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Independent State of Papua New Guinea v Tamate [2021] PGSC 54; SC2132 (30 July 2021)

SC2132

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA NO. 161 OF 2017


BETWEEN
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant


AND
HON. DAVIS STEVEN in his capacity as the ATTORNEY-GENERAL OF PAPUA NEW GUINEA
Second Appellant


AND
JIM WALA TAMATE in his capacity as the PUBLIC SOLICITOR OF PAPUA NEW GUINEA
First Respondent


AND
PONDROS KALUWIN in his capacity as the PUBLIC PROSECUTOR OF PAPUA NEW GUINEA
Second Respondent


AND
MICHAEL WAIPO in his capacity as the COMMISSIONER OF THE CORRECTIONAL SERVICES
Third Respondent


AND
IAN AUGEREA in his capacity as the REGISTRAR OF THE NATIONAL COURT AND SUPREME COURT
Fourth Respondent


Waigani: Kandakasi DCJ, Manuhu, Makail, Kariko & Miviri JJ
2020: 18thJune
2021: 30th July


CONSTITITIONAL LAW – Interpretation of – principles governing – settled law - the fair, large and liberal approach to interpretation of the Constitution and other statutory provisions is to be adopted – Constitution s. 158 (2) and schedule 1.5.


CONSTITUTIONAL LAW - Power of National Court to commence proceeding on its own initiative for the protection or enforcement of human rights – National and Supreme Courts expressly authorised – nature of power – in addition to and not in derogation of other powers and functions and authorities – inquiry as a mode of proceeding not intended but the adversarial process – use of human rights enforcement proceedings outside the criminal process not authorised - Constitution – Section 57.


HUMAN RIGHTS – Application for enforcement of - practice and procedure – commencement of proceeding by National Court on its own initiative – Procedure to be adopted – case management process and procedures to be incorporated - Mode of proceeding – National Court Rules –Order 23, rule 8 – Form 126.


JUDGEMENTS & ORDERS – Earlier decisions of the Supreme Court - effect on itself – not necessarily binding – departure from – principles governing – need for certainty and avoidance of chaos – earlier decision incorrectly interpreting and misunderstanding the law – need for correction - Constitution - schedule 2.9 (1)


Facts


The National Court, on its own initiative, commenced and conducted an inquiry under Section 57(1) of the Constitution for the protection and or enforcement of the human rights of several prisoners sentenced to death. The primary judge held that Section 57(1) conferred power on the National Court to commence proceeding on its own initiative and that he was not bound to follow the Supreme Court decision in The State v. Transferees (2015) SC1451 the Transferees Case. That decision held a contrary view, which the primary judge held was obiter dicta and hence not binding on him. The inquiry established that there were fourteen prisoners who have been sentenced to death and were awaiting execution. Out of fourteen prisoners, five had no Supreme Court appeals or reviews pending and nine were awaiting completion of their Supreme Court appeals or reviews. The primary judge held that there were breaches of rights of prisoners under Sections 36, 37 and 41 of the Constitution. The primary judge also declared the National Executive Council (NEC) had failed to facilitate appointments of members of the Advisory Committee on the Power of Mercy (ACPM). Consequently, the primary judge, ordered firstly, the NEC to facilitate the appointment of such members and secondly, ordered a stay of execution of all death penalties. The appellant appeal raising three grounds of appeal claim the learned trial judge erred in; (1) initiating and conducting an inquiry contrary to s. 57 of the Constitution; (2) assuming jurisdiction against the decision in the Transferees Case by erroneously holding that decision was obiter dicta; and (3) finding breaches of the prisoner’s rights without any evidence and facts establishing any such breaches.


Held:


