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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 79 OF 2018
BETWEEN
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Appellant
AND
KENNETH KUNDA SIUNE
Respondent
Waigani: Kandakasi DCJ, Thompson and Berrigan JJ
2020: 30th September
2021: 04th February
DECISION ON APPEAL
APPEALS – Appeal against order for early release of prisoner – Human Rights application – enforcement under s 57 for breaches of ss 36 and 37 of Constitution – nature and scope of powers under s 57 and proper application of - Human rights court not a court of unlimited jurisdiction - no right to revisit sentence – no power to order early release from prison.
Facts
The State appealed against a decision of the National Court sitting as the Human Rights Court which ordered the early release on medical grounds of a prisoner serving his sentence. The prisoner had been convicted and was serving an effective sentence of 24 years for serious violent offences of murder, armed robbery, arson and deprivation of the liberty of the victims of his offences, committed in the company of others. Additionally, he had been convicted of possession of a dangerous drug whilst in prison.
Held:
By the Court:
Cases Cited:
Papua New Guinea Cases
Inakambi Singorom v. John Kalaut [1985] PNGLR 238.
Reference by the East Sepik Provincial Executive (2011) SC1154.
Reference pursuant to Constitution, Section 18(2) Re Jurisdiction of the Leadership Tribunal (2019) SC1852.
Special Reference pursuant to Constitution s19(1) Special Reference by the Ombudsman Commission of PNG (2019) SC1879.
William Hagahuno v. Johnson Tuke & Electoral Commission of PNG (2020) SC2018.
Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329.
Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea & Ors [1981] PNGLR 396.
Koang No. 47 Ltd v. Mondo Merchants Ltd and Melpa Properties Limited (2001) SC 675.
Belden Norman Namah v. Rimbink Pato (2016) SC1497.
Behrouz Boochani v. The State (2017) SC1566.
The State v. Transferees (2015) SC1451.
Constitutional Reference No. 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362.
Gregory Puli Manda v. Yatala Ltd (2009) SC974.
Buni Morua & 79 Others v. China Harbour Engineering Company Ltd (2020) N8188
Uma More v. The University of Papua New Guinea [1985] PNGLR 401
Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266.
Re lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886.
Re Conditions of Detention at Beon Correctional Institution (2006) N2969.
Re Miriam Willingal [1997] PNGLR 119.
Mathias Goma v. Protect Security & Communication Ltd (2013) SC1300
Philip Kikala v. Electoral Commission (2013) N4960
The State v Jimmy Ketu (No 2) (2007) N3394.
Rimbao v. Pandan (2011) SC1098.
Mendepo v. National Housing Corporation (2011) SC1169.
Francis Essacu Baindu v. Joseph Jerry Yopiyopi (2019) SC1763.
PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126.
The State v. Eremas Wartoto (2015) SC1411.
Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118.
Rimbink Pato v. Anthony Manjin [1999] PNGLR 6.
Re Application of Paul Tiensten (2014) SC1343.
Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596.
MVIT v. James Pupune [1993] PNGLR 370.
Sankaran Venugopal & PNG Pipes Limited v. Port Moresby Pipes Limited & Globe Limited (1999) SC634.
PNG Pipes Pty Limited & Sankaran Venugopal v. Mujo Sefa, & Ors (1998) SC592.
Simon Kama v. The State (2004) SC740.
Thress Kumbamong v. The State (2008) SC1017.
Rawson Construction Ltd v. Department of Works (2005) SC777.
Bluewater International Ltd v. Roy Mumu (2019) SC1798.
Michael Keka v. Pius Yafaet (2018) SC1673.
Daniel Ronald Walus v The State (2007) SC882.
Delba Biri v. Bill Ninkama, Electoral Commission, Bande and Palumea [1982] PNGLR 342.
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] 314.
Special Reference Pursuant to Constitution Section 19; Section 365 of the Income Tax Act (1995) SC482.
University of Papua New Guinea v. Ume More and Ors [1985] PNGLR 48.
The State v. Mana Turi [1986] PNGLR 221.
The State v Nimbituo (2020) SC1974.
Tom Amaiu v. Commissioner of Corrective Institutions [1983] PNGLR 87
Yausase v. Keko (2017) N6853
Koimo v. Independent State of Papua New Guinea [1995] PNGLR 535
Re Heni Pauta & Kenneth Susuve [1982] PNGLR 7
Liliura v. Commissioner of the Correctional Service (2019) N7917
Mal v. Commander, Beon Correctional Institution (2017) N6710
Acting Public Prosecutor v. Uname Aumane [1980] PNGLR 510
Supreme Court Reference No. 2 of 1981; Re s. 19(1)(f) of the Criminal Code [1982] PNGLR 150
Avini v. The State (1998) N1786
John Alex v. Martin Golu [1983] PNGLR 117
The State v. Popo [1987] PNGLR 286
Reference No 1 of 1977 [1977] PNGLR 36
Overseas Cases Cited:
The Human Rights Case (Environmental Pollution in Balochistan PLD 1994 SC.
Hussainara Khatoon & Ors vs Home Secretary, State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532.
Mareva Compania Naviera SA v. International Bulkcarriers SA [1975] 2 Lloyds’s Rep 509 (C.A. 23 June 1975) [1980]1 All ER 213.
Whittaker v. Roos and Bateman [1912] AD 92.
Kudła v. Poland [GC] 2000
Other Sources Cited:
Cross on Evidence, 2nd Australian edition.
Constitutional Planning Committee (CPC) in its Final Report 1974 at para 23, p 11/3
Counsel:
Mr. T. Mileng, for the Appellant
Ms. E. Wurr, for the Respondent
04th February, 2021
2. I have had the benefit of reading the draft decisions of their Honours Thompson and Berrigan JJ. Their Honours have sufficiently covered the relevant facts and the background leading to this appeal. I agree with their Honours except on the question of notice under s 5 of the Claims By and Against the State Act (CBASA). I also agree for the reasons their Honours give and others I propose to add, that the appeal should be upheld and the orders they proposed should be made. Given the importance of the issues raised in this proceeding I consider it important that I should add a few reasons in addition to the reasons given by their Honours.
Nature of the powers under s 57 of the Constitution
3. I consider it important that we should start with a consideration of the nature of the powers vested in the Courts by s 57 of the Constitution, when a need for an enforcement of a person’s human right arises. This provision states:
“57. Enforcement of guaranteed rights and freedoms.
(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
(2) For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.
(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”
4. This provision needs to be properly read, interpreted, understood and applied. Schedule 1.5 of the Constitution itself provides for the way in which that should be done by stating as follows:
“(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.”
(Underlining mine)
5. Proceeding on that basis it is settled law that, the fair large and liberal approach should be employed to interpret and apply a Constitutional law provision or any other statutory provision as opposed to a narrow and restrictive approach. The Supreme Court has been repeatedly making this point clear and have also applied the principle in many cases. One of its earliest decisions representing these authorities is the decision in Inakambi Singorom v. John Kalaut [1985] PNGLR 238. There, the first national Chief Justice, Sir Buri Kidu, speaking in the context of considering the interpretation of a Maximum Penalty legislation, said of the principles governing statutory interpretation:
“Rules or maxims of interpretation of statutes are only guides and must not be thought of as substantive law. They are not inflexible rules to be applied without question. In this jurisdiction these rules are subject to two very important constitutional provisions: (a) fair and liberal interpretation (Sch 1.5 (2)) and (b) the paramountcy of justice (s 158 (2)). Schedule 1.5 (2), I know, relates to the interpretation of constitutional laws, but if constitutional laws, which are higher laws than Acts of Parliament, must be given their fair and liberal meaning, it is my view that that means that ordinary laws must be given their ‘fair and liberal meaning’. Section 158 (2) says that in interpreting laws the courts must ‘give paramount consideration to the dispensation of justice’.
Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sight of and that is that a clear parliamentary intention in legislation cannot be ignored or overruled by the courts. The courts cannot and must not frustrate clear parliamentary intention in any legislation so long as such legislation is constitutionally valid. For Parliament is empowered by the Constitution, s 100, to exercise the legislative power of the people and not the courts. In fact, Parliament's legislative power, subject to the Constitution, is unfettered (the Constitution, s 109 (1)), and laws made by Parliament ‘shall receive such fair, large and liberal construction and interpretation as will best ensure that attainment of the object of the law according to its true intent, meaning and spirit’ (s 109 (4)). I have said the above to emphasis that a court cannot go beyond its powers by using maxims of interpretation or rules of interpretation to over-ride clear and explicit parliamentary intent in legislation. This is not saying that I support ‘the strict literal and grammatical construction of the words, heedless of the consequences’ approach to statutory interpretation: see PLAR No 1 of 1980 [1980] PNGLR 326.
The ‘purposive’ rule of interpretation urged by Wilson J and Andrew J in PLAR No 1 of 1980 must not be used by the courts to nullify laws which are clearly constitutional and which clearly and unambiguously state the intentions of the legislature. What I am saying can be stated simply this way: Where Parliament says in an Act that ‘dogs’ are to be registered if they are pets, a court cannot say that ‘dogs’ means ‘pigs’ simply because pigs are sometimes raised as pets.”
