for the Morobe Provincial Executive based his submissions on a general basis regarding these provisions. As I understand these submissions, the minimum penalty provisions which range from a penalty of a minimum fine of not less than K2,000 for the offence of allowing disturbances on licensed premises under s. 27 of the Summary Offences Act 1977 to a minimum penalty of ten years imprisonment for the offence of rape under the Criminal Code (Ch. No. 262), are contrary to s. 36(1) of the Constitution in that all these minimum penalties are disproportionate to the least of any of these offences. It is submitted that the least offender, say, a technical offender in any of these offences, would be punished with the minimum penalty. This, it is submitted, is disproportionate to the nature of these types of offences. It is therefore submitted that this kind of punishment is (a) cruel punishment, or (b) inhuman punishment, or (c) is a punishment which is inconsistent with respect for the inherent dignity of the human person. It is obvious that the legal consequences of this submission are far reaching, and therefore the decision in this case is of great importance.

Before I turn to the construction of s. 36, I need to deal with Mr Griffin’s submission that this court should adopt the reasoning of the United States Supreme Court. He relied very heavily on the United States Supreme Court cases in support of the proposition that s. 36 imposes upon the legislature a duty of proportioning punishment according to the nature of the crime. If a law prescribes a punishment which is disproportionate to the nature of the crime, it is submitted that this is contrary to the cruel and inhuman punishment provisions under s. 36 of the Constitution.

The landmark decision in support of the above proposition is the case of Weems v. United States [1910] USSC 127; 217 US 349 (1910) 54 L. Ed. 793. This was an appeal from the Philippines which involved the consideration of the Philippines Bill of Rights and the provisions of the Penal Code under which the falsification by a public official of a public and official document, must be punished by a fine and a minimum imprisonment term of twelve years one day, to a maximum of twenty years, with additional punishment of carrying a chain at the ankle, hanging from the wrist, to deprivation during the imprisonment of civil rights, and to perpetual absolute disqualification from enjoying political rights, holding office, etc. and to surveillance of authorities during the rest of his life. The defendant, under this law, was sentenced to serve fifteen years in cadena temporal, including carrying chains at the wrists and ankles and the perpetual loss of right to vote and hold office. The United States Supreme Court, in considering the case, came to the view that the Philippines Bill of Rights prohibiting the infliction of cruel and unusual punishment was taken from the United States Constitution and therefore has the same meaning. This decision is regarded as a decision on the construction of the Eighth Amendment of the United States Constitution. The Eighth Amendment is in the following terms:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In Weems case, the Supreme Court came to the conclusion that the Eighth Amendment prohibits excessive or disproportionate punishments as distinct from cruel punishments for which this prohibition was originally enacted in the English Bill of Rights. This notion of disproportionality, that particular sentences may be excessive for particular crimes, has been followed in other United States Supreme Court cases. See Robinson v. California [1962] USSC 130; 370 US 660 (1962) 8 L Ed 2d 758; Trop v. Dulles [1958] USSC 57; 356 US 86 (1958) 2 L Ed 630; Furman v. Georgia [1972] USSC 170; 408 US 238 (1972) 33 L Ed 2d 346.

I have considered these decisions and I am of the opinion that the United States decisions should not be adopted.

First, the United States decisions are not binding on this court. However, I must admit that these cases have thrown much light on my approach to the construction of s. 36 of the Constitution.

Second, our Constitution is a home-grown one, and the courts in construing its terms, must have close regard to the wording. It is true that our Constitution deals with subject matter which is also dealt with by the Constitution of the United States of America. Care must be taken in dealing with the terms. In my view, the wording of the Eighth Amendment of the United States Constitution is significantly different to the wording of s. 36 of our Constitution. The Eighth Amendment of the United States Constitution is worded in such a way that the United States Supreme Court has ruled that it only applies to those persons who are convicted of crimes: see Ingraham v. Wright [1977] USSC 56; 430 US 651 (1977) 51 L Ed 2d 711. Although it is not necessary to decide the question, I do not think that the same interpretation can be read into the terms of s. 36. In so far as the United States cases support the notion of disproportionality under the terms of the Eighth Amendment, the difference in the wording is significant. The Eighth Amendment speaks about “excessive bail” and “excessive fines”. In supporting the argument that the intention of the Eighth Amendment was prohibition of excessive punishment, Marshall J., in concurring with the majority in Furman v. Georgia (supra), stated at 403:

“It should also be noted that the ‘cruel and unusual’ language of the Eighth Amendment immediately follows language that prohibits ‘excessive bail’ and ‘excessive fines’. The entire thrust of the Eighth Amendment is in short against ‘that which is excessive’.”

See also the judgment of Brennan J. at 372. Section 36 of our Constitution does not contain the words “excessive bail” or “excessive fine”, therefore the notion of disproportionality or excessiveness cannot be read into our provision. In addition, the Eighth Amendment also uses the word “unusual” punishment. Although it is not relevant to the present case which deals with punishment by imprisonment and fine (which could not be described as “unusual” punishments), it imports a different approach to construction of the Eighth Amendment from the construction of cruel punishment. See Marshall J. in Furman v. Georgia at 402. I refer to it to simply illustrate the fact that the Eighth Amendment of the United States Constitution is not entirely the same as our s. 36.

Third, with respect to the United States Supreme Court, by introducing the notion of proportionality or excessiveness into the Eighth Amendment, the court has overstepped its judicial function and ventured into the legislative function of prescribing penalties for crimes. This interpretation allows the judiciary to address itself to legislative motives and policies in prescribing penalties for crimes. This is a violation of the principle of separation of powers between the judiciary and the legislature. See the strong, dissenting judgment of White J. and Holmes J. in Weems v. United States commencing at 805, and in Furman v. Georgia, Burger C.J. at 427, Blackman J. at 445, Powell J. and Rehnquist JJ. at 451.

The conclusion not to adopt the United States Supreme Court cases is supported by the debates in the Constituent Assembly on the draft of our Constitution. Under s. 24(1)(b) of the Constitution, the court may refer to these debates as an aid to the interpretation of the Constitution. I note that this provision speaks about the official records of debates. Up until now the Parliament has not produced the official records of the debates in the Constituent Assembly. The Parliament has only produced the draft records of debates. In my view, this failure is fatal and cannot be excused. It is almost nine years since this nation gained Independence, and during this time important questions of law have arisen for decision by the Supreme Court. These decisions will form the basis for the proper interpretation of our Constitution for years to come. I find it unacceptable that, in the course of interpreting the Constitution, this Court does not have access to the official records of debates by the members of the Constituent Assembly on the interpretation of the Constitution. This provision recognises the fact that the courts may refer to these debates to find the intention of the constitutional framers in enacting a particular provision. I cannot resist the temptation of referring to the draft records of the debates of the Constituent Assembly regarding s. 36 of the Constitution. The debate on this provision took place in the Constituent Assembly on 26 June 1975 and it commences on 395 of the draft records of debates. Mr Ebia Olewale who was at that time the Minister for Justice, in debating the provision at 395, said:

“The detail should in fact, help our courts in their great task of determining rights as between persons and between persons and the executive, by limiting the necessity for exercising judicial discretion in interpreting the Constitution. So our courts should not have to become a law-maker to the same degree as the United States Supreme Court has had to do and therefore our courts should be able to avoid great controversy.” (Emphasis mine.)

It is clear from this that the constitutional framers rejected the approach of judicial legislation by the United States Supreme Court in interpreting the Eighth Amendment.

No detailed submissions were made on the European Convention on Human Rights. Miss Doherty, who appeared as junior to Mr Griffin, referred the court to Ireland v. United Kingdom [1978] ECHR 1; (1978) 2 EHRR 25, on the interpretation given to Art. 3 of the European Convention on Human Rights which is in the following terms: “No-one shall be subjected to torture or to inhuman or degrading treatment or punishment”. We do not have the reports on the decisions of the Commission and the Court of Human Rights in Europe. However, I am grateful to the Chief Justice for making an article available to me which is entitled Article 3 of the European Convention on Human Rights by P. J. Duffy, International and Comparative Law Quarterly, vol. 32, 316. The article discusses some of the cases on the interpretation of Article 3 of the European Convention on Human Rights in a different context. This has given me some assistance in interpreting s. 36. However, the question of proportionality is yet to be determined conclusively by the Court of Human Rights: see case noted on footnote 82 at 326 of the article.

SECTION 36 OF THE CONSTITUTION

There is one basic theme which runs right through this provision. I regard this as the central theme around which the construction of all the terms must revolve. This section seeks to protect the dignity of the human person. This was also recognised by the United States Supreme Court: see Trop v. Dulles at 642, Furman v. Georgia at 367-368. The last limb of s. 36(1) of the Constitution expressly states this. This special protection under the Constitution is given only to mankind and not other animals. Man is special and unique. Man is created in the image of God: Genesis Ch. 1, v. 27. In my view, the dignity of the human person stems from the Christian philosophy of mankind. These Christian principles are a foundation upon which our nation has been built. See preamble to the Constitution. When we get away from the uniqueness of mankind, there is a threat to the dignity of the human person. The value and worth of mankind which the Constitution has entrenched, let no authority undermine. This is a significant protection because a government which does not believe in the uniqueness of mankind may treat its people like animals. This theme also runs right through the other provisions of the Constitution, s. 37(17), s. 38(1), ss 39, 40 and 41 of the Constitution.

It follows from this that any treatment or punishment that is inconsistent with respect for the inherent dignity of the human person is prohibited by s. 36(1). In my view torture, cruel or inhuman treatment or punishment are inconsistent with respect for the inherent dignity of the human person.

It has been argued in this reference that minimum penalty provisions are inhuman or cruel punishment. What is cruel or inhuman punishment? Courts in other jurisdictions have found it difficult to define these terms. Their meaning can best be illustrated by the kinds of punishment for which this prohibition was historically brought into existence in England, such kinds or modes of punishment as the use of the rack, thumb screws, stretching of limbs etc. When one examines these kinds of punishments one finds a common feature in that severe pain and suffering is caused to the human person, either physically or mentally. In my opinion this is what is prohibited in s. 36(2) such as causing a lingering or slow death which may cause severe pain and suffering. There may be other forms of punishment which may not cause severe pain and suffering in their initial application but may result in severe suffering or injury to the human person, physically or mentally. I do not think that there is much difference in the meaning of the terms “cruel” and “inhuman punishment”. In my view there would be no difference in the pain and suffering that is caused to the human person. They are both inconsistent with respect to the dignity of the human person. However, torture is regarded as an aggravated form of inhuman or cruel punishment which may be applied for a particular purpose.

This provision must be given a wide interpretation. It embraces all kinds of punishment (which may be devised in the future) within its intendment. Such punishments may not cause any suffering or injury but may be seen to degrade the human person or treat the human person at the level of other animals. The issue is always the same — is a particular punishment inconsistent with respect to the dignity of the human person?

KIND, AND NOT DEGREE

In so far as this Court is called upon to consider criminal punishments, the prohibition under s. 36(1) relates to the kinds of punishment which are inconsistent with the dignity of the human person, and not the degree of punishment given in relation to the seriousness of the offence committed, for any particular offence. This was recognised by Steward J. in the majority decision in Furman v. Georgia at 389-390:

“In the first place, it is clear that these sentences are ‘cruel’ in the sense that they excessively go beyond, not in degree but in kind, the punishments that the State legislatures have determined to be necessary.” (Emphasis mine.)

See also the dissenting judgment of White J. in Weems v. United States at 814. The argument of proportionality by Mr Griffin is essentially one of degree of punishment given to the varying degrees of particular crimes committed by offenders of a particular offence. In my view s. 36 is not concerned with a proper punishment for a defined criminal act. This is a power given to the legislature: see s. 37(2), s. 99(2)(a) and s. 109(l) of the Constitution. I will return to these provisions in more detail later on. In my view, s. 36 only prohibits a severe kind of punishment regardless of the offence committed. It does not direct itself to the question of what is a criminal act and the proper punishment that should be imposed for that particular act. This interpretation can be supported by reading s. 36 together with s. 35 of the Constitution. Although s. 36(2) does not prohibit the death penalty, it prohibits the manner or the circumstances of the killing. This is to be read together with s. 35(1)(a) of the Constitution. This provision is in the following terms:

“35.    Right to life.

(1)      No person shall be deprived of his life intentionally except:

(a)      in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law ...” (Emphasis mine.)

Under this provision, it is within the powers of the legislature to prescribe the punishment of the death penalty for any offence whatsoever. Section 36(2) recognises this but prohibits the kind of suffering that may be caused to the offender by the manner or the circumstances of executing the death. Whether or not the manner or the circumstances of executing death are cruel or inhuman must be considered within the test I have outlined under s. 36(1) on what is cruel or inhuman punishment. This prohibition does not extend to the power of the legislature to prescribe the penalty of death for any offence whatsoever. The construction of these two provisions denies any principle of proportionality in s. 36.