  1. (By Kandakasi DCJ, Manuhu, Makail and Miviri JJ) - Section 57 (1) and (3) of the Constitution empowers the National Court or the Supreme Court or any other Court established for that purpose to commence proceedings for the protection or enforcement of a person’s basic human rights on its own initiative in cases where there is an actual or imminent or there is a reasonable probability of infringement of the guaranteed rights and freedoms of a person.
  2. (By Kandakasi DCJ, Makail and Miviri JJ) - The decision of the Supreme Court in The State v. Transferees (2015) SC1451, is obiter dictum and is therefore not binding.
  3. (By Kariko J, dissenting) - The Supreme Court decision in The State v Transferees (2015) SC1451 regarding jurisdiction of the National Court to conduct an inquiry under O23 r8 of the National Court Rules is ratio decidendi and not obiter dictum, and is therefore binding on the National Court.
  4. (By Kandakasi DCJ, Makail and Miviri JJ) – The power of the National Court to protect or enforce any actual or imminent or reasonably probable infringement of the guaranteed rights and freedoms of a person by an order and/or declaration under s. 57(1), (3) and (6) of the Constitution is not absolute or unlimited but is, in addition to, and not in derogation of, its jurisdiction, powers and functions vested in it and other authorities under any other provision of the Constitution, an Act of Parliament or any other law.
  5. (By Kandakasi DCJ) – The decision in The State v. Transferees (2015) SC1451 on the question of the National Court’s jurisdiction to act on its own initiative is contrary to the expressed authorisation by s. 57 (1) of the Constitution, it does not correctly represent the law on this point and is therefore not binding.
  6. (By Kandakasi DCJ and Miviri J) - Section 57(1) of the Constitution authorises a normal adversarial court proceeding with case management processes and procedures but not inquiries as in the case of commission of inquiry which is more inquisitorial and is one which requires expressed legislative authorisation. The decision in The State v. Transferees (2015) SC1451 on this issue was approved.
  7. (By Kandakasi DCJ and Makail J) - Order 23, rr.8 and 11 of the National Court Rules briefly provides the procedure and form by which the National Court may commence a proceeding on its own initiative under Section 57(1). Form 126 of the National Court Rules is the relevant form to adopt to commence proceeding by the Court on its own initiative.
  8. (By Kandakasi DCJ) - Proceedings under s. 57 of the Constitution and O.23, r.8 of the HR Rules is civil in nature and as such are not available and cannot be utilised outside the criminal justice process and procedure. Any proceedings issued outside the correct criminal process in criminal cases would amount to an abuse of process of the Court. Eremas Wartoto v. The State (2015) SC1411 adopted and applied.
  9. (By Kandakasi DCJ and Manuhu J) – The decision in The State v. Transferees (2015) SC1451 declaring Order 23, rule 8 of the Human Rights Rules of the National Court Rules (HR Rules) was a unilateral decision by a judge arrived at in obiter dictum and is of no force and effect.
  10. (By Kandakasi DCJ, Kariko and Miviri JJ) – There was no proper factual basis for the learned trial judge to invoke O.23, r.8 of the HR Rules.
  11. (By Kandakasi DCJ, Kariko and Miviri JJ) – The evidence before the learned trial judge did not support his findings of breaches of the prisoners’ rights and the orders he eventually made.
  12. (By Kandakasi DCJ and Makail J) - The order to stay execution of the prisoners who have been sentenced to death was ultra vires the power conferred on the primary judge under Section 57(1), (3) and (6) of the Constitution.
  13. (By Manuhu, J, dissenting) - A judicial notice of a material fact or a letter of complaint or report by a person, including those named under Order 23 Rule 8, may warrant initiation of a section 57 proceeding by a court on its own initiative.
  14. (By Manuhu, J, dissenting) - Section 151 effectively creates a constitutional right for a prisoner, including a prisoner under sentence of death, to seek a pardon or other forms of reprieve and the Constitution clearly imposes a constitutional duty on the NEC to avail the exercise of that right to seek a pardon or reprieve to the prisoners under sentences of death.
  15. (By Manuhu dissenting) - Contextually, the executive branch has continuously failed its constitutional duty for 17 years since the first prisoner was sentenced to death, for 24 years since the reintroduction of the death penalty in 1991 and for 45 years since Independence Day to install the Advisory Committee.
  16. (By Manuhu J, dissenting) - Five years is a reasonable benchmark and, on that basis, it is now too late to carry out the sentences of death on the prisoners in question.
  17. (By the majority) - Grounds 1 (b) and 2 of the appeal was upheld with the result that the decision and orders of the National Court appealed against was quashed and set aside.