(Underlining mine)
6. Subsequent and recent decisions of the Supreme Court continue to recognise these principles and adopt and apply them: See for example, Reference by the East Sepik Provincial Executive (2011) SC1154, per Kirriwom J; Reference pursuant to Constitution, Section 18(2) Re Jurisdiction of the Leadership Tribunal (2019) SC1852, per Kandakasi DCJ, Batari, Cannings, David and Hartshorn JJ; Special Reference pursuant to Constitution s19(1) Special Reference by the Ombudsman Commission of PNG (2019) SC1879, per Salika CJ, Kandakasi DCJ, Mogish & Manuhu JJ and William Hagahuno v. Johnson Tuke & Electoral Commission of PNG (2020) SC2018, per Kandakasi DCJ, Kirriwom, Mogish, Manuhu and Makail JJ.
7. At the same time, as I noted in my judgment in Hagahuno v. Tuke (supra), it is trite law that there are two well-known exceptions to the fair large and liberal interpretation rule. These exceptions are: (1) where the words used in the legislation are so plain and clear that no art of interpretation is required; and (2) in tax legislation, where the strict interpretation rule applies. The reason for these exceptions is easy to understand. In respect of the first of these exceptions, it is well accepted that where the words used by the legislature clearly and plainly express the legislature’s intention, they should be given effect to without further ado. As for the second exception, it is trite law that to validly impose a tax or a charge against a subject, Parliament needs to express that intention in clear and unambiguous terms in the relevant statute. A failure to do so, would result in an interpretation that is favourable to taxpayers.
8. There is much case law comprising judgments from both the National and Supreme Court on s 57 of the Constitution. I will make mention of a few and relevant Supreme Court decisions on point. One of the earliest authorities on point is the decision in Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329. There, this Court considered s 57 (1) in the context of protecting the applicant’s permit to enter the country following its revocation by the Government. The Court at p. 361 said:
“Under s. 57 (1) of the Constitution both the National Court and the Supreme Court have not only the right but the duty to protect and enforce the Constitutional rights and freedoms and s. 155 (4) confers upon both the National and the Supreme Court powers to make orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. It follows that if there is no challenge on constitutional grounds there can be no appeal either from the decision of the Minister or the Committee of Review. But if there is a complaint that rights under the Constitution have been infringed the person aggrieved is entitled to come to the courts in order to enable them to inquire and ascertain whether he has any such rights and, if it is found that he does have such rights, the courts have a duty to give him relief if there has been an infringement of any of those rights.”
9. Another relevant decision is the decision in Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea & Ors [1981] PNGLR 396 at p. 408, Miles J considered s 57 (1) in the context of protecting the rights of squatters from being unjustly deprived of their property. His Honour said:
“There are a number of decisions in the National Court to the effect that it is not possible for this Court to exercise its jurisdiction under s. 57 (1) and (3) to make an order which is necessary for the protection of a constitutional right or freedom unless this Court both interprets and applies the relevant constitutional provision: e.g. The State v. Kwambol Embogol (Unreported National Court judgment N91 dated 7th April, 1977); The State v. Peter Painke (No.2) [1977] PNGLR 141 and Re s. 42 of the Constitution and Jacob Hendrich Prai [1979] PNGLR 42. Conversely it seems to me that the jurisdiction may be exercised even though in the event the National Court may decide to refuse to make an order under s. 57, for whatever reason. To put it another way, the jurisdiction encompasses not only a positive finding that the constitutional right or freedom is violated as a necessary step towards its enforcement and protection. It also extends to a negative finding that there is in the instant case no infringement of any constitutional threat of freedom.
10. The decision in the PNG Ready Mixed case was adopted with approval by this Court in Koang No. 47 Ltd v. Mondo Merchants Ltd and Melpa Properties Limited (2001) SC 675.
11. A recent decision on point is the decision of this Court in Belden Norman Namah v. Rimbink Pato (2016) SC1497, per Salika DCJ, Kandakasi J (as we then were), Kariko, Sawong and Higgins JJ, held the holding of 730 refugees against their will on Manus Island by the PNG and Australian governments unconstitutional and ordered the holding facility closed. Following that decision 230 of the refugees were found to be non-genuine refugees and were to be deported. Out of that, 166 of them applied for interim restraining orders in the case now reported as Behrouz Boochani v. The State (2017) SC1566. The Court per Injia CJ, Salika DCJ (as they then were) and Hartshorn J held that s 57 only provides for substantive and not interim relief and dismissed their applications. In their own words Salika DCJ and Hartshorn J explained:
“36. From a perusal of s. 57(3) we are satisfied that it is concerned with the grant of a substantive order or declaration by a court which has jurisdiction under s. 57(1). This is reflected in the following statement by Gavara Nanu J. in The State v. Transferees (2015) SC1451 at [14] although made in a different context:
‘41. In regard to s. 57(3) of the Constitution, I find that it confers power on a court only to make an order for a declaration to enforce a statutory right or duty:...... The court’s jurisdiction under s. 57(3) is derived from s. 57 (1) and a court’s power to make an order or a declaration under this section only arises upon an application being made by a party.’
37. We are not satisfied that s. 57(3) confers jurisdiction to grant interlocutory relief and so it is not able to be relied upon by the applicants for that purpose in this instance.”
12. Earlier in The State v. Transferees (2015) SC1451, per Sakora J (as he then was), Gavara-Nanu J and Ipang J (as he then was), the Court considered the provisions of s 57 (1) in some detail. There, Cannings J initiated proceedings under s 57 (1) of the Constitution, proceeded to conduct an inquisitorial type of inquiry and refused to disqualify himself when the State objected to His Honour continuing to preside over and deal with the matter. Sakora J whilst agreeing with Gavara-Nanu and Ipang JJ observed:
“... In respect of the jurisdictional issue vis-a-vis s 57 (1) Constitution, I agree that the learned primary judge fell into grievous error when he invoked and proceeded under this provision. With respect, Justice Gavara-Nanu quite properly and succinctly dealt with this issue in his exhaustive treatment of the pertinent case law enunciations of the applicable principles governing the circumstances under which this serious ‘human rights’ provision should be invoked...
... This was a case that ought not have been embarked upon in the manner the learned primary judge did. In doing so, it raised serious issue of proper jurisdiction as extensively dealt with by my brother Justice Gavara-Nanu.”
13. In his judgment, Gavara-Nanu J, after quoting the relevant provisions of the Constitution discussed what the learned trial Judge did and said:
“33. As I said, his Honour construed s. 57 (1) as conferring jurisdiction on the National Court to commence proceeding HROI No. 1 of 2014 on its own volition.
34. With the greatest of respect, I am of the firm view that s. 57 (1) does not confer power on either the National Court or the Supreme Court to initiate or commence proceeding on their own initiative or to unilaterally commence a proceeding; nor, does it confer power on a court to conduct an inquiry as was the case here.”
14. His Honour reasoned at paragraph 35 of the judgment that:
“Section 57 in its heading provides for the – “enforcement of guaranteed rights and freedoms”. In its specific terms, subsection (1) provides for the protection and enforcement of a right or a freedom. That is the purpose of any ‘initiative' a court may in its discretion decide to take under subsection (1). In my respectful opinion an ‘initiative’ of a court under subsection (1) relates to its discretion as to an order or a declaration it may make in the particular circumstances of a case. Such an order or a declaration must be proper and reasonable and made according to law and the court must exercise its discretion judicially: Kumagai Gumi Co. Ltd v. National Provident Fund Board of Trustees (2005) SC776 and Avia Aihi (No.1) (supra). I am of the opinion that a proper exercise of power by a court under s. 57 (1) would involve the making of an order or a declaration only. It does not confer power on a court to commence or initiate a proceeding as was the case here.”
15. In support of the view he had expressed, His Honour said there is a line of case authority which reinforces his view. The first case he cited was the decision in Constitutional Reference No. 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362, Frost CJ, Prentice DCJ, Williams, Kearney and Pritchard JJ (as they then were). In that case, the Supreme Court considered s. 57 (1) in the context of protecting the rights of a person arrested and detained on a charge, under s 42 (2) of the Constitution. Gavara-Nanu J quoted the following passage from that judgment per Frost CJ at p. 373:
“But the National Court under Constitution s. 57 (1), in the course of a trial of an offence, has power and, according to the circumstances of the case, may be bound to make an order or declaration that admissions obtained in breach of the Constitution s. 42 (2) should be excluded from evidence in the trial.”
(Underlining mine)
16. The second case His Honour cited was the decision in Premdas v. The State (supra). His Honour cited the part of the judgment I already quoted at paragraph 8 in this judgment.
17. The third case His Honour referred to was the decision in PNG Ready Mixed and also quoted from Miles J at p. 408, which I reproduced at paragraph 9 in this judgment. His Honour noted that, the decision in the above case was adopted with approval by the Supreme Court in Gregory Puli Manda v. Yatala Ltd (2009) SC974 and Koang No. 47 Ltd v. Mondo Merchants Ltd & Anor (supra).
18. Finally, having regard to the principles discussed and applied in those cases, his Honour concluded “the approach adopted by the learned primary judge was inconsistent with the intention and spirit of s 57 (1).” Proceeding on that basis, His Honour found that the human rights proceedings that were initiated by Cannings J amounted to an abuse of process of the Court. Additionally, His Honour found O 23 r 8 of the National Court Rules to be inconsistent with Constitution s 57 (1) and therefore pursuant to s 184 of the Constitution declared Rule 8 of Order 23 and Form 126 (Human Rights Rules) to be unconstitutional such that it should be struck out.