“Inhuman” or “cruel” punishments (as I have interpreted the words) may be described as disproportionate or excessive punishments. But not all disproportionate or excessive punishments amount to inhuman or cruel punishments. Examples of this may be seen in appeals against severity of sentence to the Supreme Court. In appropriate cases the Supreme Court has reduced the sentence where it was of the view that the sentence was excessive or disproportionate to the circumstances of the case. It could not be said that the sentence reversed is a punishment that is cruel, inhuman or is inconsistent with respect for the inherent dignity of the human person. The principle of proportionality is a much wider concept and had the constitutional framers intended it, they would have used that terminology or words to the same effect. As will be seen later on in my judgment, the Constitution introduced this terminology or principle in s. 41 of the Constitution.

This interpretation is consistent with the other provisions of the Constitution on the powers of the legislature. Section 109(1) of the Constitution gives the parliament the powers to make laws for the peace, order and good government of Papua New Guinea, and the welfare of the people. This power includes the power of prescribing criminal acts and the penalties for those acts. Such laws are for the peace, order and good government of Papua New Guinea and the welfare of the people. It is significant to note that under s. 109(3) of the Constitution such a law is not open to challenge in any court on the ground that it is not for the peace, order or good government of Papua New Guinea, or the welfare of the people.

Under s. 37(2) only the Parliament can define a criminal offence and prescribe the penalty for that offence. As to what is the proper punishment for these offences is a power given only to the Parliament. The power of prescribing punishment for an offence is only limited to the extent that punishments which are prescribed are not of a kind that affect the inherent dignity of the human person in the way I have interpreted s. 36. It has nothing to do with the proportionality of the punishment imposed for a particular criminal act. To read the principle of proportionality into s. 36 is to allow the courts to exercise a power which is given to the Parliament to determine in relation to punishment of criminal offences. Such an interpretation, in my view, violates the principle of separation of powers of the legislature and the judiciary: s. 99(3) of the Constitution.

APPLICATION TO MINIMUM PENALTY PROVISIONS

As I have pointed out before, the penalties which are challenged under these minimum penalty provisions range from a fine not less than K2,000 to a minimum term of imprisonment of ten years in hard labour. The question is whether the minimum fine and minimum imprisonment term provisions are inhuman or cruel punishments, or that they are inconsistent with respect for the dignity of the human person.

I do not see how a minimum penalty of a K2,000 fine would be regarded as a cruel or inhuman punishment, or a punishment which may be considered as inconsistent with the dignity of the human person. As to the penalty of minimum imprisonment terms, I also consider they do not violate s. 36, as interpreted. Imposition of fines and terms of imprisonment up to life have been prescribed by other provisions of the written law for many years and by most democratic nations.

Whilst it is true that those who are imprisoned have their liberty restricted, this, in my view, does not violate the cruel or inhuman punishment provisions under s. 36. Section 42(1)(b) recognises this. In this reference, we are not concerned with the treatment of prisoners by the Corrective Institutions authority in the prisons: s. 37(17) of the Constitution. What has been challenged in this reference is the lowest in the range of punishments imposed for any of the offences committed. In each case there is a maximum for the offence. The maximum has always been the same, and has not been altered by the amendments. The maximum has not been questioned at all. I find it difficult to conclude that the minimum would be regarded as a cruel and inhuman treatment when, at the same time, the maximum penalty is not questioned. However, the submissions were put in this manner because of the wrong interpretation that s. 36 deals with proportionality of punishment in accordance with the nature of the particular crime. I have found this to be a wrong premise and reject this argument.

Judicial discretion in punishment has always been exercised subject to limits set by the legislature. Under the Criminal Code (Ch. No. 262), the maximum is determined by the provisions and the minimum, or alternatives, are provided by s. 19 of the Code.

The Summary Offences Act 1977 also provides for the maximum in the same manner. The Local Courts Act 1963 and the District Courts Act 1963 set out what the magistrates can do as far as minimum and alternative punishments are concerned. In addition to this legislation, the Interpretation Act (Ch. No. 2) also applies: see Pt I, Divn 3 of Ch. 2.

The courts cannot exercise any powers outside these written laws: see Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510; Supreme Court Reference No. 2 of 1981; Re s. 19(1)(f) of the Criminal Code [1982] P.N.G.L.R. 150. The principles of proportionality exercised by the courts have been exercised within the range allowed by the legislature. Traditionally, the legislature allows the courts a wide range of alternatives within the given range. However, the legislature in its wisdom has decided to narrow the discretion of the courts for certain offences. The minimum penalty provisions have raised the minimum and the courts must adjust the principles of proportionality within the given range.

In some jurisdictions no discretion is given to the courts: e.g. mandatory life sentence for murder — see Queensland and West Australian Criminal Codes.

The legislature has acted within its powers and the courts are well advised to exercise their functions within the powers dictated to them.

SECTION 41

At the initial hearing, this provision was not argued fully. However, the court, in its deliberations on the submissions relating to s. 36, considered that s. 41 was relevant and recalled counsel to argue the provision.

The reference was amended by adding a new question:

“(2)    If the minimum penalty legislation is valid under s. 36 of the Constitution, can the National, Supreme Court or any other prescribed tribunal in individual cases give lesser punishments under s. 41 and s. 57 of the Constitution?”

This question assumes two important issues:

(a)      that s. 41 of the Constitution applies to minimum penalties;

(b)      that in appropriate cases a minimum penalty may be declared invalid under s. 41.

During argument, the court indicated that these two issues should be fully addressed. The court heard full argument on the two issues.

Application of s. 41

Section 41 is as follows:

“41.    Proscribed acts.

(1)      Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      is harsh or oppressive; or

(b)      is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c)      is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)      The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)      Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

The scope of this provision was fully considered in Premdas v. Independent State of Papua New Guinea [1979] P.N.G.L.R. 329. The provision was raised within the context of a revocation of an entry permit given to a foreigner under the provisions of the Migration Act 1963 (as amended). The Supreme Court was constituted by five judges. They all adopted a wider interpretation of the application of s. 41.

The background to this provision is to be found in the Constitutional Planning Committee Report. The Committee’s narrative on this provision appears on 5/1/20, par. 120. At 5/1/33 of the Report the Committee recommended the following provision:

“19.    Notwithstanding the validity under the provisions of this chapter of a law under which any person is arrested, detained, questioned or searched, or his property entered upon or searched, action taken under that law for any of these purposes shall be unlawful insofar as the force used or the conduct of the persons taking the action is excessive or oppressive in the actual circumstances of the case.”

It is clear from this that the Committee envisaged a narrow application of this provision. They intended to cover only actions taken under laws relating to arrest, search and questioning.

The Constitution of Papua New Guinea went through many working drafts. The fourth draft of 10 May 1975 was tabled before the Constituent Assembly. The relevant section under this draft is s. 38.

“38.    Proscribed acts.

(1)      Notwithstanding anything to the contrary in any other provision of any law, any act that is taken under a valid law but in the particular case:

(a)      is harsh or oppressive; or

(b)      is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c)      is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)      The burden of showing that Subsection (1)(a),(b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)      Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

This section was considered on 26 June 1975 in the National Constituent Assembly without any debate and was approved. The final text of the Constitution was drawn up after the Constituent Assembly finally approved the Constitution on 15 August 1975. In this text s. 38 in the fourth draft was renumbered s. 41, which is now the present provision.

It has been necessary for me to set out this background in order to give a proper interpretation to the scope of s. 41. The following points are significant in considering the proposal by the Constitutional Planning Committee and the final approval by the Constituent Assembly:

(1)      The Constituent Assembly did not adopt the proposal by the Constitutional Planning Committee.

(2)      The Constituent Assembly adopted a provision which is worded much more widely than the proposal by the Constitutional Planning Committee. This will become apparent when I consider the provision in detail.

However, for the purposes of s. 24 of the Constitution, which states that the Constitutional Planning Committee Report may be used as an aid to interpretation, I conclude that the C.P.C. Report cannot be of any assistance in considering the scope of s. 41. The narrow application of s. 41, as recommended by the C.P.C., was not adopted.

I now turn to the construction of s. 41. The words “Notwithstanding anything to the contrary in any other provision of any law ...” are significant. This is to be contrasted with the proposal by the C.P.C. which used the words “Notwithstanding the validity under the provisions of this chapter of a law ...”. While the C.P.C., by these words, had in mind laws which are valid under the provisions of Human Rights and Obligations, and emergency laws of the Constitution, the Constituent Assembly had in mind the provisions of any law, including those that the C.P.C. had in mind. The introductory words of s. 41 are of wide import and must be given a wide application.

This interpretation is reinforced by the next limb of the introductory words of s. 41(1):

“... any act that is done under a valid law ...” (Emphasis mine.)

These words are clear enough and they declare the intention of the Constituent Assembly. As Lord Reid said in Inland Revenue Commissioners v. Hinchy [1960] A.C. 748 at 767:

“But we can only take the intention of Parliament from the words which they have used in the Act, and therefore the question is whether these words are capable of a more limited construction. If not, then we must apply them as they stand, however unreasonable or unjust the consequences, and however strongly we may suspect that this was not the real intention of Parliament.”

The words under consideration mean any act done under a valid law and are not limited in any way at all. The Constituent Assembly removed the restrictions proposed by the C.P.C. To read any qualification into this provision is to ignore the clear meaning of the words used and to introduce an element of judicial legislation under the guise of judicial interpretation. That would be usurping the function of the legislature.

I fully agree with the conclusion reached by the Supreme Court in the Premdas case (supra), and particularly the remarks of Prentice C.J. at 344:

“... The body of s. 41 itself contains no reference at all to its being restricted to the support of ‘rights’.

I consider that, giving s. 41 a fair and liberal meaning as the court is instructed to do by schedule 1.5(2) of the Constitution, it should be regarded as of general application.”

This provision is unique because it has opened up many areas of exercise of power and discretion by authorities established by law, which were previously not subject to scrutiny. I consider this to be a commendable inroad into the exercise of power affecting so many people. Supervision by the courts in this area has been limited either by common law or statutory provisions and so the dispensation of justice has not been closely scrutinised. Section 41 of the Constitution could be described as an adoption of what Lord Scarman said in urging:

“... a new constitutional settlement that makes use of judicial power ... to use the rule of law in resolving the conflicts that will arise between the citizen and the state in the newly developed fields of administrative-legal activity upon which the quality of life in the society of the twentieth century already depends.”: see Lord Scarman, English Law — The New Dimension The Hamlyn Lectures (London, Stevens, 1974) at 75.

In Australia, this area of activity has now come under more scrutiny than before: see Administrative Appeals Tribunal Act 1975 (Cth), Ombudsman Act 1976 (Cth) and Administrative Decisions (Judicial Review) Act 1977 (Cth).

This provision has an overriding effect on any act done under any law including Constitutional laws. Section 41, as interpreted, would be applicable to a minimum penalty imposed under the minimum penalty provisions. The act would be the imposition of the minimum penalty. The act must be done before the rest of the provision is applied. In practical terms a sentencing court, faced with a minimum penalty, is bound to impose the sentence. Where a sentence is considered to be in breach of s. 41 of the Constitution, separate proceedings may be taken before the appropriate court. I do not think that it is right to allow the same court which imposes the sentence to consider invalidating the same.

Where a court of summary jurisdiction imposes a minimum penalty, the appropriate proceedings under s. 41 should be taken in the Supreme Court. These courts do not have any jurisdiction to interpret and apply the Constitution: s. 18 of the Constitution.

Likewise, if the National Court imposes a minimum penalty, appropriate action under s. 41 should be taken in the Supreme Court: see s. 18 of the Constitution. A remedy under s. 41 cannot be described as an enforcement of a right or freedom under s. 57 of the Constitution, and therefore the National Court has no power to grant the remedy. It is a general remedy which is quite distinct and separate from enforcement of a right or freedom. This distinction is reinforced by s. 58 of the Constitution. An action made unlawful under s. 41 may or may not give rise to an infringement of a right or freedom. Section 41 does not indicate the forum in which this remedy may be obtained. Unless there is another provision of the Constitution which authorises the National Court to grant this remedy, s. 18 of the Constitution is quite clear that the Supreme Court has original jurisdiction to the exclusion of other courts to interpret and apply any provision of a constitutional law.

It is not necessary to define the meaning of s. 41(1)(a), (b) and (c) of the Constitution. Their meaning can only be understood clearly within the context of the subject matter of the act which is under consideration and the particular facts of each case. I agree with the following statement made by Prentice C.J. in the Premdas case (supra) at 344:

“... The criteria put forward in the section are clearly questions of fact. Both counsel concur in the submission that in assessing the quality of the relevant facts, the test should be an objective one.”

In an appropriate case, a minimum penalty imposed under the minimum penalty provisions may be declared invalid or unlawful.

I now turn to the issue raised by the amended question. The question is if a minimum penalty is declared invalid or unlawful under s. 41, can the National and Supreme Courts or any other prescribed tribunal give a lesser punishment?

The scope of s. 41 of the Constitution only goes so far as declaring a sentence in a particular case invalid but it does not go so far as dealing with the issue in question. It has been argued that a court could impose a lesser punishment under s. 57(3) of the Constitution. This submission was made on the basis that the invalidity of a sentence under s. 41 is a right enforceable under s. 57(1) and consequently a court could make an order for a lesser penalty under s. 57(3) of the Constitution.

It is true that a person who is not happy with a minimum penalty has a right to invoke the provisions of s. 41. However, once he has invoked the right, he can be said to have exercised it. Whether or not he gets a favourable decision is in the discretion of the court. It can only invalidate the sentence. The power to impose a lesser penalty is a different issue and cannot be found in s. 41.