Cases Cited:
Papua New Guinea Cases:


The State v. Kenneth Kunda Siune (2021) SC2070
Morua v. China Harbour Engineering Company (PNG) Ltd (2020) N8188
SC Reference No. 1 of 1977 [1977] PNGLR 362
Uma More v. The University of Papua New Guinea [1985] PNGLR 401
Re Miriam Willingal [1997] PNGLR 119
The State v. Transferees (2015) SC1451
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
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
Ilai Bate v. The State (2012) SC1216
Don Polye v. Jimson Papaki & Ors (2000) SC637
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
Paru Aihi v. Peter Isoaimo (2013) SC1276
Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205
Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628
Morea v. The State (2020) SC1957
Behrouz Boochani v. The State (2017) SC1566
National Narcotics Bureau v. John Patrick Nauro (2015) SC1480
Inakambi Singorom v. John Kalaut [1985] PNGLR 238
PLAR No 1 of 1980 [1980] PNGLR 326
SCR No 1 of 2000 Re Validity of Value Added Tax Act (2002) SC693.
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
Eremas Wartoto v. The State (2015) SC1411
Rimbink Pato v. Anthony Manjin [1999] PNGLR 6
Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118
Pius Pundi v. Chris Rupen (2015) SC1430
Kumagai Gumi Co Ltd v. National Provident Fund Board of Trustees (2006) SC837
The State v. Stuart Fancy [1994] PNGLR 548
The State v. Robin Warren & Ors (2003) N2417
Takoa Pastoral Co Ltd v. Dr Puka Temu, Minister for Lands (2009) N3739
Telikom (PNG) Ltd v. Rava (2018) SC1694
Napanapa Landowners Association v. Logae (2016) SC1533
Kewa v. Kombo (2016) SC1542
Kalinoe v. Paul Paraka Lawyers (2014) SC1366
Amaiu v. Yalbees (2020) SC2046
Alex Awesa v. PNG Power Ltd (2019) SC1848
The State v. Clarence Tema Mongi (2007) N3259.
Acting Public Prosecutor v. Don Hale (1998) SC564
Philip Takori v. Simon Yagari & Ors (2008) SC905
Electoral Commission of PNG v. Kaku (2020) SC1950
Emmanuel Mai v Madang Development Corporation Ltd (2016) SC1576
Girigi Goasa Mose v. The State (2019) SC1804
Re Application of Paul Tiensten (2014) SC1343
Re Heni Pauta & Kenneth Susuve (No. 2) (1982) N337
Tom Amaiu v. The State [1983] PNGLR 87
Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581
Utula Samana and Samson Kiamba [1981] PNGLR 396
Waterboard v. NCD Interim Commission (1990) N868
Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266
Re lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886.
Re Fish Ban Application (2020) N8221
Amet v. Yama (2010) SC1064
Pauta v. Commissioner for Corrective Institutions [1982] PNGLR 7
Pauta and Susuve v. Commissioner for Corrective Institutions (1982) N337
Enforcement of Basic Rights, In re Section 57 Constitution of the Independent State of Papua New Guinea (2014) N5512
In the Matter of an Application for Enforcement of Human Rights pursuant to Section 57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218
Boateng v. The State [1990] PNGLR 342
Erebebe v State (2013) SC1228.


Overseas Cases


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
AON Risk Services Australia Limited v. Australian National University [2009] HCA 27
McBride v Monzie Pty Ltd [2007] FCA 1947
T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68
Pratt and Morgan v The Attorney General of Jamaica and another (Jamaica) [1993] UKPC 1 (2nd November,1993)
Wadsworth v. Lydall [1981] 2 All ER 401


Other Sources


Constitutional Planning Committee’s (CPC) Final Report
A Dictionary of Law by L.B. Luzon, Macdonald & Evans, 1979
Case Flow Management in the Trial Court by Maureen Solomon and Douglas K Somerlot (1987 edn, American Bar Association)
Oxford Dictionary of Law, 7th Edition


Legislation


Constitution
Supreme Court Act (Chp.37)
National Court Rules 1983
Organic Law on the Advisory Committee on the Power of Mercy
Criminal Code Act
Correctional Service Act 1995
Commission of Inquiry Act (Chp.31)
Architects (Registration) Act 1989
Civil Aviation Act 2000
National Court Act (Chp.38)
Parole Act 1991
Correctional Service Regulation
Claims By and Against the State Act 1996
Frauds and Limitations Act 1988
National Court Rules
Organic Law on the Advisory Committee on the Power of Mercy
Geneva Conventions Act, Chapter No. 84


Counsel


Mr. T. Tanuvasa with Mr. T. Mileng, for Appellants
Mr. L. Mamu with Mr. T. Ilaisa, for First Respondent
Mr. P. Kaluwin, for Second Respondent
No appearance, for Third Respondent
Mr. P. Ifina, for Fourth Respondent