19. His Honour went on to express the view that:
“In regard to s. 57 (3) of the Constitution, I find that it confers power on a court only to make an order or a declaration to enforce a statutory right or duty: Amaiu v. Commissioner of Corrective Institutions and the Independent State of Papua New Guinea [1983] PNGLR 87. The court’s jurisdiction under s. 57 (3) is derived from s. 57 (1) and a court’s power to make an order or a declaration under this subsection only arises upon an application being made by a party. Consequently, I find that the court’s power under subsection (3) was wrongly invoked by the learned primary judge to issue summonses against certain individuals.”
20. The other member of the Court, Ipang J (as he then was), gave consideration to what transpired before Cannings J and then went on to give consideration to the meaning of the phrase “on its own initiative” in s 57 (1) Constitution. Relevantly, His Honour asked the question what does the phrase really mean? To answer that question, His Honour went to the Concise Oxford Dictionary Tenth Edition by Judy Pearsall. His Honour noted that the dictionary “defines the word ‘initiative’ as the ability to initiate, the power or opportunity to act before others do, or without being prompted by others.” On these bases His Honour concluded “[t]o initiate is therefore to cause a process or action to begin.” Thereafter, His Honour considered what transpired in the case in the trial Court and held:
“The manner in which His Honour initiated the proceeding and thereafter conducted the proceeding or enquiry is the subject of this appeal. There is a Commission of Inquiry Act, Ch. No. 31 which provides or caters for inquiries. Courts determine right whilst inquiries make findings and recommendations. In my view the National Court was wrong to approach the proceedings as an inquiry. Supposing the proceeding was an inquiry then I believe the first usual step would be to appoint counsel assisting or an amicus curae (a friend of court). This was supposed to be done so that His Honour as the decision maker is removed from the arena or the spot light.”
21. Recently, in Buni Morua & 79 Others v. China Harbour Engineering Company Ltd (2020) N8188, I considered the provisions of Constitution s.57 and pointed out that the following is clear:
“(1) the Supreme and National Courts or any other court authorized by an Act of Parliament are authorized to enforce the various rights or freedoms provided for in the Constitution;
(2) this can be done either:
(a) on the Court’s own initiative; or
(b) on application by any person;
(3) the person coming to the Court must either;
(a) have an interest in the protection and or enforcement of his or her right or freedom; or
(b) is someone who is acting on behalf of another person who is not able to fully and freely exercise his or her rights under s.57 with or without the expressed authority of the person so represented;
(4) unlike in any other proceeding, the reliefs that can be granted are broad and:
(a) are not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms;
(b) but may be given in cases in which there is a reasonable probability of infringement; or
(c) in cases where an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
22. I noted that the intention behind including this provision is clearly stated in the words of the Constitutional Planning Committee’s (CPC) in its final report at paragraph 116 of Ch.5, Part 1, p.18:
“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 of the land – the Supreme Court. People should be able to complain of a breach of a human right and have that complaint judicially decided without undue difficulty.”
(Underlining mine)
23. I went on to note that Frost CJ in Reference No. 1 of 1977; Re Rights of Person Arrested or Detained (supra) at pp.366-368 summed up the provisions of s57 and what the CPC said in the following terms:
“Provision for the enforcement of the rights and freedoms conferred in Div. 3 is set out in Subdivision D – Enforcement, which contains ss.57 and 58. Such a right or freedom is to be protected by and is enforceable in the Supreme Court and the National Court, and that protection is to be afforded either on the initiative of the Court, or on application by any person who has an interest in its protection and enforcement, or if unable to exercise his rights, by a person acting on his behalf (s.57). For the purposes of the section the Law Officers of Papua New Guinea and other defined persons have an interest in the protection and enforcement of the rights, but the subsection does not limit the persons or classes of person who have such an interest (subs.(2)). Plainly a person who claims that his right is infringed is a person who has an interest in its protection and enforcement. If there were any doubt about this, it is dispelled by the Report of the Constitutional Planning Committee, which may be used, so far as it is relevant as an aid to interpretation of the Constitution (s.24(1))”
(Underlining mine)
24. To that, I added:
“As the CPC itself said, the object of s. 57 was to enable a prompt intervention and judicial determination in respect of any actual, imminent, likely or reasonable probability of a breach of any person’s human rights. This is to happen without any “undue difficulty”. Standing or locus standi to bring proceedings for the enforcement or protection of human rights can be a challenge if left for the normal rules to apply. The founding fathers of our country therefore deliberately chose the process to be more flexible and easier to even enable the National and the Supreme Courts to act on their own initiative and not to wait for someone to bring proceedings before them. Waiting for the normal process to take its cause comes with the risk of allowing breaches to occur unabated and make any protection or enforcement effort a little too late, as loss or damages might already occur and victims of the breaches in some cases might not be still alive by then. The intention here is to ensure appropriate action is taken to minimize further harm and breach if the breach was occurring or if imminent, likely or reasonably probable, stop any breaches from occurring and hence avoid any harm, damage or loss.
25. Appreciating the intention behind s 57, I concluded:
“It follows therefore that when it comes to enforcement of a human right or a freedom, there is no restriction on who can invoke the powers of the Court. The only test is, ... the action must concern, actual, imminent, likely or reasonable probable breach of a human right or freedom. As long as that test is met, almost anybody, including the Court acting “suo moto” or acting on “its own initiative” or “on its own motion” can initiate proceedings under s.57 for the enforcement or protection of a human right.”
26. I went on to note that both the Supreme and National Courts have endorsed the idea of the Courts acting on their own initiative starting with the decision in Uma More v. The University of Papua New Guinea [1985] PNGLR 401 (per Pratt, Amet and Los JJ.). through to the decisions in Reference No. 1 of 1977 (supra), Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266 Brunton AJ (as he then was), Re Lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886, per Elias J (as he then was) and a string of judgments by Cannings J, for example, the decisions in Re Conditions of Detention at Beon Correctional Institution (2006) N2969 and others. I also noted the decision in Re Miriam Willingal [1997] PNGLR 119, per Injia J (as he then was) as a suo moto action but I stand corrected now that it was on an application by Individual and Community Rights Advocacy Forum Inc or ICRAF.
27. At the same time, I noted that the only exception to that line of authority was the decision in The State v. Transferees (supra), which I discussed earlier. After discussing what the Court said in that judgment, I went on to make a number of observations. Firstly, the views expressed by the Court were obiter dicta only as those were not the issues before the Supreme Court. What was before the Supreme Court was Cannings J’s refusal to disqualify himself from the case. Hence, the Supreme Court’s views are not binding: See Mathias Goma v. Protect Security & Communication Ltd (2013) SC1300 (at paras 132 -134) and Philip Kikala v. Electoral Commission (2013) N4960 (para 66); The State v Jimmy Ketu (No 2) (2007) N3394 (para 15 and 16).
28. Secondly, I noted that even if the decision was not obiter dictum and hence binding, I had difficulty in accepting the decision as a correct representation of the law. I gave a number of reasons for holding that view. The first was this: of the three judges constituting the Court, only Gavara-Nanu and Ipang JJ quoted and considered the provisions of s 57 (1) and Sakora J agreed with them. Ipang J considered the meaning of the phrase “on its own initiative” as used in s 57 (1) of the Constitution to mean “as the ability to initiate, the power or opportunity to act before others do, or without being prompted by others. To initiate is therefore to cause a process or action to begin.” Despite arriving at that meaning, His Honour did not with respect, apply the meaning of the phrase to the case before him. His Honour did not point out what the relevant phrase meant in the context of the whole of the provision, in particular, the whole purpose or objective of having this provision. This was inevitable, given that His Honour did not give any consideration to the purpose or object of having this provision in the Constitution.
29. In respect of Gavara-Nanu J’s decision, I noted with respect that the cases His Honour cited in support of his views, especially the decisions in Reference No. 1 of 1977; Re Rights of Person Arrested or Detained (supra), Premdas v. The State (supra), PNG Ready Mixed Concrete Pty did not deal with the question of a Court or a Judge initiating proceedings to enforce or protect human rights. I also noted with respect that His Honour, did not give any consideration to the purpose and or object of having s 57 in the Constitution. Further, I noted that His Honour did not contextualise the word “initiative” as used within the meaning of s 57.
30. Thirdly, I noted that both their Honours, with respect, did not give any consideration to the decision of the Supreme Court in Uma More’s case. Similarly, though not binding, they did not have any regard to the many National Court decisions which invoked the provisions of s 57 of the Constitution. Additionally, both their Honours did not note or remind themselves that Courts usually have the power to act “suo moto” for the enforcement or protection of human rights and in other contexts as well. In some cases, there are statutory foundations for this power where the phrase “on its own initiative or on application by any person” as it appears in s 57 of the Constitution is commonly used. For an example on point I referred to the provisions of s 28 (1) (b) of Supreme Court Act (Chp.37) and Court Rules such as O 5 r 8 (1) of the National Court Rules. I then noted an absence of any record of controversy as to the application of such statutory provisions. The record however shows the Courts readily applying or exercising such powers and cited for example the decision of the Supreme Court in Rimbao v. Pandan (2011) SC1098, per Salika DCJ (as he then was), Hartshorn and Kariko JJ, Mendepo v. National Housing Corporation (2011) SC1169, per Davani (as she then was), Hartshorn, and Murray JJ, Francis Essacu Baindu v Joseph Jerry Yopiyopi (2019) SC1763, per Hartshorn J and PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126, per Kandakasi (as I then was), Hartshorn and Sawong JJ.