Section 57 can have no application to the issue in question. Section 57 only applies to enforcement of rights or freedoms. As I have already pointed out, s. 41 is a separate and distinct constitutional remedy.

The power of a court to impose criminal punishment has been settled in the Supreme Court. A court has no power to impose a penalty which is not prescribed by a written law: see Acting Public Prosecutor v. Uname Aumane; Supreme Court Reference No. 2 of 1981. Where a minimum penalty is declared invalid, the court is left without any discretion to impose any penalty. There is a gap. This is a gap which can only be filled by the legislature. I would suggest that the Parliament urgently consider filling this gap.

My answers to the questions would be as follows:

QUESTION 1

The provisions of the Criminal Code (Amendment) Act, (No. 10 of 1983), the Summary Offences (Amendment) Act, (No. 17 of 1983), and the Criminal Code (Amendment) Act, (No. 29 of 1983), in so far as the said provisions compel the court to impose a minimum penalty for an offence, are not inconsistent with s. 36 of the Constitution, and therefore are valid.

QUESTION 2

However, in individual cases, a minimum penalty may be invalidated on the grounds that it is:

(a)      harsh or oppressive; or

(b)      is not warranted by or is disproportionate to the circumstances; or

(c)      it is not reasonably justifiable in a democratic society under s. 41 of the Constitution. The court has no power to impose a lesser punishment.

SECTION 36

BREDMEYER J: By s. 24 of the Constitution we are entitled to use, inter alia, the report of the Constitutional Planning Committee and the debates of the Constituent Assembly on the draft of the Constitution as aids to interpretation. The part of the report and of the debates relating to s. 36 have been quoted by the Chief Justice. The report said “Some of our people are well aware of instances of torture and other inhuman treatment which have been meted out by successive colonial administrations ...”. No examples are given by the Constitutional Planning Committee. The committee may have had in mind German labour laws which allowed the flogging of lazy or disobedient labourers, S. Firth, New Guinea under the Germans (Melbourne, 1982), 109 et seq. The committee may have had in mind a law in force during the Australian colonial period which permitted the flogging of offenders under the age of fourteen years (reg. 61 of the Native Regulations 1939 of Papua) or the law which forbade native men to wear clothes on the upper part of their body (reg. 110 Native Administration Regulations 1924 of New Guinea). Those are examples of colonial laws which the people may have regarded as cruel, inhuman or degrading. Or the people referred to in the report may have had in mind cruel or inhuman treatment which was illegal under colonial laws but nevertheless escaped punishment, for example the bashing or flogging of a labourer by a plantation manager or mistreatment of people by a kiap. Some Australian plantation managers were convicted for the assault, and in some cases for the manslaughter, of a labourer; others escaped punishment. The story of one kiap who mistreated people in Tapini in 1957 is told in R. Cleland, Pathways to Independence, (Perth, 1983) at 220-225. As I have said, the Constitutional Planning Committee itself gave no examples of torture and inhuman conduct that it sought to outlaw, and the only example mentioned in the debate in the Constituent Assembly, was that given by Tom Koraea quoted by the Chief Justice (supra). That was of assaults by a plantation manager which were illegal under the ordinary criminal laws of the land.

Paragraph 44 of the Constitutional Planning Committee report, quoted by the Chief Justice, refers to “treatment or punishment” that is cruel, inhuman or degrading. It speaks of instances of torture and “other inhuman treatment” meted out by successive colonial administrations. It concludes: “We firmly believe that these practices should be specifically outlawed in the Constitution”. The use of the phrases I have emphasised — “treatment”, “punishment” and “practices” rather than laws indicates I think that the committee wanted to invalidate not only cruel, inhuman or degrading laws but also to outlaw cruel, inhuman or degrading treatment, punishment and practices whether the perpetrators of those evil deeds were acting under, or contrary to, a law of the law.

I turn now to the words of s. 36. We are required to give the words and expressions used a “fair and liberal meaning”: (Sch. 1.5.) I emphasise the word “liberal”. We are not interpreting an ordinary statute but the supreme law of the land, a constitution which was drafted with great idealism as seen in the words used in the Preamble and the National Goals and Directive Principles. We must give all parts of the Constitution a fair and liberal interpretation and this is especially true of its human rights provisions contained in Divn 3 of Pt III. Those provisions are very similar to the human rights provisions in the Westminster model constitutions — which is the term given to a host of independence constitutions adopted by ex-British colonies in the 1960s and 1970s. The Privy Council has adopted a principle of interpretation of those constitutions which is perhaps similar to our fair and liberal principle. Lord Wilberforce reading the opinion of the Privy Council in Minister of Home Affairs v. Fisher [1979] UKPC 21; [1980] A.C. 319 at 328 said that the human rights provisions of the constitution — he was there dealing with the Constitution of Bermuda — call for:

“... a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism; suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.”

He elaborated what he meant by “a generous interpretation” at 329. It was:

“... to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law.”

Those principles have been repeatedly followed by the Privy Council for example, Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648 and Riley v. A.G. of Jamaica [1982] 3 All E.R. 469.

I consider that the words “treatment or punishment” refer to treatment and punishment carried out legally or illegally. The section is thus not only aimed at invalidating cruel (etc.) laws and cruel treatment and punishment inflicted pursuant to those laws, but also cruel (etc.) treatment and punishment which is illegal because contrary to the ordinary laws of the land. It gives to persons affected by the latter kind of treatment or punishment a constitutional remedy (under s. 57) and a right to damages (under s. 58) in addition to criminal and administrative law remedies and a common law right to damages for assault and the like.

The Concise Oxford Dictionary definition of “cruel” includes: indifferent to or delighting in another’s pain; painful, distressing. Examples of cruel punishment might be capital punishment, cutting off the hand of a thief, and stoning an adulteress. I say capital punishment because I think it was so obviously covered by the phrases in s. 36(1) that the framers found it necessary in s. 36(2) to exempt capital punishment from the freedom.

The section says “cruel or otherwise inhuman”. I do not think that the words “or otherwise inhuman” add much to the word “cruel”. For example castration is something done to animals. If done to a man in this day and age it would be regarded as inhuman. But it would also be obviously cruel.

The third phrase or alternative in the section “or is inconsistent with respect for the inherent dignity of the human person” is probably saying something more than cruel or inhuman. Certainly conduct which is cruel or inhuman would also “be inconsistent with respect for the inherent dignity of the human person”. Torture would be an aggravated form of conduct which is inconsistent with respect for the inherent dignity of the person. But there may be other conduct not overtly cruel or inhuman but which would nevertheless fall into this third category. The same third phrase is also used in 37(17) of the Constitution. That subsection, in the section dealing with protection of the law, reads:

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

That right only applies to detainees or prisoners. There is some overlap with s. 36. That section would also apply to non-prisoners. A man about to be subject to a vile or horrific form of initiation ceremony by native custom or in a staff training college could seek redress under s. 36(1) but not under s. 37(17).

There have been a few local cases applying or interpreting s. 36(1) or s. 37(17). They all concerned prisoners. The first was Yamore Memera v. Matthew Bisang [1976] P.N.G.L.R. 419. In that case a number of men had behaved in a riotous manner at Kwikila. A police riot squad went to their village which was two hours journey from Kwikila, arrested them, and drove them to Kwikila for questioning. They were then driven to Port Moresby for trial in the Boroko District Court. Presumably they were taken to Port Moresby because of lack of facilities at Kwikila to detain in custody the number of men involved. At 421 Frost C.J. in obiter dicta said that taking the men such a long way to Port Moresby for trial without any advance warning to their families was against the spirit of s. 37(17) that prisoners should be treated with humanity. In Heni Pauta and Kenneth Susuve, In re [1982] P.N.G.L.R., Kidu C.J. held that a beating of detainees by warders infringed s. 36 and s. 37(17). In Tom Amaiu v. The Commissioner of Corrective Institutions [1983] P.N.G.L.R. 87 I held that lidless toilet buckets, a strict no-talking rule, being forced to obtain drinking water from a toilet bowl, etc. breached the same sections.

Giving s. 36 a fair and liberal interpretation I accept the argument that a gaol penalty can by its very length be inconsistent with respect for the inherent dignity of the human person and probably cruel. To take an extreme example, a law which imposed a thirty year mandatory sentence for a first offence of shoplifting would fall into that category. The shoplifter deserves to be punished but not to that extent.

Prior to the minimum penalty legislation our courts had a wide discretion on sentencing and exercised that discretion according to principles which are widely in use elsewhere. It is impossible to make a complete list of all the factors taken into account in fixing a sentence and I will not try. But included among them was the public interest, the offender’s interest and the victim’s interest. Under the heading of public interest the courts consider the nature of the crime, its seriousness as seen by the maximum penalty set for it by Parliament, the need to punish the offender, to protect society and deter others. Under the heading of the offender’s interest the court considers his age, his background, his degree of participation in the crime, his previous conduct etc. Under the heading of victim’s interest the court considers the injuries to the victim, or the amount of money involved, etc. In fixing a sentence the court weighs all these matters some of which favour a heavier sentence and some a lighter. When Parliament fixes a mandatory penalty it does so in the public interest — to punish, to deter, to protect society etc. — to the detriment of the other aspects, the offender’s interest the victim’s interest and the like. I can see that a mandatory sentence greatly enhances the deterrent aspect of a sentence. Previously, if someone asked a law officer, “If I committed the offence of rape what penalty would I get?” the answer would be qualified and unclear. The answer would be like this: “The maximum penalty is ife imprisonment, but the average sentence is about three years but it could be more depending on the circumstances, the extent of your participation, the age of the girl, whether it was a pack or solo rape, etc.” With a mandatory penalty the message to the would-be offender is clear: the penalty is ten years irrespective of your background, your degree of participation, the age of the girl, etc. Clearly the efficiency of a penalty as a deterrent is enhanced if it is mandatory. A high maximum penalty has little deterrent effect if experience shows that it is seldom imposed. When Parliament imposes a mandatory sentence it stresses the public deterrent aspects of punishment to the exclusion of other matters but I would not say that that per se infringes s. 36. It is, of course, unfair to offenders in that it gives dissimilar offenders the same penalty but is not, I think, for that reason alone inconsistent with respect for the inherent dignity of the human person. As I see it the excessiveness of a mandatory penalty can infringe s. 36 but not the fact that it is mandatory.

Are the minimum penalties invalid by reason of their excessiveness? I note that all prison terms in Papua New Guinea are subject to remissions for good behaviour, eight days a month for a man and ten days a month for a woman under reg. 140 of the Corrective Institution Regulations. So with good behaviour a man given a ten year sentence for rape will serve about seven years five months.

I briefly compare our minimum penalty for rape with penalties in New South Wales where there is no minimum. In 1976 in New South Wales of sixty-nine persons convicted of rape thirty-five received sentences between five and ten years and twenty-five received sentences of more than ten years: I. Potas, Sentencing Violent Offenders in N.S.W. table 2-02/3. Remissions for good conduct exist in New South Wales. Our minimum is higher than the average or mean sentence for rape in New South Wales but I consider that our crime rate is worse than New South Wales and our law enforcement is worse, so that higher penalties are justified. On the latter, I know from a study of National Court criminal lists and files that a large proportion of men charged with serious crimes never get tried. They escape custody or jump bail and are never apprehended and so escape justice. What would be excessive in New South Wales need not be excessive in Papua New Guinea.

I hold the same view with respect to the other minimum penalties for the Code offences, for example five years and eight years for break and enter and seven years and ten years for robbery. The penalties are high, because the offences are prevalent and law enforcement is very low. Section 36 confers rights on individuals, in this case on offenders, but in interpreting its phrases the court must have some regard to the legitimate public interest. I have come to the view that the minimum penalties although high are not so excessive that they are inconsistent with respect for the inherent dignity of the human person or cruel or inhuman.

I am even more persuaded that the minimum penalties contained in the Summary Offences Act 1977 do not infringe s. 36 and that is because the harshness of those penalties can be tempered by s. 138 of the District Courts Act 1963. That section allows the District Court in certain circumstances not to proceed to a conviction and hence not to impose a gaol term. The circumstances are having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed.

Mr Griffin, counsel for the Morobe Provincial Government, drew an unfavourable comparison between minimum penalties in Papua New Guinea and in Tanzania. My own reading of the Tanzanian cases has brought me to the opposite view: that our minimum penalties are not as harsh as Tanzania’s. To expand this point the Minimum Sentences Act (1963) of Tanzania provided minimum penalties for a list of offences set out in a schedule. Section 5 of the Act gave a way out: the court had a discretion not to impose the prescribed minimum penalty where the value of the property involved was less than Sh. 100/- and the offender was a first offender and where special circumstances existed. The appellate courts were very ready to find special circumstances. In one case the fact that the defendant had dependants — two brothers dependent on him for schooling and three children of his own — was regarded as a special circumstance: Masita v. Republic (1968) E.A. 138. In that case the defendant was a public servant who had collected 20/- for a 5/- licence fee, and had stolen the 15/-. In that case the minimum penalty imposed by the magistrate was two years imprisonment and twenty-four strokes of corporal punishment. It was reduced on appeal to four months imprisonment.

