Enforcement of Basic Human Rights, In re [2014] PGNC 319; N5540 (28 March 2014)

N5540

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HROI NO 2 OF 2013

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER THE CONSTITUTION OF
THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

RE ALLEGED BRUTAL TREATMENT OF SUSPECTS
REPORTED IN THE NATIONAL NEWSPAPER, 28.05.13, PAGE 4

Waigani: Cannings J
2014: 26, 28 March

HUMAN RIGHTS – Constitution, Section 57(1) (enforcement of guaranteed rights and freedoms) – power and duty of National Court to inquire into and protect and enforce guaranteed rights and freedoms – Constitution, Section 57(3): National Court may make all such orders and declarations as are necessary or appropriate for the purposes of Section 57.

The National Court published a judgment in the form of a report of its inquiry into allegations of human rights violations against members of the Police Force. The Court declared that the allegations were extremely serious and genuine, named the members of the Police Force implicated, declared that the steps taken by the Police Force were woefully inadequate and the steps taken by the Public Solicitor were barely adequate and ordered that the inquiry would continue and that the Commissioner of Police, the Metropolitan Police Commander for the National Capital District and the Public Solicitor were summoned to personally appear to address remaining issues. Those three office-holders appeared and gave sworn evidence. The Court reserved judgment on the question of whether further orders and declarations should be made.

Held:

(1) The Court should only conclude an inquiry of this nature when it is satisfied that the responses of those whose responsibility it is to inquire into allegations of human rights violations and protect and enforce human rights are fully adequate.

(2) The Court remained unsatisfied that the responses of the Commissioner of Police, the Metropolitan Police Commander and the Public Solicitor to the issues on which each was required to address the Court were fully adequate, which meant that the inquiry must continue.

(3) Each office-holder was again summoned to appear in Court but this time would be subject to an additional order, that an affidavit be filed and served five days before their next appearance, stating in detail and corroborated by supporting documents their responses to the Court's requisitions.

Case cited

The following case is cited in the judgment:

Re Alleged Brutal Treatment of Suspects (2014) N5512

INQUIRY

This was the continuation of an inquiry by the National Court under Section 57 of the Constitution.

Counsel

E Wurr, for "the suspects" and the Public Solicitor
N Miviri, for the Police

28th March, 2014

1. CANNINGS J: These are my reasons for making further orders concerning this inquiry into alleged human rights violations committed by members of the Police Force.

THE JUDGMENT OF 26 FEBRUARY 2014

2. I recently published a judgment in the form of a report of the inquiry (Re Alleged Brutal Treatment of Suspects (2014) N5512). I declared that the allegations arising from the incident at Jackson's Airport, Seven Mile, National Capital District on Sunday 26 May 2013 were extremely serious and genuine. It was alleged that a group of 74 men, mainly from Morobe Province, were intercepted by the Police, directed to lie face down on the ground, and that after those men did as they were told, members of the Police Force assaulted them by kicking and hitting them with weapons such as gun butts and tree branches and that some Police used bush knives to cut the men, mainly on the lower part of their legs: the ankles and Achilles tendons being targeted.

3. I named seven members of the Police Force as being implicated and declared that the steps taken by the Police Force were woefully inadequate and the steps taken by the Public Solicitor were barely adequate. I ordered that the inquiry would continue. The Commissioner of Police, the Metropolitan Police Commander for the National Capital District and the Public Solicitor were summoned to personally appear before the Court to address the issues shown in the following table.

No	Person	Issues to be addressed
1	Mr Toami Kulunga, Commissioner of Police	(a) Response to criticism of the Court in its judgment. (b) What steps has he taken since the date of judgment to ensure that the members of the Police Force implicated in the allegations are dealt with appropriately?
2	Supt Andy Bawa, Metropolitan Commander, NCD	(a) Response to criticism of the Court in its judgment. (b) What steps has he taken since the date of judgment to ensure that the members of the Police Force implicated in the allegations are dealt with appropriately? (c) What is the status of criminal proceedings against members of the Police Force who have been implicated? (d) What is the status of disciplinary proceedings against members of the Police Force who have been implicated?
3	Mr Frazer Pitpit, Public Solicitor	(a) Response to criticism of the Court in its judgment. (b) Does he have a current practising certificate? If not, why not? (c) What steps has he taken since the date of judgment to ensure that the proposed civil proceedings have been commenced? (d) What is the status of the civil proceedings? Have such proceedings been commenced?

APPEARANCES BY THREE KEY OFFICE-HOLDERS

4. They appeared on 26 March 2014 and gave sworn evidence.

5. The Commissioner of Police, Mr Toami Kulunga, said that he was shocked and disgusted by the allegations and that he could not imagine how any decent human beings could do such things to others. He believes that most members of the Force implicated are probationary constables who have recently graduated from Bomana Police College and that this case has shown that there are major flaws in the recruitment system. He has expressed his disgust to senior members of the Force. Internal investigations are continuing. However he understands that identification of the members who committed the human rights abuses is a major obstacle in the investigation.