31. Fourthly, I noted that their Honours, with respect, did not note the fact that the power to act suo moto is not unique to PNG. Had they done so they would have noted that the highest Court or judicial officers in other Commonwealth countries have exercised the suo moto powers. For an example on point, I pointed out that in Pakistan the higher Judiciary does that with greater intensity and scope following the signing of the Quetta Declaration in 1991 by the judges of the Supreme and the Higher Courts.[1] That eventually relaxed the doctrine of locus standi and enabled many, including the judges or courts themselves, to initiate proceedings as was done in the case of The Human Rights Case (Environmental Pollution in Balochistan PLD 1994 SC. I also noted that India started doing likewise, from around 2002. However, the foundation was laid by the Supreme Court’s landmark decision in Hussainara Khatoon & Ors vs Home Secretary, State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532. By 2010, such initiatives became markedly more prevalent. This consists of cases in which the suo moto power has been applied to cases in which persons other than the courts or judges initiated the proceedings as well as many cases in which judges initiated the proceedings.
32. I then concluded:
“A closer look at the cases on suo moto, presents a number of interesting features in almost all the cases that have invoked the suo moto powers of the courts. They all depart from the court’s regular mode of operation. Instead of the courts taking a more passive role, they have become more active and directed how the cases should be dealt with and deliver prompt directions, judgments or orders. They have stepped out of the normal or traditional adversarial role to more inquisitorial roles. Institutional time and space have been shortened to enable prompt hearings and disposals. This has seen to an elimination and liberation from the different layers in the normal handling of court files and cases from filing, to pleadings, to interlocutories and interrogatories which has caused so many inordinate and lengthy delays without getting to a final outcome. The imperative has been to connect with the immediacy of the events. The courts have been able to project themselves into the “moment of action, to act at the coal face, where the rubber meets the road” so to speak. They have all aspired to correct injustices without being constraint by forms and formalities. These kinds of interventions have been very public with much public endorsement.”
33. What has not been specifically considered by any case precedent to date is the question that is raised in the context of this case. The question is whether the powers vested in the Courts or a Judge under s 57 override the powers, processes and procedures provided for by the Constitution itself or an Act of Parliament? In my view s 57 (6) of the Constitution itself provides the answer to the question. The provision relevantly reads:
“The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”
(Underlining mine)
34. Applying the principles of interpretation discussed earlier to the present case, I note the words used by the legislature are very clear. The powers vested in the Courts by s 57 “are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of the Constitution.” The addition of the phrase “and not in derogation of” adds more clarity to and emphasises the point that the powers “are in addition to” the jurisdictions and powers vested in the Courts by other provisions of the Constitution.
35. The word “derogation” comes from the word “derogate” which most dictionaries define as “an exemption from or relaxation” from something. In the case of legal powers duties and responsibilities it means to “annul or restrict the strength of an obligation or right”: A Dictionary of Law by L.B. Luzon, Macdonald & Evans, 1979. Clearly, therefore, the powers vested in the Courts by s 57 do not restrict or limit the other jurisdictions and powers already vested in the Courts. In other words, the powers vested in the Courts by s 57 are not superior to or do not override the jurisdictions and powers vested in the Courts and other authorities by other provisions of the Constitution and Acts of Parliament, rules and regulations enacted and operating or functioning under a valid authorisation or empowerment by the Constitution.
36. This view was in effect endorsed by this Court’s decision in Reference 1 of 1977 (supra) per Frost CJ. There, His Honour discussed the nature of the powers under s 57 in the following terms:
“A Court that has jurisdiction under s. 57 is given the plenary power to make all such orders and declarations as are necessary and appropriate for the purposes of the section (subs. (3)), and further ancillary powers are added in subsections (4) and (5). That power must include the making of an order or declaration that a statement made by an accused person following non-compliance with s. 42 (2) be excluded from evidence, which is the most effective form of relief for any accused person. The jurisdiction and powers of the Courts under s. 57, it is expressly provided, are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of the Constitution subs. (6)), which include of course the jurisdiction to award compensation under s. 58. As that section is also expressed to be in addition to and not in derogation of s. 57, (s. 58 (1)), the result presumably is that each section is to be given an independent operation. Whilst the requirement that the right or freedom shall be protected by the Court in s. 57 (1) would by its mandatory terms seem to be paramount, under s. 58 there is an additional and independent entitlement, conferred upon a person whose rights or freedoms declared or protected by Div. 3 are infringed, to reasonable damages, and if the Court thinks proper exemplary damages (s. 58 (2)).”
(Underlining mine)
37. His Honour went on to say:
“However, in the case of non-compliance with the Constitution, s. 42 (2), it may be thought inadequate for a Court to admit the accused's statement, and simply allow action to be taken under any other provision. In the ordinary case of a breach of s. 42 (2), particularly of sub-paragraphs (b) and (c), the Court may well feel bound to adopt the analogy of relief by way of restitutio in integrum, or restoration of the accused to the position as if s. 42 (2) had been complied with, taking into account the real possibility that the accused would have exercised his right to silence, and thus to exclude the admission under s. 57. There is no reason why such an order should not be made in the course of a criminal proceeding before the National Court.”
(Underlining mine)
38. The authorities discussed above make it very clear that the powers vested in the Courts under Constitutions s 57 were not intended to and do not have the effect of overriding, restricting, annulling or relaxing the jurisdictions and powers already vested in the Courts by other provisions of the Constitution. Instead, the powers vested in the Courts under s 57 are complementary to or are in addition to such jurisdictions and powers. That being the case, I am of the view that s 57 does not grant or vest any power in any person, Judge or Court to adopt a process and procedure outside or in competition to or contrary to that which is already provided for by other relevant and applicable substantive and procedural law. Consequently, a party or a person or a Court wishing to take steps to enforce a person’s human rights, must use the relevant and available processes.
39. The way this was intended to work out in my view, is this. Where a need for the enforcement of one’s human rights arises whilst a related civil or criminal proceeding is on foot, the necessary application must be made within the relevant proceedings as suggested by Frost CJ in Reference 1 of 1977 (supra) and not in any other way. But where the proceedings are concluded, any application for the enforcement of one’s human rights must be brought within an appeal or review against the primary decision where either of these processes are available and not otherwise. Restating the well-known, unless there is an appeal or a review, a matter usually stands concluded upon the pronouncement of the final judgment and orders in a case. Where an appeal or review is filed, the proceeding gets concluded upon final decision on the appeal or review.
Particular contexts for a possible application of s 57
(a) Criminal Cases
40. I now turn to a consideration of the particular contexts in which s57 could be invoked. The first context is the provision’s possible application in criminal cases. The five-member Supreme Court decision in The State v. Eremas Wartoto (2015) SC1411, per Injia CJ, Sakora and Kandakasi JJ (as we then were), Kirriwom and Davani JJ (as she then was) is relevant. That decision looked at the question of whether civil proceedings outside the criminal process could be used to stay or otherwise interfere with criminal proceedings. That decision settled the law by giving a negative answer to the question. Injia CJ said:
“9. The pertinent facts which gives rise to the first issue is indeed peculiar one for which there appears to be no case precedent. This perhaps is a clear indication that such practice where a civil action is brought to stay a criminal proceeding before the same court constituted by the same judge or a different judge, is virtually non-existent in common law jurisdictions. The standing practice all along has been that the criminal process and the civil process in the National Court are set apart by the law and rules of Court, and that any recourse to judicial relief, interim or substantive, is to be found in their respective domain. It is clearly out of procedure for the National Court, constituted by the same judge or a different judge, to be invited to give itself the power through a civil proceeding to review and stay a criminal proceeding before it.
10. In my view, there are adequate avenues provided in the Criminal Code, for an accused person to have recourse to, to contest the State case against him or her at each critical phase of the criminal trial process once that process is set in motion in the National Court.”
(Underlining mine)
41. His Honour then went on to outline the avenues that were open for an accused person to use under the criminal process from the charging of an accused person to trial and appeals and or reviews. Thereafter, His Honour concluded:
“11. These procedural safeguards are in-built into the criminal process to give full protection to the constitutional right of the accused to the benefit of presumption of innocence and a fair trial. To my mind those safeguards are elaborate and most favorable to the accused. Some of these procedural safeguards and the Courts’ to perceived preoccupation with some of them have been criticized in some circles in PNG as heavily favoring an accused person to the detriment of the society’s interest in ensuring that offenders are brought to justice and punished. Be that as it may, the National Court before which the criminal trial is conducted remains duty-bound to conduct those proceedings fairly and according to law, and accused persons committed to stand trial in the National Court should have no reason for concern. If they have not been treated according to law during the investigations and prosecuted without reasonable or probable cause, they will be vindicated by the National Court, in the course of the criminal trial proceedings.
12. For the foregoing reasons, I do not consider the Constitutional notion that the National Court is a Court of unlimited jurisdiction coupled with the discretionary powers provided by s 155(4) of the Constitution, as argued by the appellant, should be read and applied to override the criminal trial process in the National Court that is expressly stipulated in the Criminal Code.”