In Desai v. Republic (1971) E.A. 416 the Court of Appeal considered the kind of factors which would amount to special circumstances. One was the triviality of the amount involved. The discretion given by s. 5(2) of the Minimum Sentences Act only applied to dishonesty charges where the money involved was less than 100/- but below that limit small sums could be regarded as trivial. In this case 40/- was involved which the court said was small but not trivial. Another factor was previous good character. The court said that that could amount to a special circumstance and it meant not simply the absence of any prior convictions but positive good character such as long and honourable service to the community. The court said that the circumstances in which the bribe was offered could be taken into account as a special circumstance: for example, it was far more reprehensible to give a bribe to persuade a person to do something wrong than where its object was to induce a dilatory official to do more quickly what it was his duty to do anyway. Another factor was whether the bribe was offered spontaneously as contrasted with a calculated and planned temptation. The court considered that a plea of guilty might be a factor in the defendant’s favour where, in the opinion of the trial court, the plea is a manifestation of genuine repentance and not where it is the mere recognition of overwhelming evidence. The court said that these kinds of factors or a combination of them could amount to “special circumstances” which justified imposing less than the minimum penalty. In Desai’s case a 40/- bribe to a police sergeant had resulted in the minimum penalty of two years imprisonment and twenty-four strokes of corporal punishment. The Court of Appeal held that there were special circumstances justifying not imposing the minimum penalty and a sentence of nine months imprisonment was substituted.

I do not think that the s. 5 of the Tanzanian Minimum Sentences Act (1963) is much of a yardstick by which to judge the Papua New Guinea minimum penalty legislation. It had very limited application; it only applied to offences of dishonesty, bribery, corruption, etc. involving less than 100/- which is not a large sum of money. It is more limited in scope than s. 138 of our District Courts Act. Secondly the Act was repealed and replaced by the Minimum Sentences Act (1972) and I am unable to say if that Act contained any “let out” provision equivalent to s. 5. In Tanzania where s. 5 did not apply there was no other legal escape from the rigour of the law. In Mwakapesile v. Republic (1965) E.A. 407 the defendant was a public servant employed by a District Council who stole rates paid to the council. He was convicted on a number of charges and received various minimum penalties each of two years imprisonment, twenty-four strokes plus compensation orders equivalent to the money he had stolen. On appeal the High Court of Tanzania made the gaol terms concurrent but was unable to alter the seventy-two strokes of corporal punishment. With regard to the seventy-two strokes the court said (at 414) that it was powerless to mitigate the rigour of the law but that it could not conceive that the situation which had arisen was within the contemplation of the legislature. The court said that it could only apply the law; the power to temper it with mercy resided in higher authority. It therefore referred the question of corporal punishment to his Excellency the President for his consideration in the exercise of his prerogative of mercy.

Minimum sentences existed in Kenya and may still exist there. I am unable to say for sure because the East Africa Law Reports (cited “E.A.”) ceased in 1975. The minimum sentences for the theft of stock, even one head of cattle, was seven years: Kimanzia v. Republic [1972] EA 495 and Kibirgen v. Republic (1975) EA 250. The minimum sentence for robbery was fourteen years: Njuguna v. Republic (1972) EA 494, and Muiruri v. Republic (1973) EA 87. In all four cases I have cited the minimum penalties were accompanied by strokes of corporal punishment.

The Kenyan experience may be relevant to this country on how a minimum sentence should be assessed. In Njuguna’s case the Court of Appeal said that the correct approach is to assess the appropriate sentence, taking into account all relevant factors, in the ordinary way, and if that sentence would be less than the minimum, then impose the minimum sentence. If the sentence so assessed is more than the minimum, the latter does not affect it at all. It is incorrect to treat the minimum as a starting point and then add to it if there has been a prior conviction, or if the cattle stolen is more than one, or if there is an aggravating circumstance. This approach has been followed in later cases, for example, Kibirgen’s case cited above.

I would answer the first question asked of us, No.

SECTION 41

Section 41 which has been quoted in full by the Chief Justice, unlike the other rights and freedoms mentioned in Divn 3 of Pt III of the Constitution, is unique to Papua New Guinea. It was not copied from elsewhere so we can gain no help from a study of other countries. It was not copied from our Human Rights Ordinance 1971. To come to an interpretation of the section I propose to look at the actual words used, the section in its context, and the Constitutional Planning Commission report.

Section 41 is widely worded. Its opening words suggest that it is of wide application: “Notwithstanding anything to the contrary in any other provision of any law”. The next phase reads “any act that is done under a valid law”. The word “act” includes an omission or failure to act by virtue of Sch. 1.2. The words “any act” are wide enough to include any act of an official or a court. The word “valid” in “any act that is done under a valid law” is of special significance. Why did the Constituent Assembly or the draftsmen think it necessary to add that word? The word “law” by itself is defined widely in s. 9. Why stress that redress is only open against an act done under a valid law as distinct from any other kind of law? If an official or a court acts without the authority of law then the person affected has adequate remedies to challenge that action in the courts without the necessity of a section in the Constitution. I believe that the word “valid” is not surplusage, that it was put in the section for a purpose, that the phrase means a constitutionally valid law which restricts any basic right given in Divn 3 of Pt III. I give further reasons in support of that view later.

As an aid to interpretation I look at s. 41 in its context. Section 41 comes in Divn 3 of Pt III of the Constitution headed “Basic Rights”. In other countries these rights are called fundamental rights or human rights but in our Constitution the overall term for them is basic rights. They are divided into two categories: fundamental rights of which there are three (ss 35, 36 and 37) and qualified rights of which there are 14 (ss 42-53, 55 and 56). The distinction between the two kinds of rights is not as clear as the different terminology suggests because two of the fundamental rights (namely s. 35 and s. 37) are subject to, or qualified by, a number of exceptions. Thus s. 35 headed the right to life, provides:

“No person shall be deprived of his life intentionally except:

(a)      in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law.”

The section goes on to provide six other exceptions or qualifications when it is lawful to take a life. Sixteen of the seventeen basic rights in our Constitution, whether termed fundamental or qualified rights, are in fact subject to exceptions or qualifications. The one that is not is s. 36 — freedom from inhuman treatment.

Section 41 comes in the Subdivn C of Divn 3, dealing with qualified rights. It is the fourth of four introductory sections before the listing of the qualified rights begins in s. 42. At first glance its context suggests that it has something to do with, or is perhaps limited in scope to, qualified rights. But on closer examination that impression is, I think, dispelled. Section 38 is headed “General qualifications on qualified rights” and it enables a law to be made in carefully defined circumstances to restrict any of the qualified rights. Section 39 is an amplification or continuation of s. 38. Section 40 is headed “Validity of emergency laws”. It too like s. 38 takes away from constitutional rights. It reminds us that constitutional rights can be taken away by emergency laws. Emergency powers are given in Pt X of the Constitution and s. 233 empowers emergency laws to restrict constitutional rights. Both s. 38 and s. 40 take away from rights but there is a big contrast between the two sections. Section 38 takes away qualified rights only, but s. 40 is of wider application. An emergency law can take away one fundamental right, namely s. 37 (the protection of law), as well as several qualified rights. Section 233 clearly states that. And s. 40 itself begins “Nothing in this Part invalidates an emergency law”. The reference to “this Part” is to Pt III, that is to all the basic rights — both fundamental and qualified. Later s. 233, which must be read with s. 41, limits that scope somewhat to one fundamental right and several qualified rights. The other rights cannot be restricted even in a time of an emergency. So although s. 41 is in the part of the Constitution dealing with qualified rights and it follows s. 38 and s. 39 dealing with qualified rights it also follows s. 40 dealing with basic rights, and should not I think be restricted only to qualified rights.

A look at one detail in those sections supports this view. Sections 38, 39, 40 and 41(1)(c) all contain the phrase “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind” — a phrase borrowed from the independence constitution of Nigeria and since then widely followed by other countries. The use of this phrase in all those sections clearly shows a legislative scheme. Under s. 38 a qualified right can be restricted, inter alia, in the interests of public health, to the extent that is reasonably justifiable in a democratic society etc. Under s. 40 an emergency law can restrict certain fundamental and qualified rights so far as it is reasonably justifiable in a democratic society etc. Section 41 goes on to provide an escape from the rigour of these laws. Although a law under s. 38 or s. 40 may, in general terms, be reasonably justifiable in a democratic society etc., and hence be a valid restriction on a constitutional right, if a particular action under that law is not, in the particular circumstances, reasonably justifiable in a democratic society, it will be struck down.

This view that I am formulating that s. 41 only applies to a law which validly restricts a basic right, is strongly supported by the report of the Constitutional Planning Committee which we can use as an aid to interpretation (s. 24). There are two references in the report which I quote.

“First reference at 5/1/20

Action under valid law invalid if excessive or oppressive

Par. 120. We recommend that to provide a safeguard against abuse of or excessive use of a legal power provided for in this Part, any action which is excessive or oppressive in the actual circumstances of the case should be unlawful. Interpretation legislative provisions of this kind are not new to the courts.

Second reference at 5/1/33

Action under valid law invalid if excessive or oppressive

Par. 19. Notwithstanding the validity under the provisions of this chapter of a law under which any person is arrested, detained, questioned or searched, or his property entered upon or searched, action taken under that law for any of these purposes shall be unlawful insofar as the force used or the conduct of the persons taking the action is excessive or oppressive in the actual circumstances of the case.”

I regard each reference as important. It is true that the first reference is in the narrative part of the discussion on human rights although it commences with the words “We recommend” but that does not, in my view, give it lesser importance to the second reference because (1) the second reference, in the recommendation part of the chapter, does not accurately cover or summarise the first reference, and (2) the draftsman appears to have implemented the first reference rather than the more restricted second reference. I regard each reference of great importance to ascertain what was intended by the draftsman and by the Constituent Assembly. As there was no debate in the Constituent Assembly of the C.P.C.’s discussion of this topic, I take the draftsman’s intention and the Constituent Assembly’s intention as synonymous.

I learn two things from the C.P.C. report about s. 41. Firstly it was the intention of the committee that s. 41 should only apply to a law which validly restricts a basic right. (The committee in Ch. 5 of its report referred to the rights as “human rights”; the Constitution calls them “basic rights”. I will use the two terms interchangeably in this part.) This is clear from both paragraphs quoted. Both paragraphs are headed “Action under valid law invalid if excessive or oppressive.” Par. 120 says “to provide a safeguard against abuse or excessive use of a legal power provided for in this Part”. The word “Part” there refers to the whole of Ch. 5 of the report dealing with human rights. Paragraph 19 begins, “Notwithstanding the validity under the provisions of this chapter of a law”. It again refers to a valid law passed under the chapter, that is, a law passed under one of the permitted exceptions to human rights.

The report gives no support to the view that s. 41 applies to non-constitutional rights which I will call civil rights. For example if a man is injured in a motor vehicle accident through the negligence of another, he has a right to sue that person for damages. The injured man has a civil right to sue and the negligent driver has a right not to pay any more than fair and reasonable damages as decided by a court. If they litigate the case, say in the District Court, the C.P.C. report gives no support to the view that either party can come, via s. 41, to the National Court and claim that the award of damages was disproportionate to the requirements of the case. The right to sue for damages for another’s negligence is not a basic right enshrined in the Constitution. Hence s. 41 cannot be used. An appeal lies under the District Courts Act to the National Court to a dissatisfied litigant in that example, but s. 41 is not open to him. Likewise in the field of administrative law. If a person has a fishing licence taken from him by the Minister he may have some legal redress in the National Court if he can show that the revocation was not authorised by law, for example, but, if so, his redress is under the common law and s. 155(4) of the Constitution. He has no right under s. 41. To take the contrary view, as was taken by Prentice C.J. in Premdas v. The State [1979] P.N.G.L.R. 329 at 344 and say that s. 41 applies to judicial and administrative actions which affect all rights, both civil and constitutional, is unjustified. (I do not regard that decision as binding on us, as the exact scope of s. 41 was not fully argued.) As I have said, the two paragraphs quoted refer to the abuse etc. of human rights listed in the Constitution only. Also Ch. 8 of the report which deals with the National and Supreme Courts expresses no discontent whatever with the pre-Independence common law and statute law relating to civil rights. There was no discontent expressed with the appeal rights given by statute from the District Courts, Local Courts and Village Courts. There is no statement there that those appeal rights are too narrow and that, in addition to those rights, a person affected by a lower court decision should have the right to have it negatived if he can show that it was harsh or oppressive etc. There is no statement there, for example, that the appeal rights given to a litigant in the Village Court are too narrow; that in addition to a limited right of appeal to a Local or District Court magistrate he should have a direct right of review, via s. 41, to the National Court. Similarly there was no discontent expressed with the pre-Independence administrative law. The powers exercised by the superior courts pre-Independence to grant prerogative writs (and I think declaratory orders) were enacted in s. 155(4). But there is no statement in Ch. 5 or Ch. 8 of the report that those powers were inadequate, and that the Constitution should provide for review on the merits of decisions by officials and tribunals, as has been allowed by statute in Australia when the Administrative Appeals Tribunal was established.