JUDGMENT


30th July, 2021


  1. KANDAKASI DCJ: This is an appeal against a decision of the National Court which found there was a breach of the rights of several prisoners sentenced to death, declared there had been a failure by the National Executive Council (NEC) to facilitate appointments of members of the Advisory Committee on the Power of Mercy (ACPM) and ordered the NEC to: (1) facilitate the appointment of members of the ACPM; and (2) a stay of execution of all death penalties.
  2. The grounds of appeal claim, the trial Judge did not correctly assume jurisdiction; there was no breach of any human rights; and the Court did not have any basis to find there was a failure by the NEC to facilitate the appointment of the ACPM and order a stay of the prisoners’ executions.
  3. After we have heard and reserved on this appeal, this Court in The State v. Kenneth Kunda Siune (2021) SC2070, comprising of their Honours, Thompson and Berrigan JJ and myself, delivered its decision on 04th February 2021. That decision is relevant on some of the issues presented in the present case. However, since neither of the parties nor the Court raised that decision with the parties, I will proceed to judgment in the present case without any regard to that decision.
  4. I have had the benefit of reading the draft decisions of my learned brothers, Manuhu, Makail, Kariko and Miviri JJ. For reasons I will shortly get into, I agree with Makail J that the appeal should be upheld in part by upholding two out of the three grounds advanced for the appeal. For my decision, I adopt my learned brothers Makail and Kariko JJ’s statement of the relevant background and facts in this appeal. Where my decision on each of the grounds of the appeal is the same as those of my brothers, my views are in addition to those given by their Honours and where our decision is not the same, my views constitute the reasons for arriving at a different view.

Grounds of Appeal


  1. The grounds of appeal are:

“(1) His Honour erred in law:


(a) The National Court erred in commencing the proceedings under Order 23 Rule 8 of the National Court Rules as an inquiry into alleged breaches of human rights of prisoners sentenced to death as there had been no breaches of human rights of the prisoners concerned.

(b) The National Court erred in continuing and persisting on with the proceedings commenced under Order 23 Rule 8 of the National Court Rules inspite and despite of the challenge to jurisdiction made by the Principal Legal Adviser relying on the obiter but forceful decision by the Supreme Court in The Independent State of Papua New Guinea v The Transferees SC1451 which has declared Order 23 Rule 8 unconstitutional and invalidated the said Rule.

(2) His Honour erred in law and fact when he made the finding there has been “failure over an extended period on the part of the National Executive Council, to facilitate appointment of Members of the Advisory Committee on Power of Mercy and to provide it with staff and facilities. The Committee has been defunct, leaving all prisoners sentenced to death with no effective opportunity to involve their right to full protection of the law by applying for exercise of the Power of Mercy” as this was contrary to the evidence and submission on the law, process and procedure on clemency under Papua New Guinea law.”

Questions for resolution


  1. In my view, these grounds of appeal give rise to the following questions:
  2. Of these questions, the second one concerns the learned trial Judge’s jurisdiction to deal with the matter in the way he did. Since the question of jurisdiction of a Court to deal with any matter goes into the core of any proceeding before a Court, it is necessary to deal with that question first. Accordingly, I turn to consider the second question first.

Did the National Court err in assuming jurisdiction and dealing with proceedings under O. 23, r 8. of the NCR when this Court in The Independent State of Papua New Guinea v. The Transferees (2015) SC1451 declared O. 23, r. 8 unconstitutional and invalidated? (Ground (1)(b) of the Appeal)


  1. When it comes to the enforcement of human rights in our country, the starting point is always s.57 of the Constitution. That provision reads:

“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.”

(Underlining mine)


  1. As I said in my decision in the National Court in Morua v. China Harbour Engineering Company (PNG) Ltd (2020) N8188 (Morua v. China Harbour) that the following amongst others is clear from s.57 itself:

“(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...”


  1. Thereafter, I considered the Constitutional Planning Committee’s (CPC) report. I noted that the Committee recommended the inclusion of this provision after a careful consideration of the experiences of other countries as well as the factors for and against having such a provision. In the Committee’s own words at paragraph 116 of Ch.5, Part 1, p.18 it said:

“On balance, we have concluded that the human rights provisions should be enforced by the courts. We have recommended not only the Supreme Court, but the National Court and District Court (or Provincial) Courts should be able to decide such cases. 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)


  1. As I noted in Morua v. China Harbour, Frost CJ in SC Reference No. 1 of 1977 [1977] PNGLR 362 at pp.366-368 summed up the provisions of section 57 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))”


  1. After giving due consideration to the provisions of s. 57, what the CPC said and decision of the Supreme Court in SC Reference No. 1 of 1977, I concluded at [24 and 25]:

“...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.