(Underlining mine)
42. In our joint judgment, Sakora J and I went into a detailed survey of the relevant case law on point. That included the decisions of this Court in Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118, per Salika DCJ (as he then was), Kirriwom J and Kandakasi J (as I then was) and Rimbink Pato v. Anthony Manjin [1999] PNGLR 6 and a string of National Court decisions. Thereafter we discussed the various stages and the avenues open to accused persons to seek a remedy for any breach of their rights from point of arrest to the appeals and or reviews following convictions and sentences. We then concluded:
“51. We reiterate, if anything should be clear from the foregoing discussions is the fact that, any issue around irregularity, defect or otherwise an abuse of process, must be raised promptly at the appropriate level. If it concerns any abuse at the Police investigation or District Court committal stages, they must be first raised and resolved at those levels. Any matter beyond the reach of the District Court can be raised and sorted out with the Public Prosecutor at the first instance or failing that, the National Court when the matter enters the National Court in accordance with the process and procedure stipulated under the Criminal Code and Criminal Practice Rules of the Court. Finally, if the abuse is at the National Court level, again it must first be raised and dealt with at that level. If the issue is appropriately raised at the National Court level and the Court fails to deal with, it would properly be a subject for appeal or review. Finally, the Supreme Court would deal with any abuse or improper use of its process, including any appeals or reviews on point and abuse of the National Court process which could not be corrected at that level by the National Court.
52. Given the procedural safe guards outlined and discussed above and the hierarchy of the Courts with their specific jurisdictions, it would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court’s civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it. This would be the case because, such an issue can be fully raised and could be adequately and satisfactory dealt with by the National Court in its criminal jurisdiction when the matter is before the National Court through the normal process. The National Court would be usurping the powers of the Police, the District Court or that of the Public Prosecutor if it assumes jurisdiction and deals with a criminal matter in its civil jurisdiction or even in its criminal jurisdiction prior to the matter properly getting before it in its criminal jurisdiction, and more so in a case where the process at the Police investigation and District Court levels have not yet been exhausted.”
(Underlining mine)
43. Thereafter, we made a number of additional observations and eventually concluded:
“60. It should follow therefore that, unless a person brings an application or proceeding in accordance with the processes and procedures at the relevant and appropriate stages as discussed above, anything else would be an abuse of processes of the Courts or any prescribed procedure. Any such attempt should not be permitted in line with the various pronouncements we have discussed above. For our criminal justice system is one which is regulated by both substantive and procedural law, from the Constitution to the court rules and pronouncements of both this and the National Courts for the good order and peaceful existence and development of our country.
44. The fourth member of the Court, Kirriwom J, said Mr. Wartoto would have properly made his application “in the Committal Court before the District Court Magistrate who could then have taken into consideration that submission when determining whether a prima facie case was established or not.” His Honour then pointed out, it was improper for Mr Wartoto to make his application using a civil proceeding in the National Court. He gave a number of reasons for arriving at that view, including His Honour’s view that the criminal trial process was hi-jacked. Another was that:
“The application was misconceived in the way it was presented when there were sufficient avenues open within the criminal track for the appellant to have challenged the charges against him instead of invoking a civil procedure to stop or derail a criminal process that had already begun.”
45. His Honour went on to note that:
“There are more than adequate checks and balances accorded to a person charged with a criminal offence in our legal system and the laws of the country including the National Constitution which are open to the accused at any stage of the proceedings within the criminal track to involve (sic) the court’s inherent powers and there is no vacuum that can be filled by invoking the court’s prerogative powers through a civil procedure outside the defined criminal practice and procedure guidelines adopted by Statutes and Criminal Practice Rules of the Court.”
46. Finally, the final member of the Court, Her Honour Davani J, came to the same conclusion. After considering discussion in a number of relevant local and overseas decisions she concluded:
“In this case, the appellants are no doubt looking to the O.12 R.40 National Court Rules remedy, where proceedings can be dismissed for being frivolous and vexatious. That doctrine, practise or remedy, has no place in criminal law, and in the Common Law jurisdiction because it is unheard of and in my view, an abuse of both the criminal and civil process. It is a metamorphosis of a civil remedy into an alien concept, unknown to the practise of Criminal Law and is a practise that is frowned upon by the Courts in the Common Law jurisdiction, as shown in my discussions, above.”
47. Where an accused person is found guilty and is sentenced to serve a term of years in prison, there is the further process of the prisoner serving his or her time. By this time, the Courts have no power or jurisdiction to revisit the decision on conviction and sentence except only through an appeal or a review properly invoked by a prisoner. Also, by this time, a prisoner can only be released earlier than his or her due date for release through the parole process under the Parole Act 1991, or through the power of mercy process under s 151 and 152 of the Constitution and the Organic Law on the Advisory Committee on the Power of Mercy and or the process of being released on licence under s 615 of the Criminal Code Act. The Correctional Service Act 1995 is also applicable. These relevant laws create and appropriately empower relevant authorities for each of these avenues and processes. These authorities are necessarily empowered amongst others to consider the public policy and other considerations before releasing any prisoner on parole, mercy or licence. The relevant provisions of the Constitution and the Acts of Parliament also provide for their respective process and procedures. Using the words of Constitution s 57 (6), the powers vested in the Courts by subsection 1 of the same provision, do not derogate from or otherwise override, diminish, restrict or limit the application of these further processes and procedures and the need to use the processes provided for by these laws. Hence, anyone wishing an early release from serving the whole of his or her term of imprisonment or is concerned about his treatment in the prison system in any manner or form, must use any one of these processes as appropriate. They are not permitted and cannot readily resort to the Courts under the guise of an application for an enforcement of a human right without first exhausting these available processes as appropriate. Resorting to the Courts without first exhausting the process provided for by law or outside what is provided for, would no doubt amount to an abuse of the Courts’ process.
48. That position was already highlighted by this Court’s decision in Re Application of Paul Tiensten (2014) SC1343, per Sakora (as he then was), Cannings J and Poole J (as he then was). There, the applicant applied for bail under the Bail Act, pending his appeal against his conviction and sentence. He claimed “serious threats” to his safety and life which started the moment he entered the prison. Particular alleged incidents included hurling of verbal abuse and harassment and actual hurling of stones at his person, with some of them being near-misses. These alleged incidents were perpetrated by fellow inmates from the general prison population, having been provoked, it seemed, by the applicant’s status/position in society before conviction and imprisonment, more particularly as a national legislator directly involved in recent amendments to the law increasing prison sentences. The applicant claimed that he lodged a formal complaint with the Commander of the jail about the threats, abuse and harassments to which he received no positive response.
49. In rejecting the application for bail the Court noted that:
“35. The Correctional Service Act 1995 codifies the law on the establishment and operation of the Service, and provides for its functions and powers, as well as the functions and powers of its members, commencing with that of the Commissioner of the Correctional Service. By definition, ‘members’ are the correctional officers in the employ of the Service. In a hierarchical system of administration, the Commissioner as head of the Service (a ‘State Service’ pursuant to s 188(2) Constitution), has specific duties and responsibilities under s 13 of the Act.”
50. In addition to the general duties and responsibilities the Commissioner has, the Court noted that s 14 of the Act invests the Commissioner with “Special Powers” which the Court considered appropriate for dealing with the incidents that the applicant complained of. Under that provision, the Court noted that the Commissioner may at any time, for the purpose of carrying out his duties and functions under this Act:
“(a) enter premises occupied by or used by the Service; and
(b) summon a person whose evidence appears to be material to the determining of any subject of inspection, inquiry or investigation conducted by the Commissioner; and
(c) take evidence on oath or affirmation and for that purpose administer oaths and affirmations; and
(d) require any person to produce documents within his possession or subject to his control.”
51. This, according to the Supreme Court, granted the Commissioner “a quasi-judicial power to ensure the proper and responsible discharge of his statutory powers, and maintain discipline and order within the Service.” The Court then went on to note that every correctional institution in the country has a senior correctional officer-in-charge who is described as a “Commanding Officer” under s 66 of the Act. Section 67 provides that the functions of such an officer is to ensure that he:
“(a) is responsible for the management, security and good order of the correctional institution and for the safe custody and welfare of the detainees;
(b) shall take reasonable steps to ensure that members assigned to the correctional institution know what their powers and duties are and what provision is made by or under this Act about correctional institutions and detainees; and
(c) shall give all necessary directions to ensure that correctional officers and other members comply with the provisions of this Act; and
(d) has such other functions as are prescribed.
52. Thereafter, the Court went on to discuss the provisions of Part VIII of the Act (ss 71 to 115). It then observed these provisions make elaborate provisions “in respect of security and control of correctional institutions.” More immediate and pertinent to the claims by Mr. Tiensten “are the ‘Visits’ to” the correction institutions by:
“certain authorities (apart from relatives and friends who can and should report to outside authorities): Judges and Magistrates (s 73); Member (or an officer) of the Ombudsman Commission (s 74); Lawyers (s 75); and, a Person authorized by the Minister or Commissioner (s 76). In relation to the health and welfare of detainees, provisions exist for conduct of medical examinations and tests: see ss 88 to 91 (inclusive). Under s 96 of the Act (Power to Transfer Detainees):
The Commissioner may, by instrument in the prescribed form, authorize the transfer of a detainee or of a class of detainees -
(a) from one institution to another; or
(b) from place to place within an institution.
53. After carefully going through the various provisions of the Act, the Court concluded:
“39. Informal mechanisms and external supervision for dealing with the incidents that the applicant relies on for his application are well catered for, in our opinion, on the legislation itself by those elaborate provisions under Part VIII. The “Visits” provisions in particular provide easy access for complaints and concerns such as the ones raised by the applicant here to be taken up directly.”
54. Additionally, the Court noted, “the outcomes of those visits can quite capably provide the background and impetus for invoking s 57(1) of the Constitution. The Court went on to note with interest that the same authorities listed under Part VIII of the CS Act were enumerated under s 57(2) of the Constitution for the enforcement of a person’s human rights.