To interpret s. 41 to mean that it provides a means of review (1) for all lower court decisions, supplementary to the appeals allowed by statute, and (2) for decisions of officials supplementary to the administrative law means of review, in addition to stopping unwarranted interferences with basic rights, is not only contrary to the C.P.C. report, but is to over-inflate the true importance of the section. The subject matter of s. 41 received two brief paragraphs totalling three sentences in the chapter on human rights which covers thirty-eight pages of close typing. The committee was very careful to enumerate which rights it wanted and to elaborate the permissible exceptions thereto. It chose only fifteen rights — eleven taken from the Human Rights Ordinance 1971 and four others. The s. 41 “right” is not one of these rights. All fifteen rights were enacted in the Constitution — it is easy enough to compare the C.P.C.’s list and the Constitution’s list — plus two others, s. 55 (Equality of citizens) and s. 56 (Other rights and privileges) which are of minor importance. They cover minor matters which the draftsman possibly had left over from the fifteen major rights recommended by the C.P.C. Although the C.P.C. proposed in two places something like s. 41, it did not propose it as one of the main rights — but more of a minor ancillary matter. I consider that the draftsman has accurately got the C.P.C.’s intention in his nondescript heading for s. 41, “Proscribed acts”, compared to the grand and important headings for the major fifteen rights, for example: the right to life, the right to privacy, the right to vote and stand for office, freedom from inhuman treatment, freedom from forced labour, protection of the law, and liberty of the person.

The second point I glean from the C.P.C. report about s. 41 is that the committee was concerned about discretionary acts. Paragraph 120 of the report speaks of “abuse or excessive use of a legal power” and of action which is “excessive or oppressive” in the actual circumstances of a case. It seems to me that an action can only be categorised as an abuse of a power if it goes beyond power; an action can only be categorised as excessive or oppressive if it goes beyond what would be a reasonable exercise of that power. The terminology used in par. 19 of the report is similar — “the force used or the conduct of the persons taking action is excessive or oppressive in the actual circumstances of the case”. Again I consider one can only judge the force used or the conduct as excessive or oppressive if it exceeds a reasonable norm. The examples used in par. 19 of the mischief sought to be avoided, all refer to discretionary acts. The examples given are arrest, detention, questioning of a person, and search of a person or of his property. The police have power by statute to do all these things but how they perform their duties is discretionary. An arrest may be carried out gently or by violence. Questioning can be fair or unfair, etc.

The minimum penalty legislation was passed under s. 42(1)(b) of the Constitution. It is a permitted exception to the liberty of the person, one of the basic rights, and is thus a valid law within the meaning of s. 41. It does not infringe s. 36 or any other of the basic rights. When a judge sentences a man to a minimum penalty term of imprisonment, his action involves no discretion. To say that the judge’s action is harsh or oppressive or disproportionate to the circumstances of a particular case etc., is really to challenge the statute and not the judge’s action. It is to say the statute is harsh or oppressive, etc., in its application to an individual. Likewise in the District Court. There a magistrate has a choice whether to impose s. 138 or a minimum penalty. If the magistrate considers that the case does not call for the application of s. 138 he can be challenged on appeal or the defendant may apply for redress under s. 41. The defendant could argue that it was harsh or oppressive that the magistrate did not apply s. 138. To succeed on that argument I consider that the defendant would have to show that the magistrate’s action was harsh or oppressive etc., under s. 41 and that the offence was trivial, or committed under extenuating circumstances etc. under s. 138. I express this view on the relationship between s. 138 of the District Courts Act and s. 41 of the Constitution tentatively as I have not heard argument upon it.

Although s. 41 is not one of the enumerated basic rights contained in the Constitution, but rather an adjunct to them, I consider that it is, nevertheless, a “right” for the purposes of enforcement under s. 57. I have come to the contrary opinion to my brother Kapi Dep. C.J. on this question. Sections 57 and 58 go together. Under s. 57(3) a judge can, inter alia, stop the infringement. Under s. 58 a judge can award damages for the infringement against the Government body concerned and/or against an individual. Where the right infringed is the s. 41 “right”, damages cannot be given against the person responsible if he genuinely believed that the action taken was required by law. To paraphrase that, if the person concerned acted in good faith, he is immune from being mulcted in personal damages. The express mention of s. 41 in s. 58 confirms my view that it is a right or freedom which can be enforced or protected under s. 57.

I would answer the second question asked of us, No.

I conclude with a cautionary tale. In the eighteenth and early nineteenth centuries 200 offences in England carried the death penalty. Its finality and severity were meant to deter. But it was not seriously enforced. Only a small proportion of those who committed capital offences were actually hanged. Public justice was satisfied with a small number of hangings. The rest got off. Ways were found around the death penalty. There was an overstrict law of confessions; a confession made after the offer of a glass of gin, for example, was tainted and so thrown out. After trial and conviction the felon could claim “benefit of clergy”. He need not be a clergyman: if he could read a few lines or be coached to read a few lines he got off. His property was forfeited to the State but he escaped the gallows. Then juries brought in merciful verdicts. In fifteen years in the Old Bailey, London, juries brought in 555 perjured verdicts for break and enter. In all cases the sworn, uncontraverted, evidence was that the property stolen was worth over 40/-. (Burglary of property worth over 40/- carried the death penalty.) In all cases the jury’s verdict was that the property was worth 39/-: Cantor, Crime and Society (1939), at 224. In 1830 in England a petition was presented to Parliament signed by 233 Banking Houses, 36 Joint Stock Banking Companies and 502 individual bankers asking for the abolition of the death penalty for business reasons only. They said that the existence of the death penalty prevented the proper prosecution and conviction of persons stealing from their firms and thus did not protect their property: Cantor, Crime and Society (1939), at 224.

In Papua New Guinea the offenders subject to minimum penalties can so easily evade them. Detection of crime is low. If caught, they can ask for bail, readily get it and abscond. If tried they can pit an experienced defence lawyer against an inexperienced prosecutor and so get acquitted. If convicted and sentenced, they may be released on licence, be given the prerogative of mercy, or simply, escape from our minimum security gaols. Experience in other countries shows that the majority of rapes are not reported. The victim is unwilling to undergo the ordeal of a trial where she will be subjected to a merciless cross examination, and perhaps be disbelieved, whilst the rapist is entitled to and often does, remain silent in court. Moreover in this country many rapes are “settled” out of court by the payment of compensation especially in the Highlands. Often it is only when the offender refuses to pay compensation that the offence is reported to the police. The introduction of a minimum penalty will further reduce the number of rapes reported to the police and prosecuted. The prospect of a ten-year penalty for the rapist, with no reduction for a plea of guilty, will reduce the number of guilty pleas, and will prompt defence counsel to subject the victim to even harsher cross examination. The prospect of a ten-year sentence for the rapist will prompt his family to pressurise the victim and her family to accept compensation and drop the charges. The introduction of the ten-year penalty for rape, paradoxically, will mean that fewer rapists will receive gaol terms, but that those who do, will receive longer terms. The best solution to our soaring crime rate is to improve the certainty of law enforcement rather than to increase the severity of the punishment. As Jeremy Bentham said: “the more certain punishment is, the less severe it need be”: cited in G. Williams, The Proof of Guilt, (London, 1963), at 51.

KAPUTIN J: The Criminal Code (Minimum Penalties) (Amendment) Act 1983 and the Summary Offences (Amendment) Act 1983 have been challenged as unconstitutional in that they offend against the provisions of s. 32(1), s. 36(1) and s. 37 of the Constitution of Papua New Guinea.

The first question referred has already been stated.

Nothing much was submitted in regard to s. 32 and s. 37 except to say that they do enlighten upon the interpretation of s. 36.

Section 36 reads:

“36.    Freedom from inhuman treatment.

(1)      No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

(2)      The killing of a person in circumstances in which Section 35(1)(a) (right to life) does not of itself contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.”

The legislation has been attacked mainly on the basis that the minimum punishments to be imposed are grossly disproportionate to the offences. Looking at s. 36(1), the question of torture is out of the question. We are not dealing here with treatment that in itself would be cruel or otherwise inhuman per se. So I need not waste time addressing this aspect. The main question then is whether the minimum penalty is a treatment or punishment that is cruel or otherwise inhuman or is inconsistent with respect to the inherent dignity of a human person because the penalty would be grossly disproportionate to the offence. It was submitted that in the case of each and every minimum sentence imposed cases can be readily imagined in which the penalty imposed would be totally disproportionate to the offence.

Mr Griffin counsel for the Morobe Provincial Executive concedes that the concept of minimum penalties per se is not unconstitutional. However, he argued that the carte blanche application to all offences and the gross disparity between the gravity of the offences and the penalties can be held unconstitutional; that the present legislation should be held unconstitutional in that the punishments are cruel or otherwise inhuman, or are inconsistent with respect to the inherent dignity of the human person.

To support this contention, Mr Griffin relied heavily on an analogy between Amendment 8 of the Constitution of the United States of America and s. 36(1) of our Constitution. Amendment 8 of the Constitution of the United States of America reads:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”

He argues that there is an obvious similarity between the two provisions.

He quoted a number of American authorities which elucidate on the interpretation of the Eighth Amendment to support his argument. This disproportionality test as to the constitutional validity of statutorily prescribed penalties has been widely accepted in many decisions of the United States District Court. The courts of the United States have variously adopted the following indicia as those which are applicable when an Eighth Amendment argument has been advanced in relation to the nature of punishment prescribed by statute:

(a)      Punishment must not go beyond legitimate penal objectives and must bear a rational relationship to the accomplishment of penological goals which are of sufficient importance to justify its severity;

(b)      Enactments of legislative bodies serve as some index of community standards and values thus giving some indication of a punishment’s general moral acceptability;

(c)      It is necessary to judge the proportionality of a punishment with relation to the actual offence committed: a penalty cannot be justified solely by potential for more serious conduct, even though it may be violent and dangerous;

(d)      The Eighth Amendment requires legislature to make some rational gradations of culpability in determining punishments mandated for criminal offences;

(e)      A punishment is “excessive” and unconstitutional if it:

(i)       makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering;

(ii)      is grossly out of proportion to the severity of the crime;

(f)      A punishment is unconstitutional if it is so manifestly disproportionate to the seriousness of the offence, or is of such a nature that it shocks the conscience and sense of justice;

(g)      To pass scrutiny under the Eighth Amendment a penalty must accord with the dignity of man which is the under-lying concept of the Amendment;

(h)      Courts must not abdicate their role of deciding whether punishment fixed by the legislature contravenes the Eighth Amendment;

(i)       Excessiveness is a hallmark of cruel and unusual punishment prescribed by the Eighth Amendment;

(j)      A punishment is unconstitutional if it is so grossly disparate to the crime committed that it ceases to be rational, and that determination must be made in the light of evolving standards of decency that mark the progress of a maturing society;

(k)      Erratic, freakish and unusual infliction of punishment raises the problem of Eighth Amendment proportions;

(l)       In determining whether punishment imposed under one state law is excessive and constitutes cruel and unusual punishment, the court must compare punishment imposed by corresponding sentencing provisions in other jurisdictions;

(m)     The important factor is not whether the legislative purpose could be served by a less severe punishment, for that is a judgment for the legislature to make, but whether it could be served by a significantly less severe punishment and, if there is a significantly less severe punishment adequate to achieve the purpose for which punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive;

(n)      When a criminal statute provides for punishment thought to be violative of the amendment forbidding cruel and unusual punishment, the constitutionality of the statute itself must be attacked;

(o)      Cruel and unusual punishment can be inflicted by an unconscionable penalty imposed by statute or by the inhumane execution of a permissible penalty imposed under a constitutionally permissible statute;

(p)      The Supreme Court’s admonition that a determination of a particular punishment is excessive should depend upon objective factors to the maximum extent possible;

(q)      Broad and idealistic concepts of dignity, civilised standards, humanity, and decency are useful and useable when determining applicable standards;

(r)      Punishment which is so excessive, unusual, or disproportionate to the offence as to shock the public conscience, that is, the conscience of a reasonable man, is prohibited. In Hart v. Coiner (1973) 483 F. Rep. 2d 136, four elements of constitutional invalidity were defined namely:

(i)       In assessing the nature and gravity of an offence, courts have repeatedly emphasised the element of violence and danger to the person;

(ii)      The legislative purpose behind the punishment must be looked at;

(iii)     The court compared the petitioner’s punishment with how he would have been punished in other jurisdictions, finding it unlikely that he would have received such a sentence elsewhere; and

(iv)     The court examined the punishment available in the same jurisdiction for other offences and determined that the penalties provided for grave crimes of violence in West Virginia reveals the irrationally disparate treatment visited upon the petitioner. The case of The People v. Broadie (1975) 332 N.E. Rep. 2d 338 that the flexible nature of the cruel and unusual punishments clause has engendered re-examination of penalties once thought constitutional, in the light of the evolving standards of decency. In so doing it has come to be recognised that the Constitutional limitation encompasses a cardinal principle of human justice, namely that punishment should be proportioned to the offence for which it is enacted.

I agree with his submission that a punishment that is so manifestly disproportionate to the seriousness of the offence of such a nature that it shocks one’s conscience and sense of justice can be held to be cruel or otherwise inhuman or is inconsistent with respect for the inherent dignity of the human person, and therefore unconstitutional. However the question of disparity which the minimum penalty entails is a question of degree which has to be measured by noble values and principles like those which Mr Griffin has exhaustively referred to.