...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, for the action must concern, actual, imminent, likely or a 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.”


  1. I then went into a detailed consideration from paragraphs 26 to 34 of the cases in which it was held that the National Court could or did in fact act on “its own initiative” or suo moto. That started with the decision of this Court in Uma More v. The University of Papua New Guinea [1985] PNGLR 401 (per Pratt, Amet and Los JJ (as they then were)) to Re Miriam Willingal [1997] PNGLR 119 (per Injia J (as he then was)). Thereafter, I concluded at [35]:

“Based on these cases, we could safely come to the conclusion that the ability of the National Court or Judges with the endorsement of the Supreme Court in Uma More (supra) to act on their own initiative under s. 57 of the Constitution for the protection or the enforcement of the human rights is a well-established position in PNG. That ability to act on “its own initiative” comes to play either within a proceeding already before the Court as in the Uma More case or on a totally new court proceeding the Court itself initiates as did the National Court in the many cases I have already referred to.”


  1. At the same time, I noted that, the only decision that has gone against that accepted position was the decision of this Court in The State v. Transferees (2015) SC1451 (per Sakora, Gavara-Nanu and Ipang JJ.). In respect of that decision, I arrived at the view that the decision was obiter dictum because as Gavara-Nanu J himself admitted, the issue of the Court’s jurisdiction was not an issue raised by either of the parties in the proceeding but raised by the Court. Based on authorities such as Mathias Goma v. Protect Security & Communication Ltd (2013) SC1300, Philip Kikala v. Electoral Commission (2013) N4960 and The State v. Jimmy Ketu (No 2) (2007) N3394, I expressed the view that the decision was not binding.
  2. Even if the decision in the Transferees Case was not obiter dictum, I expressed with the greatest of respect, difficulty in accepting the decision as good law. My reasons in summary were:
    1. Of the three judges constituting the Court, only Ipang J, considered the meaning of the phrase “on its own initiative” as used in s. 57 (1) of the Constitution in the following way:

“The phrase “on its own initiative”, what does the phrase really mean? The Concise Oxford Dictionary Tenth Edition Ed. by Judy Pearsall defines the word “initiative” 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.”


Unfortunately, with respect, his Honour did not apply the meaning of the phrase to the case before him. His Honour also did not say what that meant in the context of the whole of the provision as well as the purpose or objective of having this provision, which His Honour also did not give any consideration to.


  1. His Honour, Gavara-Nanu J., considered the meaning of the word “initiative” and decided what that meant in the following terms:

“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.”


His Honour cited a few cases, namely the decisions in Constitutional Reference No. 1 of 1977 (supra), 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 and Ors [1981] PNGLR 396 and a few more. With the greatest of respect however, those cases did not deal with the question of a court, or a judge initiating proceedings to enforce or protect human rights. Also, with respect, his Honour did not give any consideration to the purpose and or object of having s. 57 in the Constitution. Similarly, his Honour did not contextualise the word “initiative” as used within the meaning of s. 57.


  1. Both their Honours, Gavara-Nanu and Ipang JJ., with all due respect, did not give any consideration to the decision of the Supreme Court in Ume More’s case.
  2. Similarly, their Honours Gavara-Nanu and Ipang JJ, did not have any regard to the various National Court decisions which invoked the provisions of s. 57 of the Constitution on the Court’s own initiative. 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, statutory provisions empower the Courts to do so by use of the phrase “on its own initiative or on application by any person” as it appears in s. 57 of the Constitution and s. 28 (1) of Supreme Court Act (Chp.37 and 5 Rule 8(1) of the NCR. There is no recorded controversy over the application of such provisions. Instead, we have cases in which the provisions have been applied. I cited several decisions of this Court, namely Ilai Bate v. The State (2012) SC1216 (Injia CJ, Cannings J, Gabi J); Don Polye v. Jimson Papaki & Ors (2000) SC637, Rimbao v. Pandan (2011) SC1098, Mendepo v. National Housing Corporation (2011) SC1169, Francis Essacu Baindu v Joseph Jerry Yopiyopi (2019) SC1763 and PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126 as cases on point.
  3. There was nothing in their Honours’ judgment that showed, they noted that the power to act suo moto is not unique to PNG but an internationally accepted position in some countries such as Pakistan and India. I cited respectively their highest court’s decisions in The Human Rights Case (Environmental Pollution in Balochistan PLD 1994 SC and Hussainara Khatoon & Ors vs. Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3) 532.
  4. Looking at the cases on suo moto both locally and internationally I noted, they present several interesting features in almost all the cases that have invoked the suo moto powers of the courts and noted in particular:

“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.”