55. After discussion of the law on bail, the Court ultimately concluded:
“Applying the law to the circumstances of this case, it is our judgment that the instances of harassment, use of abusive and threatening language, and hurling of stones at and against the applicant by fellow inmates of the Bomana Correctional Institution do not, individually or in combination, constitute exceptional circumstances. We accept the submission of learned counsel for the State that these instances are matters within the administrative responsibility of the Commissioner for Correctional Service. And within the institution itself, as with all other correctional institutions throughout the country, the Commanders have direct duties and responsibilities under the Act, as outlined above”.
56. Further the Court stated:
“The complaints and concerns of the applicant, which we accept, in the absence of evidence to the contrary, had, not one, but several avenues for ventilating and obtaining relief and remedies. These very issues and concerns are the very subject matters of the provisions under the Act regarding ‘welfare and safe custody’, ‘security and control’ within the statutory duties and responsibilities of both the Commissioner and Gaol Commander. Informal mechanisms or external supervision for dealing with the incidents that the applicant relies on for this application, are well taken care of in the legislation itself by the ‘Visits’ provisions. The outcomes of these visits can quite capably (if properly utilised by a prospective appellant, or indeed any inmate) provide the background and impetus for invoking s 57 Constitution (supra).”
(b) Specific areas of law
57. For certain specific areas of the law, such as immigration, environment and conservation, health and education, there are specific Acts of Parliament such as the Migration Act (Chap.16) as consolidated to Act No 18 of 2015. These statutes provide for the relevant authorities to deal with such matters, their duties and responsibilities and the process and procedure they must employ to deal with the issues that arise in their respective areas of specialty. Where the relevant authorities fail to appropriately act or refrain from acting and a person’s human right is affected with actual or likely breaches, the Courts or Judges or any other interested person may initiate proceedings under Constitution s 57 (1). That should be the case if no one has issued any proceeding under which the rights affected could be enforced and or protected. The aim of such action should be to ultimately order or compel the relevant authorities to account for their actions or inactions and duly discharge their duties and responsibilities for the protection and enforcement of the affected or likely to be affected human right. To make such orders meaningful and fully complied with, it would be necessary to allow for the Court to provide the necessary oversight until the orders are fully complied with by the relevant authorities duly discharging their duties and responsibilities with any breach remedied or any likely breaches prevented. However, it cannot and should not be the duty and role of the Courts under s 57 (1) to make orders and grant such relief that effectively assume the authority and duties and responsibilities of the relevantly prescribed authorities and or otherwise undermine and or defeat the authority of the relevant authorities and the purpose of having in place the relevant legal regime that governs the subject in question: See Premdas v. The State (supra).
(c) Well established and known cause of actions
58. In other cases, there are well known causes of action based on common law and equity-based substantive law such as the law of contracts including specialised areas such as loans and mortgages agreements, deeds, trusts and the like, or causes based on the law of tort, company law, family law, and others. Specific legislation as in the case of the District Court Act, the Insolvency Act and others, prescribe the way in which a cause of action could be pursued. In other cases, the National Court Rules mainly adopted from the practice and procedure applied developed and applied under the common law of England and English and other Courts’ rules, already provide for the way in which a cause of action could be commenced and pursued in the Courts. The powers vested in the Courts under s 57 of the Constitution being in addition to and not in derogation of such long existing process and procedures, cannot undermine, override, circumvent or otherwise render non-existent such processes and procedures. This means the correct process and procedure must be invoked in due compliance with the practice and procedural requirements already in place. This is necessary to enable a defendant to any application for the enforcement of a human right and the Court to know what exactly the applicant is claiming, the basis for the claim and enable a proper and complete response to the application. These can enable an immediate ceasing of the act complained of or a willingness or an agreement of a respondent to remedy the alleged breach. This would, no doubt, conform with the law on pleadings and the purpose of pleadings: See for example Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596, per Kapi DCJ, Brown and Konilio JJ (as they then were) and MVIT v. James Pupune [1993] PNGLR 370, per Kapi DCJ, Jalina and Doherty JJ (as they then were).
59. In recent times, the establishment of the human rights track in the National Court has seen an influx of cases in that track. One possible explanation for this is the fact there is no requirement for proper pleadings and a need to meet other technical rules which enable a proper dealing with of the substantive matter. Possibly because of that, some cases have been filed in the guise of applications for the enforcement of human rights seeking prompt attention of the Court, when in fact they have been for causes of action that should have been commenced and pursued in the normal litigation process. Effectively therefore, they have turned known causes of action into human rights applications and have thereby contradicted and or have bypassed the long-established process of proper filing of proceedings in the correct form or mode and manner, with proper pleadings, discoveries, interrogatories and other relevant and necessary process and procedures aimed at attaining justice in a fair process. In other words, since the inception of the human rights track and its rules, many causes that should have come to Court correctly through the normal process of writs of summons with a statement of claim endorsed thereto or an originating summons for declaratory orders, judicial review, or other processes prescribed by the National Court Rules or a statute, have been filed as human rights applications.
60. Consequently, this has resulted in an undermining, bypassing and or precluding the application of the relevant and necessary process
and procedure from applying to properly serve justice. That is the case, despite the well-known processes and procedure often adopted
by the Courts to dispense with the strictures of the rules, practice and or procedure in appropriate cases where an urgent intervention
by a Court is required. Provision for this is made for example by O 1 r 7 of the National Court Rules. These laws and practice allow for the National Court to dispense with the strictures of the rules or the law in order to do justice.
Such an application could be made under O 4 r 37 (2) even without first filing and serving a formal motion for urgent relief. The
Courts have exercised this power and have appropriately dispensed with strict compliance of the rules in appropriate cases to do
justice: See for examples Polling v. Motor Vehicles Insurance (PNG) Trust [1982] PNGLR 228; Bank of South Pacific Limited v. PNG Nambawan Trophy Holdngs Limited & Ors (2004) N2717, per Kandakasi J (as I then was); Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694, Amet CJ, Sheehan and Kandakasi JJ (as we then were) and Philip Takori v. Simon Yagari (2008) SC905, Kirriwom, Gavara - Nanu and Kandakasi JJ (as I then was). In more urgent cases applications are allowed to be made ex parte resulting
in sweeping orders in the form of Mareva Injunctions (after the case Mareva Compania Naviera SA v. International Bulkcarriers SA [1975] 2 Lloyds’s Rep 509 (C.A. 23 June 1975) [1980]1 All ER 213) and Anton Pillar orders (assets freezing and search and
seizure orders) to preserve assets and or properties before judgment in appropriate cases: see for example of cases on point, Sankaran Venugopal & PNG Pipes Limited v. Port Moresby Pipes Limited & Globe Limited (1999) SC634, per Sakora J and PNG Pipes Pty Limited & Sankaran Venugopal v. Mujo Sefa, & Ors (1998) SC592, per Amet CJ, Kapi DCJ, Los J (as they then were).
(d) Proper cases for direct application of s 57
61. Having regard to the foregoing discussions, I am of the view that a proper province for direct application for an enforcement of one’s human rights would be cases in which a person’s human rights are being violated or are likely to be breached and there is:
(a) no existing or concluded court proceeding arising out of the same factual background; and
(b) a complete lack of known process and procedure for the commencement of Court proceedings that would invoke the Courts jurisdiction to deal with all issues presented; and or
(c) the person whose rights are being breached or are likely to be breached is in no position to commence proceedings by him or herself; and
(d) there is a need for immediate intervention of the Courts, for the safety, welfare and protection of a human life.
62. Where these circumstances are presented, it would be appropriate for the provisions of s57 (1) to be invoked right away by a Court
or Judge acting on his or her own initiative or suo moto or on the application of anyone acting for the protection and enforcement of an affected or likely victim’s human right.
Cases falling in this category would be cases similar to the matter of Re Miriam Willingal (supra) where a young female was offered as part of a compensation package by her clan or tribe. There, the victim was in no position
to personally seek an enforcement of her human rights. An individual and community rights advocacy organisation, ICRAF instituted
the relevant proceedings successfully for the enforcement of the victims’ rights. A similar situation would be cases in which
the domestic and international offence of human trafficking is being or about to be committed against an individual or individuals
who is or are taken captive or otherwise the person’s liberty is being curtailed without lawful excuse. Another situation
which could be closely related or connected to human trafficking would be cases in which a person is forced into rendering a form
of service to another against his or her will or consent and or without any just remuneration. These are kinds of case in which
the existing process, procedure and remedies could not be utilised but for the human rights enforcement application process: See
Uma More v. The UPNG (supra).
Present case
63. In the present case, the respondent at the relevant time was convicted and was serving an effective sentence of 24 years for serious violent offences of murder, armed robbery, arson and deprivation of the liberty of the victims of his offences. He committed these offences in the company of others which made it even more serious. Additionally, he had been convicted of possession of a dangerous drug whilst in prison.
64. In 2017 the respondent made a complaint of unreasonable detention and a Human Rights Application. His stated basis for the application was that the CIS officers had not taken him to the Kimbe hospital for treatment for his TB. That statement however differed from the statements in his undated supporting affidavit.
65. The respondent did not produce any evidence of having given notice to the State of his intention to make a claim, as required by the Claims By and Against the State Act per ss 2 and 5, prior to filing his human rights application.