In my opinion I do not consider that the minimum penalties in question are so disproportionate, unusual, unconscionable, excessive or that they would not contribute to the achievement of the goals of punishment. In fact the range of the minimum penalties are still within the parameters justifiable in a democratic society. It is true that when this legislation was first brought into operation it gave a kind of mixed reaction from the public and especially by those who were misinformed about the principles of punishment and the penalogical goals. However, it did not take long for the mixed reaction to disappear and for the minimum penalties to be acceptable to the community. In my view they would in fact meet the penal objectives and bear the rational relationship to the accomplishment of penalogical goals which are of sufficient importance to justify their severity. And that the range of the minimum punishments can be found in other common law jurisdictions.

It is true that in the past the court had been imposing a moderate range of punishments because the people at that stage were still untutored and uncultured, they were still very much the product of their traditional law and culture, and they could not yet control their violent nature because they could not have yet shaken off the blood lust of ages. Their nature and the traditional impulses and customs that acted upon them and supplied the motive were such an ingrained part of a social system that to them it was not wrong to commit a crime in obedience to that custom. Their mental attitudes were such that they were unable to refrain from committing an offence and fear of punishment could not make them avoid doing so. The moderate punishments were therefore proper, humane and justified at that stage.

However, we have now advanced into the modern era and the people have had the benefit of western civilisation for sometime now. Most of the people are now aware that we have a Government and laws for all the people, that these laws say that it is wrong to commit offences and that offenders have to be punished. So the evolving stage of society has now come where strong penalties have to be levied which would be appropriate to the circumstances, which would not have been otherwise effective and meaningful in the early stages. New phenomena have also arisen as a result of rapid changes in a developing society which create a breeding place for criminal activities.

There is a legitimate need therefore for strong deterrence and for the proper retributive aspect to be taken into account which had never really been accorded its proper consideration in the early stages of societal development. So really there is nothing unusual or unconscionable about the minimum penalties.

The minimum penalties were introduced at a time when the court itself was just beginning to raise penalties above the range imposed in the early stages. Though the court was not really looking at imposing the same penalties as those in the minimum penalties legislation it was certainly looking at something closer to those penalties. So there is this change in attitude based on sentencing principles that has come about to meet the new demands brought about by the changing circumstances of society. What I would see as an unusual and unwarranted penalty and therefore one that could be held to be cruel and otherwise inhuman and therefore unconstitutional would be minimum penalties of around twenty years for those offences under the present minimum penalties legislation. In fact, in the past our range of sentences has been lower than most common law jurisdictions including Australia and the United Kingdom. The minimum penalties we have now are just about the same in relative terms for the offences in question in those common law jurisdictions. The minimum penalty means however, that all the mitigating factors that are normally required as the justice of the case would warrant, will not apply. However, if the gravity of the particular offence requires the court to consider imposing a penalty above the minimum penalty, the question of taking into account the mitigating factors will come into operation again. The question of mitigation does not arise in regard to these offences as to any range of punishment below the minimum penalties.

The position we have in Papua New Guinea however in regard to remissions given to prisoners ameliorates the situation to some extent and so the offenders would not be worse off after all. This can be taken into account as a cushioning effect because remission is part of the overall administration of criminal justice.

In this case the legislature has certainly provided some index of community standards and values thus giving some indication of a general moral acceptability of the minimum penalties legislation. I am not saying that the legislature can always be a better guide in all and every case. In this case however it has provided the representative view of the people.

It is absurd, however, how people think and what their attitudes are in regard to penalties at a particular point of time. For instance, in the early 60s these minimum penalties would have been unheard of. Today it is the public who are calling for very severe penalties for offenders. It is true that when the legislation was introduced it caused ripples in the thinking of people as the top minimum penalties for the most severe offences like rape and robbery with violence were ten years. Some of these penalties would in fact be appropriate today. But most of them would certainly be more appropriate and relevant in three or four years time when society experiences a lot of rapid changes, for the better, but that the side effects of it would create grave breeding environment for criminal activities to be committed in greater latitude. This has been the experience in the evolution of society. And three or four years time is not far off. And rather than wait for that stage to commence such legislation, it is wise to have it now so that when the would-be criminals or people with similar impulses tend to go into such activities they will know that if they are caught they will receive such severe punishment. What I am saying is shown by the fact that a particular legislation may be unconstitutional now but that it may not be in the future when circumstances have changed to warrant the legislation to be held constitutional, as there are certain things like the minimum penalties that are relative in nature.

The minimum penalties are very, very severe of course but they are certainly not outside the range to be considered cruel or otherwise inhuman. The laws are certainly very tough but not necessarily unconstitutional. The best approach to this kind of thinking is to grade the minimum penalties. For instance, a first offender may be given a lower minimum penalty but still severe enough and then maybe a second offender would get double the penalty given to the first offender and then the third offender gets the highest minimum penalty as under the present legislation. At the moment the minimum penalty legislation creates a lot of peripheral injustice. Hence, for instance a young first offender will have to suffer the full blast of the law — obtaining the highest minimum penalty for an offence. We can only hope that the legislature will review the legislation to embody the kind of approach which I have mentioned to avoid peripheral injustices that have been and will be created by the present legislation.

QUESTION 2

A further question has also been asked by those challenging the legislation. Presuming that the legislation is valid, can a person who is convicted of an offence which carries a minimum penalty, apply under the Constitution, s. 41, to declare in the particular circumstances of the case the imposition of the prescribed penalty to be unlawful, and by using s. 57 have a lesser penalty imposed?

Section 41 provides:

“41.    Proscribed acts.

(1)      Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      is harsh or oppressive; or

(b)      is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c)      is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)      The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)      Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”

The section is expressed in wide terms and is said to apply “notwithstanding anything to the contrary in any other provision of any law, to any act that is done under a valid law”. (Emphasis mine.)

After a close look at the purpose of s. 41 I have now come to the view that such power does apply to protection of qualified rights as well as to basic and fundamental rights. And in my view “any act” would include a “judicial act” such as the passing of a mandatory penalty like a minimum sentence which, although valid under the minimum penalties legislation and properly passed by the court, may offend against s. 41 in a particular case.

It has to be interpreted this way as the person receiving a mandatory penalty or a minimum penalty would have no avenue of redress open to him. A person receiving a sentence in a discretionary situation other than a mandatory sentence would have the right of appeal available to him, which is not available to one getting a minimum sentence. Because the power under s. 41 is available, surely a person receiving a minimum penalty can avail himself of it. If s. 41 were not present then the whole picture would have been different in that if a minimum penalty is imposed, that’s it, you are stuck with it. Section 41 provides a controlling mechanism and whatever way we look at it no statutory laws can avoid it. What I have explained strengthens the argument that s. 41 can be invoked by a person receiving a minimum penalty. The view I have taken is sound since it will remove any incongruity in the administration of criminal justice. Our Constitution is unique in that it has so many checks and balances. They were provided for good reasons. One of them we have now just experienced.

The next part of the question is if in a particular case an application under s. 41 succeeds, under what power can the court impose a lesser sentence? I believe that the power under the Constitution, s 57, and s 23(1)(a), can be used for this kind of situation.

“23.    Sanctions.

(1)      Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may:

(a)      impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or

(b)      in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2)      Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3)      Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).” (Emphasis mine.)

In any case s. 41 as a Constitutional provision overrides any statute.

It rests upon the person who calls in aid s. 41 to show on the balance of probability that in his particular case the power under the section should be exercised to remove some grave injustice caused to him.

The powers under s. 41 have been included in the Constitution as a result of experience and common sense. Experience has shown that when a law is made, normally its stringency could lead to some undesirable consequential effects that could not possibly have been envisaged or desired in the first place. And this power which is quite unique in a sense that it was actually embodied in the Constitution is there as a kind of safety-valve which is vital in a democratic society in a sense that everything has to be done according to the democratic values and principles. In fact this very point is brought about by s. 41 (1)(c). Such power I believe however does exist in England, the mother of democracy, but what they do, they find it in the so called unwritten common law and enforce it by the highest Court of the land.

Of course it may appear incongruous that once the minimum penalties legislation has been held constitutional, to call in aid s. 41 would be a backdoor way of invalidating the statute. No, that view is not correct. It simply means that the legislation is still valid but that the act done upon it becomes unlawful by operation of s. 41 for that particular case only; and the specific provision of the legislation upon which the act was taken still remains operative also as a valid part of the legislation itself; and it does not mean either that the unlawful act will go without a remedy. In the case of a criminal matter the general powers under s. 57 and the specific powers under s. 23(1)(a) will come into operation in the circumstances.

I have given s. 41 its fair and liberal meaning as it must be.

“Sch. 1.5       Fair meaning to be given to language used.

(1)      Each Constitutional Law is intended to be read as a whole.

(2)      All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.”

I have also taken account of the aids and guiding principles set out in s. 39 as to how the Constitution should be interpreted.

It is unfortunate that the power was slotted in between the qualified rights provisions. It could have been placed somewhere else in the Constitution as it is not limited to qualified rights only. However one must understand that the division on qualified rights is just a subdivision of the main division on basic rights so it can be read subject to other provisions elsewhere within the main division.

The right of a person to avail himself of the powers under s. 41 comes into existence by virtue of s. 41 itself. It is provided to be used as a check and balance. The whole basis of democracy rests upon such vital powers to control and guide its path. And it would be rather self-defeating if it is to be limited only to the qualified rights or to some non-mandatory matters only.

I answer the questions thus:

(1)      No.

(2)      Yes.

MCDERMOTT J: This Court is asked to rule on the constitutionality of the minimum penalties which courts must now impose as a result of amendments to the Criminal Code (Ch. No. 262) and the Summary Offences Act 1977.

The first question stated cites three (3) sections, Constitution, s. 32(1), s. 36(1), and s. 37(3) in support, — basically that these constitutional guarantees are designed to protect the individual from cruel and inhuman treatment, inter alia, imposed under the proffered justification of the public good, the extra detriments being required because of the prevalence in Papua New Guinea of the crimes concerned. One must be skeptical of the veracity of this claim as, a challenge to duel is a classified minimum penalty offence: s. 74 of the Criminal Code.

Mr Griffin presented a finely tuned argument centred on the Constitution, s. 36(1), — that is the “blanket” operation of the penalties to all offenders irrespective of circumstances means that the punishment can become one which is grossly disproportionate to the offence thus breaching the safeguards of this section and in particular the other mentioned sections of the Constitution generally.

The provisions of the Constitution, s. 36(1): “No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.”, are equated generally in the argument with the Eighth Amendment to the United States’ Constitution:

“Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.”

The disproportionality test which has emerged through a long line of cases arising from the interpretation of this section is called in aid to argue against minimum penalties and it is submitted this test is the proper interpretation of “punishment that is cruel or otherwise inhuman” in the Constitution, s. 36(1).

The section has to be seen in its context — “Division 3 Basic Rights” — “Subdivision B Fundamental Rights” — which are s. 35 (Right to Life), s. 36 (Freedom from Inhuman Treatment) and s. 37 (Protection of the Law). This is followed by “Subdivision C Qualified Rights” in which the liberty of the person (s. 42) and the freedoms, — from forced labour (s. 43), from arbitrary search and entry (s. 44), of expression (s. 46), of assembly and association (s. 47), of employment (s. 48) and of the right to privacy (s. 49) are set out. Then follow rights applicable only to citizens. But these are in quite a different category being qualified by exceptions which are understandable. But even these exceptions are subject to safeguards — the requirements for the legislature to identify its purpose and restrictions (s. 38(2)) and that such are reasonably justifiable in a democratic society (s. 39). Even then there is the added judicial review afforded by s. 41. This involves the second question put to the court.

Section 36(1) is not hedged as I see it by the checks and balances of Subdivision C. It is a fundamental right. Just what sort of right does it confer?

In its historical context, the clause can be traced to the Bill of Rights of 1689. For its true meaning and explanation, the system of Government between 1660-1688 has to be borne in mind.

The Crown, by the use of expedients, made itself and its prerogative the dominant partner in the State. The Crown was able to rely upon and use: (1) the widespread feeling throughout the country in favour of the divine right; (2) the control by the King of the whole machinery of government; (3) the similar control and prerogatives used in the judicial system, hence, the setting of excessive bail, protection of favourites and punishment often being proportioned to the wishes of the Crown rather than to the gravity of the offence; (4) the use of the prerogative powers to suspend and dispense with legislation — done with the judicious help of judges. The Bill of Rights and the Act of Settlement were designed to make it impossible for any future King to rely on such expedients.

In perspective, the individual provisions of the Bill were not all that important. As Holdsworth says in his A History of English Laws vol. VI (1966) reprint, at 232:

“The recent perversions of the judicial prerogatives of the Crown were dealt with by clauses of the Bill of Rights enacting that excessive bail should not for the future be required, that excessive fines should not be imposed, and that jurors should be duly impanelled; and that ‘grants and promises of fines and forfeitures of particular persons before conviction are illegal and void’. But the two most important measures taken to guard against the abuse of the judicial prerogative of the Crown were (a) the Act for regulating trials for high treason, and (b) the clause of the Act of Settlement dealing with the judges’ tenure of office.”