6. The Metropolitan Commander, Supt Andy Bawa, testified that two members of the Force, Const Hilary Weni and Const Steven Siskii, have each been charged with 44 counts of armed robbery and 31 counts of unlawful wounding. A minute to Supt Bawa from A/Det Supt J Salle, dated 25 March 2014, suggests that both have been committed for trial in the National Court. Another member is suspected of involvement but a decision has been made to use him as a State witness. Investigations are continuing.

7. The Public Solicitor, Mr Frazer Pitpit, agreed that he did not have a practising certificate and said that he had not had one for the last four years. This was due to the failure of the Auditor-General to audit his trust account. He has engaged a former Auditor-General, Mr George Sulliman, to assist in auditing the accounts. He has instructed the officers of his Finance and Administration Division to ensure that their records are in order, failing which they will be subject to disciplinary action. Asked for his response to the criticism offered by the Court of his lack of attention to the allegations at the centre of this inquiry, Mr Pitpit replied that he had not sighted the judgment.

ASSESSMENT OF EVIDENCE

8. I am unimpressed by the evidence of all three office-holders. The Commissioner's evidence was vague and did not demonstrate any detailed knowledge of this case.

9. Supt Bawa's evidence was less unconvincing but he was unable to explain why, 10 months after this very serious incident, only two members of the Force have been charged under the Criminal Code. And the Court still has no documentary proof of the charges and their progress. There continues to be tough talk about clamping down on Police brutality but where is the evidence of the charges and the claim that two members of the Force have been committed for trial? Where is the documentary evidence that members have been charged for serious disciplinary offences under the Police Act? The Court is again being fed vague assurances that the matter is being treated seriously and that "investigations are continuing". There is evidence before the Court that very senior members of the Force including the Gordon Police Station Commander, Snr Insp John Tarur, were present at the incident. Why does it take ten months to investigate serious human rights violations committed on a mass scale in an open public place next to the country's biggest airport?

10. I was flabbergasted to hear the Public Solicitor say, after being summoned to the Court to address issues concerning his performance as Public Solicitor, which have been set out in some detail in the judgment of 26 February 2014, that he has not read the judgment. That was a disappointing response.

COURT NOT SATISFIED

11. The Court should only conclude an inquiry of this nature when it is satisfied that the responses of those whose responsibility it is to inquire into allegations of human rights violations and protect and enforce human rights are fully adequate.

12. I remain unsatisfied that the responses of the Commissioner of Police, the Metropolitan Police Commander and the Public Solicitor to the issues on which each was required to address the Court were fully adequate. Therefore this inquiry must continue.

13. I will again summon each of those three key office-holders to appear in Court. But this time there will be an additional requirement. I will order that each of them file an affidavit, to be served five days before their next appearance, stating in detail and corroborated by supporting documents their responses to the Court's requisitions. I am conscious of the demands that the Court is placing on such senior office-holders. However, until I am convinced that each is giving this matter the attention it deserves and that enforcement of human rights is placed amongst their top operational priorities, I will persist with this inquiry. I remind all concerned what is stated, at pages 34 to 36 of the judgment of 26 February 2014, on the subject of "SANCTIONS".

DECLARATIONS AND ORDERS

14. It is declared and ordered, pursuant to Sections 22, 23(2), 57(3) and 155(4) of the Constitution, as follows:

(1) The Court remains unsatisfied that the responses of the Commissioner of Police, the Metropolitan Police Commander for the National Capital District and the Public Solicitor to the allegations of human rights violations is fully adequate.

(2) It is ordered that this inquiry will continue and the persons named in the Schedule are:

• (a) required to depose in detail in an affidavit as to each of the issues set out in the Schedule; and
  
• (b) summoned to personally appear before the Court at its next hearing to give oral testimony on the issues set out in the Schedule and be subject to cross-examination and the scrutiny of the Court on such issues.
  

(3) The date by which the affidavits referred to in (2)(a) are to be filed and served is five days before the hearing referred to in (2)(b), the date, time and place of which will be set in consultation with the persons named in the Schedule.

SCHEDULE

No	Person summoned	Issues to be addressed
1	Mr Toami Kulunga, Commissioner of Police	What steps has he taken since the date of judgment to ensure that the members of the Police Force implicated in the allegations are dealt with appropriately? (Documentary evidence of such steps to be provided.)
2	Supt Andy Bawa, Metropolitan Commander, NCD	(a) What steps has he taken since the date of judgment to ensure that the members of the Police Force implicated in the allegations are dealt with appropriately? (Documentary evidence to be provided.) (b) What is the status of criminal proceedings against members of the Police Force who have been implicated? (Documentary evidence to be provided, including copies of informations.) (c) What is the status of disciplinary proceedings against members of the Police Force who have been implicated? (Documentary evidence to be provided.)
3	Mr Frazer Pitpit, Public Solicitor	(a) What steps has he taken since the date of judgment to ensure that he obtains a practising certificate? (Documentary evidence to be provided.) (b) What is the status of the civil proceedings? Have such proceedings been commenced? (Documentary evidence to be provided.)

Judgment accordingly.
_________________________________________________________

Public Solicitor: Lawyer for the suspects & Public Solicitor
Chief Supt Nicholas Miviri: Lawyer for the Police Force & its members