66. In 2018 the learned primary Judge determined the application on the basis that it was “an application for enforcement of human rights, specifically... for early release from custody on medical and humanitarian grounds.’ He found that ‘continuing to be detained in the difficult conditions at Lakiemata jail that he has been enduring for many years’ would be a breach of his human rights, namely, ss 36(1) and 37(1) of the Constitution. Accordingly, the learned primary Judge ordered the respondent’s early release from custody for the purpose of enforcing his Constitutional rights and ordered further that the respondent be released forthwith and he be deemed to be on parole until the end of the period of his sentence, subject to conditions.
67. I find this, with respect, was clearly an erroneous decision and an erroneous exercise of the powers under Constitution ss 57 (1) and (3). I have come to that view for a number of reasons. Firstly, the respondent was convicted and sentenced for multiple serious offences. The only way for him to have his convictions and sentences revisited or reviewed was by him exercising his right of appeal or review of both those decisions. He chose not to exercise any of these rights. In the absence of any explanation to the contrary, the respondent may have decided not to exercise that right by reason of the fact that he got away with a soft concurrent and effective sentence of 24 years for offences that separately attracted life imprisonment and terms of years for other offences. Before deciding to order the respondent’s early release, the learned primary Judge was obliged and duty bound to take into account the nature of the offences the respondent committed, was found guilty of and for which he was sentenced through the criminal justice process which finally resulted in his convictions and sentences. The primary Judge failed to note and take into account the fact that once the respondent chose not to question his convictions and sentence and thereby accept the relevant decisions, that finally concluded the criminal process. Consequently, the only correct way to have the respondent’s sentence revisited including how he was treated in prison and the opportunity to be released earlier, was through any of the prescribed legal processes.
68. The prescribed legal processes include the process under the Parole Act 1991, or through the power of mercy process under s151 and s152 of the Constitution and the Organic Law on the Advisory Committee on the Power of Mercy, or the process of being released on licence under s 615 of the Criminal Code Act and or the Correctional Service Act 1995. As held by this Court in Re Application of Paul Tiensten (supra), the avenues open under any of these legislative processes needed to be first exhausted by the respondent. If he was not able to do that, then the “Visit” process under the CS Act should have been the correct process to trigger a Constitution s 57 (1) application. The primary Judge who was a member of the Court in Re Application of Paul Tiensten (supra) did not give any consideration to this. He was thus required to explain how it was possible to bypass these processes by the respondent’s application for an enforcement of his rights. The respondent committed multiple violent and serious offences and was appropriately dealt with under the law by the relevant authorities. Caution and care had to be exercised, but was not.
69. Secondly, the primary Judge was duty bound to consider the factors the sentencing Judge took into account before imposing the concurrent sentence and the respondent’s failure to appeal or seek a review of his conviction and sentence and the effect of that failure, which was that the respondent accepted the sentence. Further, in that context, the primary Judge was obliged to take into account and note the fact that, even in cases of an appeal against a primary Judge’s decision on a verdict and or sentence, there is generally a reluctance of an appellate Court in readily interfering with a trial Judge’s decision except in the clearest of cases of an error or miscarriage of justice being made out: See Simon Kama v. The State (2004) SC740, per Sevua, Kandakasi and Lenalia JJ (as we then were). That being the case, the primary Judge was duty bound to carefully explain how he was able to assume jurisdiction and effectively set aside the various convictions and sentences for multiple serious offences outside a proper appeal and review of the decisions, by ordering an immediate release of the respondent. This, His Honour with respect failed to do.
70. Thirdly, I note the learned primary Judge also failed to note and take into account the law on a prisoner’s plea for leniency in sentences based on medical conditions. There is a string of National and Supreme Court decisions addressing this point. It is now clear law as represented by the decision of this Court in Thress Kumbamong v. The State (2008) SC1017, Salika, Kandakasi (as we then were) and Yagi JJ that:
“It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This was made clear by this Court’s decision in Allan Peter Utieng v. The State,...which has been followed in a long list of National Court judgments including the recent decision in The State v. Danny Makao...
What this means is that, the medical conditions or other personal and family backgrounds and needs of an offender should not form any foundation for a lenient sentence unless, it is a case of life and death and no arrangements can be made administratively by the Correction Services for a prisoner with a medical condition to access and receive appropriate medical attention and treatment.”
(Underlining mine)
71. There is no clarity in this case as to when the respondent contracted his alleged medical condition of TB. If it pre-existed his sentence and imprisonment, there is no evidence of how the respondent had that condition treated prior to his commission of the multiple serious offences. Similarly, there is no evidence of the respondent raising the subject at his criminal trial and how the trial Judge treated that factor before sentencing him. If, however, the disease was contracted in prison, there had to be evidence as to when and how it was contracted and there had to be evidence of what steps the CS took or should be taking to remedy the situation before proceeding to take the most serious step of ordering the respondent’s early release. TB is a manageable disease. Careful consideration had to be given as to how the respondent’s condition could not be properly managed by both the CS and the Kimbe General Hospital or any other medical establishment and that the only option was to have the respondent released. Carefully going through the records of proceedings before the primary Judge does not reveal any careful consideration of these factors before arriving at the decision to order the respondent’s early release.
72. Fifthly, the primary Judge was duty bound to take into account public policy considerations that underpin the criminal justice system, law and order and law enforcement in our country, as much as it is the case in other countries of the world. The Supreme Court in Doreen Liprin v. The State (2001) SC673, per Los J (as he then was) stated the relevant public policy consideration in criminal cases in the context of an appeal in the following terms:
“In relation to the appeal against sentence, the sentencing court must as a matter of broad policy weigh and consider the public policy i.e public concern over certain type of offences which to begin with would be reflected by the type and extent of penalty prescribed by the Criminal Code and the sentences that have been imposed by the courts.”
73. When an offender has been tried, convicted and sentenced, the public expects the offender to serve the full term of his or her sentence. This is necessary to serve the triple purposes of the public’s safety, ensure that the offender fully meets the legal consequences of his criminal conduct and deter the offender and others from committing similar or other offences. Thus, if an offender is to be released earlier than his or her due date of release through any of the prescribed means, namely, parole, or power of mercy or licence, each of the relevant prescribed authorities is required to take into account the relevant public policy considerations before arriving at a decision to have an offender released earlier than his or her due date of release. The Parole Act for example in s18 provides for the CS Commissioner to provide a report for the purposes of a prisoner who is eligible for parole under s 17 (1) of the Act for the Parole Board’s consideration. Section 20 provides a long list of information to be captured in the CS Commissioner’s report. Relevantly, s 20 (2) stipulates:
“(2) The report of the Commissioner under Subsection (1) shall contain the following particulars in respect of the detainee:
(a) an assessment of character and history during detention; and
(b) a report of a medical examination held within the previous three months; and
(c) a recent assessment by a psychiatrist or welfare officer; and
(d) where it is appropriate and available, a report of a resident or visiting chaplain; and
(e) details of any money, including wages, due to him; and
(f) an assessment of his attitude to the offence and to any victim of the offence; and
(g) a summary of progress while in detention, including a resume of achievements in academic and technical skills, and involvement in social, recreational and religious activities; and
(h) an assessment of relationships with other detainees and correctional institution staff; and
(i) an assessment of co-operation, behaviour and general attitude while in detention; and
(j) details of proposed plans, particularly in respect of education and training, employment, proposed housing, community and church involvement; and
(ja) if the detainee has been transferred from his point of origin, proposed plans for repatriation prior to release on parole; and
(k) where the report is made in respect of an application for parole under Section 22, details of any apparent changes in behaviour and attitude since parole was refused.
(Underlining mine)
74. A Parole Officer is also required to do a report. Section 20 (3) stipulates as to what must be in such a report, as follows:
“(3) The report of the Chief Parole Officer under Subsection (1) shall contain the following particulars in respect of the detainee:
(a) an assessment of character and history;
(b) previous convictions (if any);
(c) an assessment of his attitude to the offence;
(d) any matters of custom relevant to the offence committed;
(da) a victim impact statement; and
(e) particulars of any disputes or disruptions within the community which have arisen as a result of the commission of the offence or which may be likely to arise if he is released on parole;
(f) the amount and nature of any compensation paid in relation to the offence;
(g) an assessment of the likelihood of his reoffending if he is placed on parole;
(h) an assessment of the probability of his successful reintegration into the community if he is released on parole;
(i) an assessment of his rehabilitation plans, particularly in respect of education and training, employment, proposed housing, community and church involvement, and the likelihood of future employment and education;
(j) an assessment of his financial situation, assets and property, family circumstances and marital status;
(k) any other particulars which the Chief Parole Officer thinks relevant in assisting the Board to decide whether to grant or refuse parole;
(l) where the report is made in respect of an application for parole under Section 22, details of any apparent changes in behaviour and attitude since parole was refused.