According to Jennings, “The principle implicit in the Bill of Rights of 1689 is the supremacy of the King, but only in Parliament”: see The Law and the Constitution (5th ed.), at 16. Maitland’s presentation of the Declaration of Rights and the Bill of Rights takes the form of being the offences reckoned up against James II. He too, concludes that the revolutionary settlement and, in particular, the Bill of Rights set limits to the very great power which William III was to have: “The King was to be distinctly below statute”: The Constitutional History of England (1920) reprint at 388. In these general histories, the cruel and inhuman punishments of those times received scant attention but it is easy to conclude the rack, the stocks and the lash were common currency. However, Holdsworth does refer to proportionality of punishments, see his History at 214 and the activities of Jeffreys J.

Cruel and inhuman punishments continued to flourish long after this time. Following denials of access to the American colonies, convicts were settled on the eastern seaboard of what is now the Commonwealth of Australia. At first, no one thought the worst, as they would do now, of transportation and its attendant abuses. That change in attitude reflects the change of society. Change in public attitude is an important ingredient in the development of legal attitude, opinion and ultimately the law itself.

In the first flush of revolutionary excitement and enlightenment, one can imagine the United States founding fathers who, looking in vain for constitutional precedents, adopted relevant provisions from the revolutionary settlement of 1689. If one accepts the historical summary in the United States cases, there was little discussion prior to adopting this provision and the same can be said of the adoption of the Constitution, s. 36(1). The very short debate is not helpful and one cannot but think that there is, in the speeches, a little personal payback rather than a general expos‚ of the normal experience and future expectations. The groundwork it seems was done by that small dedicated group which drafted the Constitution.

The Constitution, s. 24(1), allows reference to the Final Report of the Constitutional Planning Committee Report, 12 August 1974 as an aid to constitutional interpretation. The Report recommended s. 8 of the Human Rights Ordinance 1971 that is “No person shall be subjected to torture or to treatment or punishment that is inhuman or degrading”. In fact, all the fundamental rights and freedoms set out in the Ordinance were taken into the Constitution, and in particular, the recommendation on the “Protection from inhuman treatment” adopted the very words of s. 8: see pars 4, 5/1/23. In the general discussion in Ch. 5, the historical development of “Human rights” and more recent developments elsewhere are discussed and, in the Papua New Guinea context, before referring to the enactment of Human Rights Ordinance, is the following;

“We Papua New Guineans are all too familiar with authoritarian Governments, having been ruled by them for almost ninety years. The last years of colonial rule have, of course, been enlightened by world standards, but in earlier times the basic rights and dignity of our people were frequently suppressed or ignored.”: Pars. 7, 5/1/9.

The only other statement occurs when the recommendation to have a constitutional declaration of fundamental rights and freedoms is detailed. On “Protection From Inhuman Treatment”:

“We recommend that the section in the Ordinance which prohibits torture, and treatment or punishment that is cruel, inhuman or degrading, be incorporated in this chapter of the Constitution. Some of our people are well aware of instances of torture and other inhuman treatment which has been meted out by successive colonial administrations, and in traditional society also. We firmly believe that these practices should be specifically outlawed in the Constitution.”

Thus historically, there is this concept of freedom from inhuman treatment which was put before a new King in 1689, taken into the United States Constitution in 1791 and with modification taken into this country’s Constitution in 1975. What is the meaning to be ascribed to it in 1984?

Both the Bill of Rights and the meaning of cruel and unusual punishment was discussed in Weems v. United States [1910] USSC 127; 217 US 349 (1910), an appeal to the U.S. Supreme Court from a judgment of the Supreme Court of the Philippine Islands which were then under U.S. jurisdiction. The appellant, a government official, had been convicted of a false entry in a book of account. As the trial court said: “It is not necessary that there be any fraud nor even the desire to defraud, nor intention of personal gain on the part of the person committing it, that a falsification of a public document be punishable; it is sufficient that the one who committed it had the intention to pervert the truth and falsify the document, and that by it damage might result to a third party”. In many cases, the facts giving rise to important decisions do not matter, but the relatively trivial offence of Mr Weems without any element of aggravation should be remembered, — the similarity with trivial minimum penalty offenders in this country is obvious.

For his offence, poor Weems faced the rigors of the Penal Code of Spain still applying in the Philippines. He was subjected to a minimum penalty (in fact he got more): fifteen years of hard and painful labour, plus a fine, plus “accessories” which effectively amounted to a perpetual limitation of liberty after release. The Code existed side by side with the new administration’s Bill of Rights copied from the original in the United States Constitution. The stated ground of appeal was: “The punishment of fifteen years imprisonment was a cruel and unusual punishment, and, to the extent of the sentence, the judgment below should be reversed on this ground.”

The majority decision is built on a precept of justice that punishment for crime should be graduated and proportioned to the offence and this is equated with the fundamental law, that is the constitutional provision prohibiting the infliction of cruel and unusual punishment. A number of earlier authorities are cited in support of a wide construction being given to the words. At 799 and 800 of the report, the following extracts appear:

(1)      “The court, however, in that case conceded the possibility that punishment in the state prison for a long term of years might be so disproportionate to the offence as to constitute a cruel and unusual punishment.”

(2)      “This court’s final commentary was that difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture,... and all others in the same line as unnecessary cruelty are forbidden by that amendment to the Constitution.”

(3)      “The 8th Amendment inhibition was directed not only against punishments which inflict torture, but against all punishments which, by their excessive length or severity are greatly disproportionated to the offences charged. ... The whole inhibition is against that which is excessive in the bail required or fine imposed or punishment inflicted.”

See respectively McDonald v. Commonwealth 53 NE 874; 173 Mass 322 (1899); Wilkerson v. Utah [1878] USSC 201; 99 US 130 (1878); 25 L Ed 345 and O’Neill v. Vermont [1892] USSC 112; 144 US 323 (1892), 36 L Ed 450 in which the passage cited was the minority view of Field J.

The majority in Weems took this up and gave a wide meaning to the provision because:

“... a principle, to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions. They are not ephemeral enactments designed to meet passing occasions. They are to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it’. The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. Under any other rule a constitution would indeed be as easy of an application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction”, (at 801).

It was fully recognized that the punishment in question was foreign to Americans but even if it was not, it would have been bad. Hobbs v. State 133 Ind. 404 18 L.R.A. 774 32 N.E. 1019 was particularly mentioned. I refer to it for the very same reasons. A narrow construction, indeed a query if the constitutional provision was, at the end of the nineteenth century, obsolete, was ventured. That case gave prominence to the power of the legislature to define crime and punishment. This was accepted by the majority in Weems at 803:

“We concede the power in most of its exercises. We disclaim the right to assert a judgment against that of the legislature, of the expediency of the laws, or the right to oppose the judicial power to the legislative power to define crimes and fix their punishments, unless that power encounters in its exercise a constitutional prohibition. In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction is revoked. Then the legislative power is brought to the judgment of a power superior to it for the instant.”

In a strong dissenting judgment, White J. could not accept this interpretation. He voices a concern at 807 that such an interpretation:

“... does not simply cause the cruel and unusual punishment clause to carve out of the domain of legislative authority the power to resort to prohibited kinds of punishments, but subjects to judicial control the degree of severity with which authorized modes of punishment may be inflicted, it seems to me that the demonstration is conclusive that nothing will be left of the independent legislative power to punish and define crime, if the interpretation now made be pushed in future application to its logical conclusion.”

I just cannot see his fear that by extending the prohibition against cruel bodily punishments, the legislative discretion of prescribing punishment for crime by certain modes and methods is limited by stretching constitutional rights in a way which could never have been intended. The Shorter Oxford Dictionary shows the breadth of meaning of cruel: “disposed to inflict suffering, indifferent to or taking pleasure in another’s pain; merciless, pitiless, hardhearted, painful, distressing”, and of inhuman (actions): “Brutal, barbarous, cruel”. What is wrong with accepting the words in this way? Is the continuing development of human attitudes and concepts also to be ignored?

The United States Supreme Court has travelled further in developing the Weems view. The provision was considered in Tropp v. Dulles [1958] USSC 57; 356 US 86 (1958); 2 L Ed 630, where it was called in aid against the denial of a passport based on a prior court martial conviction. The Chief Justice with three justices concurring said at 642:

“The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688 and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime but any technique outside the bounds of these traditional penalties is constitutionally suspect. ... The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

This theme was expanded in Furman v. Georgia [1972] USSC 170; 408 U.S. 238 by Brennan J. at 367-372, who noted four principles in examining a challenged punishment vis-à-vis human dignity that is:

(1)      A punishment must not be so severe as to be degrading to the dignity of human beings.

(2)      The State must not arbitrarily inflict a severe punishment.

(3)      A severe punishment must not be unacceptable to contemporary society.

(4)      A severe punishment must not be excessive.

On these principles he elaborated further, even the “vilest criminal remains a human being possessed of common human dignity” and therefore should be treated as such. Human dignity is not respected if the State without reason inflicts on some people a severe punishment. The history of a punishment and society’s present practices with respect to its use must be looked at. At 372:

“Legislative authorisation, of course, does not establish acceptance. The acceptability of a severe punishment is measured not by its availability, for it, might become so offensive to society as never to be inflicted by its use.”

Excessiveness is equated with the punishment being unnecessary that is disproportionate to the crime and, more significantly, because such a punishment would not serve any penal purpose more effectively than a less severe punishment.

Brennan J. sees the principles as interrelated but this is not absolute.

“... in most cases it will be their convergence that will justify the conclusion that a punishment is ‘cruel and unusual’. The test, then, will ordinarily be a cumulative one.” Furman at 374.

In the same case, White J. accepted the fourth principle when he said at 391 that the excessiveness of the punishment in question (the death penalty) would be:

“... pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Marshall J. following gave four reasons why a punishment may be deemed cruel and unusual, at 402-403:

(1)      Certain punishments inherently involve so much physical pain and suffering that they are intolerable to civilised people.

(2)      Previously unknown penalties inflicted for offences could be unusual.

(3)      A penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose, i.e. unnecessary.

(4)      A punishment if not excessive and with a valid legislative purpose can still be invalid if popular sentiment abhors it.

These are obviously not cumulative considerations. In summary, what Furman says is:

“The high service rendered by the ‘cruel and unusual’ punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are even-handed, non-selective and non-arbitrary ....” Douglas J. at 359.

What the challenged legislation here effectively does is treat all offences as equally reprehensible up to an arbitrarily set level of punishment. It is only when above that level can the punishment be proportioned to the offence. In many cases, the minimum level of punishment is simply not called for. This crudely applied, across-the-board, approach denies to the person being punished any consideration of the following factors:

(1)      the degree of participation: Secretary for Law v. Kaibug Jimbun & Anor [1976] P.N.G.L.R. 288;

(2)      the degree of ignorance of the law: Ulao Amentasi v. Secretary for Law [1975] P.N.G.L.R. 134;

(3)      the age of the offender: see Passingan v. Beaton [1971-1972] P.&N.G.L.R. 206;

(4)      that the offender is a first offender: Kondan Kale v. The State (Unreported Supreme Court judgment No. SC250, dated 8 June 1983);

(5)      the offender’s previous good record: Kondan Kale;

(6)      restitution;

(7)      the offender’s physical and mental condition: R. v. Kocan [1966] 2 N.S.W.R. 565;

(8)      the remorse;

(9)      the assistance given to police: R. v. McGrath [1971-1972] P.&N.G.L.R. 247;

(10)    plea of guilty by offender: McGrath;

(11)    aggravation offered by victim or provocation not amounting to an offence: Ure Hane v. The State [1984] P.N.G.L.R. 105;

(12)    the effect of the gaol term on offender’s family;

(13)    the effect of a gaol term on offender’s job, education or income: Agiru Aieni v. Tahain [1978] P.N.G.L.R. 37;

(14)    the technical nature of the offence;

(15)    the customary punishment received or compensation paid to the victim: Acting Public Prosecutor v. Nitak Mangilonde Taganis [1982] P.N.G.L.R. 299;

(16)    the prevalence of the offence.

The criminal cases are full of instances where one or more of these factors have been held relevant in sentencing offenders.

Likewise, the amendments in applying minimum terms of imprisonment carte blanche preclude considerations being given to (a) probation; (b) relatively minor fines; (c) relatively minor terms of imprisonment; (d) the entering into of recognisances; or (e) conditional discharge, for what must be on any view minor offences in many instances, for example assault, unlawfully on premises, unlawfully disturbing householders, breaking glass in a public area, or negligent driving. The legislature has been insistent upon this denial. The speed with which the Criminal Code (Amendment) Act 1983 was passed is testimony of the no-proportionality view. Whilst writing this judgment, a colleague referred me to Lord Holland’s speech to the House of Lords in 1800 on the prolonging of a hasty emergency law known as the Army and Navy Seduction Act. The remarks seem appropriate 185 years later.