(Underlining mine)
75. Flowing on from the fifth reason, sixthly, the decision of the primary Judge in my respectful view, assumed and usurped the powers of the Parole Board when he deemed the respondent to be on parole. That decision was not authorised by any provision of the Parole Act or even s 57 (1) of the Constitution. As indicated, the powers under s 57 in the words of subsection 6, were in addition to and not in derogation of what was provided for in the Parole Act and the system provided for in that Act under our Constitutional system and process. This the primary Judge did without meeting the requirements for a report from the CS Commissioner and a Parole Officer touching the pertinent and critical factors required by s 20 (2) and (3) of the Parole Act, which I have underlined above. Also, after having usurped the Parole Board’s powers, the learned primary Judge erred in failing to take into account the factors set out in s 20 (2) and (3) and satisfy himself that the respondent had:
(a) a good character with a good history of his conduct during his detention; and
(b) a report of a medical examination held within the previous three months; and
(c) a recent assessment by a psychiatrist or welfare officer; and
(d) an assessment of his attitude to the serious offences he committed and his attitude to any victim of his serious offences and the views of the victims of the multiple serious offences; and
(g) a summary of progress while in detention, including a resume of achievements in academic and technical skills, and involvement in social, recreational and religious activities; and
(h) an assessment of relationships with other detainees and correctional institution staff; and
(i) an assessment of co-operation, behaviour and general good attitude while in detention; and
(j) details of proposed plans, particularly in respect of his residence and receiving further treatment for his alleged TB.
76. Seventhly, given the most violent multiple crimes the respondent committed against his victims in particular and society generally, the primary Judge had the duty to satisfy himself that the respondent will not re-offend and that it was safe to have him released well before his due date of release. Flowing on from that failure, the learned primary Judge with respect, also failed to take into account how the early release of the respondent was not an afront to law enforcement. By the same token the learned primary Judge with respect, further failed to consider at all how the victims of the respondent’s various offences would view the order for early release outside the proper appeal and review process. Similarly, he additionally failed to consider what message would the decision for the respondent’s early release send to the community and in particular how it would deter others from offending. Simply put, the learned primary Judge with respect, gave no consideration to the public policy considerations and the public or society’s interests.
77. Finally, the powers under s 57 of the Constitution cannot and should not be exercised in isolation but in proper context, particularly when an order such as the one in this case is to be made. The well-known principle which requires those who come to justice must do so with clean hands, equally applies here. This means the respondent’s whole conduct leading to his imprisonment, his behaviour and attitude whilst in prison and the other factors outlined in s 20 (2) and (3) of the Parole Act, had to be carefully considered as against the vast majority of law-abiding citizens who had similar medical needs to that of the respondent, and why effectively a violent convicted prisoner should have priority over the majority of law-abiding citizens.
78. For these reasons, the decision the subject of this proceeding cannot be allowed to stand, and should neither be encouraged nor allowed to be repeated in future.
Notice under s 5 of CBASA
79. Finally, on the question of notice under s 5 of the CBASA, the law is clear. In respect of human rights s 2 (2) and s 5 clearly state:
“2. Suits against the State.
...
(2) The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.
...
5. Notice of claims against the State.
(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.”
80. No doubt by virtue of s 2(2), the provisions of s 5 (1) apply to all applications for enforcement of a human right against the State. This is understandable, given the purpose and object of the notice requirement. A long list of Supreme and National Court decisions clearly speaks of that purpose and object. An example of a decision on point is this Court’s decision in Rawson Construction Ltd v. Department of Works (2005) SC777, per Sawong (as he then was), Kirriwom and Kandakasi JJ (as I then was), where the Court held:
“The law is trite that, no claim can validly proceed against the State without meeting the notice requirements. Many judgments of both this and the National Court clearly show that, the requirement for notice is a condition precedent, without which there can be no claim: see Paul Tohian, Minister for Police and the State v. Tau Liu...and Daniel Hewali v. Papua New Guinea Police Force & The State...The reason for this was as explained by Kandakasi J., in the latter case as follows:
‘That reason is simply that, both the MVIT and the State are themselves not necessarily responsible for that which gives rise to a claim against them. They instead become responsible or liable by reason of the law. In the case of the MVIT it is because of the MVIT Act and in the case of the State, it based on the principles of common law in some cases and in other cases based on statute. In most cases, they do not have any personal involvement and knowledge of matters giving rise to a cause of action against them. Of course, common law does not override any statutory law. Instead, under our hierarchy of laws as set out in s.9 of the Constitution, the principles of common law are subject to any relevant Act of Parliament.’”
81. This renders the obligation to give prior notice of one’s intention to make a claim before making the actual claim, critical, and is very important under the threat of one having no cause of action to pursue against the State or the Motor Vehicles Insurance Trust, now Motor Vehicles Insurance Limited. Given that importance a Judge who is invited to invoke Constitution s 57 powers, is duty-bound to ensure the notice requirements have been met before assuming jurisdiction and dealing with such an application, unless he or she is acting suo moto. Also, given that importance and as made clear by a number of this Court’s decision such as the ones in Bluewater International Ltd v. Roy Mumu (2019) SC1798, Kandakasi DCJ, Pitpit and Dingake JJ and the decision in Michael Keka v. Pius Yafaet (2018) SC1673, per Collier, Neill and Liosi JJ, the Court can raise the issue of notice if neither of the parties fail to do so.
82. In the present case, the Appellant did not raise the issue because the learned primary Judge had in the past repeatedly rejected outright, arguments based on ss 2(2) and (5) of the CBASA. That marked in effect, the learned primary Judge permitting a serious breach of the provisions in question and effectively allowed a proceeding that was precluded as a matter of law. It also constitutes an erroneous refusal to recognise and uphold the purpose and object of the notice requirements. However, since the point was not argued on its merits between the parties’ in this Court, I am not prepared to allow this apparent error to have any effect on the ultimate outcome of the appeal.
83. THOMPSON J: FACTS: In 2006 the respondent was convicted of murder, and sentenced to 25 years of imprisonment, which became 24 years after deductions. No part of the sentence was suspended. He did not lodge any appeal or application for review of that sentence.
84. In 2009 the respondent was further convicted of multiple charges, and sentenced to 35 years imprisonment. Fifteen (15) years was conditionally suspended, and the balance of 20 years was ordered to be served concurrently with the earlier 25 years sentence. He did not appeal or apply for review of that sentence.
Grounds of Appeal
Findings
“It cannot mean the dispensation of justice in accordance with some notion of what is thought to be fair and reasonable, to the exclusion of the stated intention of Parliament. In our opinion, the section means justice according to law...”
(Delba Biri v Bill Ninkama, Electoral Commission, Bande and Palumea [1982] PNGLR 342.)
1. The Appeal is upheld.
Fundamental rights under ss 36, 37(1) and 37(17) of the Constitution
“(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.”
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
...
(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
“...all persons in our country are entitled to the fundamental rights and freedoms of the individual,...but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:—
(a) life, liberty, security of the person and the protection of the law; and...
(c) freedom from inhuman treatment and forced labour...
and have accordingly included in this Constitution provisions designed to afford protection to those rights and freedoms, subject to such limitations on that protection as are contained in those provisions, being limitations primarily designed to ensure that the enjoyment of the acknowledged rights and freedoms by an individual does not prejudice the rights and freedoms of others or the legitimate public interest.”
“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.”
“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... 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...
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?”
“s 37(1) means that if a particular action or conduct against or in relation to or affecting a person is not permitted by or according to the law, then that person may claim that his “right to the full protection of the law” has been breached. It also means that if there is a law/principle of law, regulation, rule etc. that governs or regulates particular conduct or action, and that law is breached or not complied with, the person aggrieved by that conduct or action can claim that his “right” to “the full protection of the law” has been breached, and under ss 57 and 58 he can seek “protection” from the Courts, in the form of damages or an order compelling the offending party to comply with the requirements of the particular law that affords “full protection” to the person aggrieved...”
The Rights of Prisoners
"Of all the rights and freedom guaranteed by the Constitution of PNG, the ones relating to those who are detained by the authorities require, in my opinion, the most protection. I hold no qualms about this - a person deprived of his ordinary rights and freedom is restricted, by virtue of being confined, from communication with the outside world. It rests with the authorities such as the Courts to ensure that they are protected and their rights respected. Constitutional guarantees are of no effect if judicial officers and other authorities do not do their duty.
Days have gone when people can say that those incarcerated lose their liberties and freedoms once the prison doors have closed behind them. The Constitution has made sure that such attitudes do not obtain in Papua New Guinea."
Section 57 of the Constitution
“(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
(2) For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.
(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”
Application
“ongoing and persistent medical ailments due to difficulties in managing his tuberculosis... it would indeed be a breach of his human rights to require him to continue to be detained in the difficult conditions at Lakiemata jail that he has been enduring for many years”.
“application for early release from custody is granted pursuant to Sections 57(1) and (3) of the Constitution, to enforce the human rights of the applicant, namely the right to freedom from inhuman treatment under Section 36(1) of the Constitution, the right to full protection of the law under Section 37(1) of the Constitution, and the right to be treated with humanity and with respect for the inherent dignity of the human person under Section 37(17)”.
“A detainee has a right to reasonable medical care and treatment consistent with community standards and necessary for the preservation of health including, with the approval of the Departmental Head of the Department responsible for health matters but at the expense of the detainee, a private medical practitioner.”
Decision and Orders of the Court
__________________________________________________________________
Office of Solicitor General: Lawyer for the Appellant
Office of the Public Solicitor: Lawyer for the Respondent
[1] This is based on a number of learned authors work namely: Marc Galanter, Snakes and Ladders: Suo Moto Intervention and the Indian Judiciary, FIU Law Review, 2014, Vol. 10 N0. 1, Art. 8; and Aman Ullah, Public Interest Litigation: A Constitutional Regime to Access to Justice in Pakistan, located at http://pu.edu.pk/images/journal/studies/PDF-FILES/Article_12_v19_2_18.pdf
[2] Article 3, European Charter for Human Rights provides that “No one shall be subjected to torture or to inhuman or degrading
treatment or punishment”.
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