“The original bill was passed in a moment of danger and of alarm, at a moment when the legislature thought it necessary to impress persons in an actual state of mutiny, and those who, by such proceedings, might be agitated with various and uncertain feelings and apprehensions, with a conviction of their firmness and determination ... I do not censure them for want of accurate investigation of the true principles of penal laws at that moment, though I certainly cannot pay them the compliment of pretending to have found, in this offspring of momentary passions, those traces of deliberative wisdom which would alone justify its becoming a permanent law;... These laws ... made on the spur of the occasion, are generally to be attributed to the want of deliberation, to the want of a serious attention to the fundamental principles on which all punishments ought to be established. It is said, good laws have been made on the spur of the occasion. I believe there may have been some, perhaps many; but of penal laws, I believe, very few. I felt almost disposed to say none. But this I know, that almost all bad, wicked, and cruel penal laws have been made on that pretence, and hurried on with a precipitation utterly incompatible with prudence, moderation, or justice. Of all laws, they are those which should be most scrupulously cut down and squard [sic] to the rule of uniform and invariable principle. They are those where a deviation from principle leads to the most pernicious consequences, and tends to the defeat of their own object with the most certainty.”

See Radzinowicz, A History of English Criminal Law, vol. 1 Second Impression (1969) at 16. One wonders what the public good of mandatory imprisonment is. The country already “has one of highest imprisonment rates in this part of the world”: see at 286 Report of Committee to Review Policy and Administration on Crime, Law and Order. That the prison system cannot cope is evidenced by the early release on license of 1474 prisoners, see National Gazette, G38 and G39 of 7, 14 June 1984. Included was one prisoner, the leniency of whose sentence was to be reviewed by this Court.

Many other U.S. cases have been cited: Stevens v. Warden, Maryland Penitentiary, [1967] USCA4 478; 382 F 2d 429; Willoughby v. Phend 302 V. Supp. 644; United States v. Dawson [1969] USCA2 38; 400 F 2d 194; Bethea v. Crouse [1969] USCA10 223; 417 F 2d 504; Jackson v. Bishop [1968] USCA8 253; 404 F 2d 571; Hart v. Coiner 483 F 2d 510 and Imprisoned Citizens Union v. Shapp 451 F. Supp. 893 (1978). A wide spectrum of offences and punishments is thus covered. The viability of the Eighth Amendment as interpreted in Weems continues. It is particularly seen in The People v. Broadie which dealt with the ever increasing drug related offences, where it was said at 351:

“The flexible nature of the cruel and unusual punishment clause has engendered re-examination of penalties once thought constitutional, in light of the ‘evolving standards of decency’. In so doing it has come to be recognised that the constitutional limitation encompasses a cardinal principle of ‘humane justice’, namely, that punishment should be proportioned to the offence for which it is exacted.”

There is thus much force in the submission that when the Tropp v. Dulles statement, is linked with the ratio of Weems and Furman and these further cases, the minimum penalty legislation here is inherently unreasonable and Draconian.

Of course, none of these authorities are binding on this Court, but they are worthy of respect and notice, coming from a nation which, like this one, began so bravely by constituting itself on the basis that certain fundamental rights were to apply to all citizens.

What makes a wider interpretation available here also stems from the disjunctive use of the operative words.

“... To torture ... or to treatment that is cruel or otherwise inhuman or inconsistent with respect for the inherent dignity of the human person.”

The United States cases have widened the meaning of cruel by developing the concept of the dignity of the human person. How much more relevant then those cases become when the requirement to respect the inherent dignity of the human person is expressly so stated in s. 36(1).

Reference has been made to Art. 3 of the European Convention on Human Rights:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

On its face it appears narrower than both the Eighth Amendment and s. 36(1). I only refer to it as it was the subject of proceedings in the European Court of Human Rights and is a matter which can be considered: see the Constitution, s. 39(3)(e). In Tyler v. United Kingdom [1978] ECHR 2; (1978) 2 E.H.R.R. 1, Zehia J. at 109 spoke of the need to apply both an objective and subjective test in looking at a challenged punishment. In that case, the birching of a juvenile offended the convention.

There is a great deal of subjectivity involved with sentencing an offender for a minimum penalty crime. Unlike a judge of the United States Supreme Court, I also sit as a judge of the National Court as circuit judge in the first instance. What is cruel or inhuman becomes, not a matter of cold speculation or impersonal inquiry from a distance, it is something very real. The offender to be dealt with stands before you. When the punishment to be applied is out of all proportion to the offence because one or more of the factors to which I have alluded must be disregarded, the resulting cruelty or inhumanity does not need definition, it becomes the fact.

This Court by the Constitution, s. 18(1), has original jurisdiction to interpret the Constitution. The fetters on the legislature come from the Constitution as judicially interpreted according to law. Historically, the subject provision is significant. Its significance through judicial interpretation has been maintained in a way meaningful in the twentieth century. It cannot truthfully be said that s. 36(1) is a statement against colonial excesses only, rather it seems to me an adoption of a right of wide import, meaning and development. I fail to see why the citizens of this country who after adopting, what was hoped to be a comprehensive constitution, should not have the benefit of this evolving concept. The Constitution, Sch. 1.5(2), requires “words, expressions and propositions” to be given their “fair and liberal meaning”.

I accept the submission that in the case of each and every one of the minimum sentences imposed by the Criminal Code (Minimum Penalties) (Amendment) Act 1983, the Summary Offences (Amendment) Act 1983, and the Criminal Code (Amendment) Act 1983, situations can readily be imagined in which the penalty imposed would be wholly disproportionate to the offence. Therefore, for this reason, I cannot see how these acts can pass the test set by the Constitution s. 36(1).

Ms Doherty has at the court’s invitation asked a further question, which has to presume the validity of the challenged legislation. The gist of the question is: when a person is convicted of an offence which carries a minimum penalty, can the Constitution, s. 41, be then called in aid for a lesser penalty, using the Constitution, s. 57, if in the particular circumstances the prescribed penalty would be harsh or oppressive or not warranted or disproportionate in the circumstances of that particular case. It rests upon the person who calls in aid the section to show on the balance of probability its application: s. 41(2).

Section 41 is expressed in wide terms and is said to apply “notwithstanding anything to the contrary in any other provision of any law, to any act that is done under a valid law”. I start by asking to what does the section apply? At first glance, I considered it applicable to situations covered by legislation enacted under the Constitution, s. 38 and s. 40, but I can now see, persuaded by all counsel, that it is not so confined. The section appears in the “general” provisions relating to constitutional rights which can be qualified. That is where I perceive the limitations of the section to be.

There was no Constituent Assembly debate on s. 41 so the planning committee’s report is again a most useful aid to interpretation, but with this proviso: what appears in the committee’s recommendation does not appear to be what finally emerged in the Constitution. The committee recommended fifteen fundamental rights and freedoms (vis-à-vis 11 in the Human Rights Ordinance 1971), all of which were accepted, and subdivided into “fundamental” and “qualified” rights, the later being further subdivided into rights of general application and rights applicable to citizens only. This subdivision is logical. In its report, the committee expresses first a wider view (the discussion) and then a narrower view (the recommendation) on the enforcement of rights and freedoms, both under the heading Action under valid law is invalid if excessive or oppressive. The two views are:

First at 5/1/20:

“120.   We recommend that to provide a safeguard against abuse of or excessive use of a legal power provided for it in this Part, (Human Rights and Obligations) any action which is excessive or oppressive in the actual circumstances of the case should be unlawful. Interpreting legislative provisions of this kind is not new to the courts.”

Second at 5/1/33:

“19.    Notwithstanding the validity under the provisions of this chapter (Human Rights and Obligations) of a law under which any person is arrested, detained, questioned or searched, or his property entered upon or searched, action taken under that law for any of these purposes shall be unlawful in so far as the force used or the conduct of the persons taking the action is excessive or oppressive in the actual circumstances of the case.”

It would seem this recommendation limited redress to a breach of the rights of protection of personal liberty and against arbitrary search or entry. But in implementation, the wide terms used in the report are reflected in s. 41 and not the latter recommendation. Therefore, under the heading Subdivn C: Qualified Rights, appears s. 41.

“(1)    Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      is harsh or oppressive” etc.

It is not unreasonable to expect some future limitation under valid laws of these qualified rights — limitations forced by an emergency situation or limitations which from time to time become necessary and are reasonably justifiable in a democratic society. But the section also applies to fundamental rights as well for the following reason. The Constitution, s. 233, sets out what rights cannot be interfered with in an emergency. However, one fundamental right, s. 37, the protection of the law, can be qualified in an emergency. Because of this, and because of the scheme and sequence of the sections 38, 39, 40 and then 41, the benefit which comes from s. 41 is that it provides a constitutional form of redress when a law of general application, and actions taken in pursuance of it, imposes limitations which in a particular case could be harsh, oppressive, unwarranted or disproportionate in the circumstances. In my view, the section must be viewed in its context — a general provision relating to constitutional rights. The section was referred to in Premdas v. Independent State of Papua New Guinea [1979] P.N.G.L.R. 329. Because of what I have just said, I find myself unable to agree with Prentice C.J. when he said at 344:

“I find difficulty in understanding why such a novel power should be restricted to the protection of qualified rights and not apply to basic and fundamental rights as well. ... The body of s. 41 itself contains no reference at all to its being restricted to the support of ‘rights’.”

I do agree that the criteria in the section are questions of fact and an objective test should be applied when they are assessed. Little attention was given to the full impact of the section by the other judges who assumed it to be applicable, but there appears to have been no major argument on this aspect. In my view, Dr Premdas simply could not bring himself within the protection afforded by any of the rights in ss 35-37 which were not in jeopardy. The protective right relating to deportation, s. 52(2), is restricted to citizens.

Following from this then, it can be seen that a person subjected to a minimum term of imprisonment is deprived of one of his qualified rights — he is deprived of his liberty:

“... in the execution of the sentence or order of a court in respect of an offence for which he has been found guilty ...”: s. 42(b).

For an indictable offence, the challenged legislation takes away the discretion that is below a set minimum term of imprisonment given to the National Court under s. 596 of the Criminal Code (Ch. No. 262). A sentence automatically follows conviction. A sentence must be imposed. There is still some discretion left in simple offence cases in the District Court when the court does not proceed to a conviction: s. 138 of the District Court Act 1963 as amended.

Is the “act” of sentencing within the class of “any act that is done under a valid law”? From the interpretation rules (Sch. 1), “act” is not an Act of the Parliament but “act” includes omission and failure to act. Ms Doherty submits such an act or actions can arise from the minimum penalty legislation that is the act of sentencing. Mr Kaipu submits it applies to an act of an executive and administrative nature but not to a judicial act, whilst Mr Byrne says the section is designed to redress abuse and an excess of power committed by any person of authority and the “act” in question can be as wide as can be but regard must be had to what is said in the section.

In giving sentence, the judge is giving the judgment or decision of the court. Under the challenged legislation, he is pronouncing what is mandatory under a valid law. If this sentence can be labelled an “act”, it is one devoid of choice. To make any sense of an “act” in s. 41, it seems to me that the doer has to have some room for manoeuvre, in other words, he has a choice in giving effect to a valid law. There is some room for the exercise of a discretion. Sentence has long been held to be an exercise of the judicial discretion with imposed statutory limitations. But a wrong exercise of the sentencing discretion has always been appellative. It is in the area of administrative law, where the exercise of executive discretion is often difficult to challenge, that the operation of the section may have more scope. It is not hard to visualise a whole range of executive decisions which could impinge upon rights enshrined in the Constitution. The machinery to enable redress already exists — the National and Supreme Courts have power to make orders in the nature of prerogative writs (Constitution, s. 155(4)), a traditional way of inquiring into administrative actions. As well there is the newer remedy in the form of a declaratory order available, provision for which is made in the National Court Rules. But, the difficulty has always been in getting a cause of action if you like, to establish the basis on which to bring one of these actions. Access to the courts has been fairly limited in this area. I consider s. 41 wittingly or unwittingly remedies that — it supplies a right of action which may well have been unavailable by the pre-existing law. Elsewhere, the defect has been remedied by legislative action — witness the subsequent growth of and popularity of the Administrative Appeals Tribunal in Australia. I conclude that for this country, such a development is already contained within the Constitution, s. 41.

Indeed, it seems this was envisaged by the planning committee.

“Our purpose here is to ensure that the opportunity to raise human rights issues should not be stifled by being confined to the somewhat rarified atmosphere of the highest court in the land ... People should be able to complain of a breach of a human right and have that complaint judicially decided without undue difficulty.”: pars. 116, 5/1/19.

In my view, from the conception, content and context of s. 41, it applies to discretionary acts affecting constitutional rights which can be qualified.

Finally, does s. 41 provide a basis to challenge a minimum penalty?

There is simply no discretionary act involved when a court gives a minimum penalty. All the considerations in s. 41(1) are removed below a set minimum. But in any case, these provisions are really another way of setting out the existing considerations given by a court before passing sentence. I have set them out fairly exhaustively in answering the first question. Section 41 is not aimed at constitutionally restating the law on sentencing.

In my view, it is an unwarranted and illogical exercise to say on the one hand minimum penalties are valid and then on the other to say they interfere with the sentencing discretion. You can not have it both ways. The very basis on which you seek relief under s. 41 has been removed.

I answer the questions thus:

(1)      Yes, in as much as it relates to s. 36(1).

(2)      No.

Questions answered.

Question (1) No.

Question (2) No.

Lawyer for the Provincial Government: T .Doherty.

Lawyer for the Principal Legal Adviser: T. Konilio, Principal Legal Adviser.

Lawyer for the Public Prosecutor: L. Gavara Nanu, Public Prosecutor.