  1. This Court constituted as it is by 5 Judges is not necessarily bound by its own decision. It is settled law that for very good reason, the Court can depart from its earlier decision. In Paru Aihi v. Peter Isoaimo (2013) SC1276 (per Kandakasi J (as I then was) Hartshorn and Yagi JJ) stated that position at paragraph 23 in the following terms:

“As clearly stipulated in Schedule 2.9 (1) of the Constitution, this Court is not bound by its earlier decisions. However, that does not mean that, the Court can readily and easily depart from its earlier decisions as and when it wants to or feels like. Instead, departures are permissible for good reason and in keeping with the relevant principles governing departures.”


  1. I then considered the relevant cases on point including the decisions in Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205 (per Kidu CJ., Andrew, Kapi, Pratt and Miles JJ.) and in the Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628 (per Amet CJ., Kapi DCJ., Woods, Los, Sheehan, Sakora and Sevua JJ. as they then were). Kapi, DCJ., with whom, Sheehan, Sakora and Sevua JJ. agreed, restated the principles in these terms:

“As a matter of law, this Court is not bound by its own decision ... This Court has previously laid down the circumstances under which it may depart from its own decisions. In this regard I adopt what I said in Titi Christian v. Rabbie Namaliu & The State (a decision of the Supreme Court OS No.2 of 1995, dated 18 July 1996). In a developing jurisdiction such as ours, it is important to bear in mind two competing considerations. On the one hand, it is desirable to provide certainty in the law that is developed by the highest Court in the land. This consideration would support the approach that as far as possible, previous decisions of the Court should be upheld. On the other hand, many of the principles or provisions of the Constitution are being subjected to the scrutiny of the Court for the first time it is desirable to examine these decisions to ensure that they are correct and are based on sound legal reasoning. The Court is at the early stages of developing the law. No Court should simply follow or overturn a previous decision without examining the decisions carefully. There will come a time when it will be decided that the law is settled and therefore it cannot be further corrected by judicial act. It will then be difficult to overturn a previous decision in those circumstances. In the final analysis, the test is, whether, a previous decision is clearly wrong. The court should act to correct a wrong decision ...”

(Underlining mine)


  1. At paragraph 27 of my decision in the Aihi v. Isoaimo (supra), I summed up the principles enunciated by these decisions as follows:

“(a) the Supreme Court is not bound by its own earlier decisions;


(b) but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for its earlier decision;


(c) departures within a short space of time is undesirable and should not be encouraged; and


(d) departures are permissible only in exceptional circumstances where:


(i) the earlier decision clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction;


(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and


(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.


  1. The decision in the Transferees Case has been cited in the decision in Morea v. The State (2020) SC1957 (per Gavara-Nanu, Makail & Neill JJ); Behrouz Boochani v. The State (2017) SC1566 (per Injia CJ. and Salika DCJ. (as they then were) and Hartshorn J and National Narcotics Bureau v. John Patrick Nauro (2015) SC1480, (per Gavara-Nanu J, Kandakasi J (as I then was) and Yagi J). These citations were for principles other than the Court on its own motion initiating proceedings under s.57(1) for the enforcement or protection of human rights. This is the first time a 5-member Supreme Court is effectively invited to consider whether the Transferees Case correctly represents the law. The appellants wish us to affirm the correctness of the decision in the Transferee case, whilst the respondents argue against it.
  2. The appellants who are arguing for the correctness of the decision in the Transferees Case, had the obligation to present convincing reasons for us to accept the soundness or the correctness of that decision. With the greatest of respect to counsel representing the appellants, they failed to present any argument and reason which warrants a reconsideration of all or any of the reasons I gave (summarised above) in support of the view that the Transferees Case does not correctly represent the law, in my decision in Morua v. China Harbour. During the hearing of this appeal, I tried unsuccessfully to get assistance on this point from counsel on both sides of the argument.
  3. Applying the principles governing any departure from an earlier decision of this Court, I note the Transferees Case was decided in 2015. Almost 6 years have now passed. None of the decisions which cited that decision have considered the correctness of the decision on the point in issue before this Court. This does not necessarily mean that the decision in the Transferees Case is incorrect and that this Court must easily and readily correct it. Instead, in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, this Court cannot readily and easily depart from its earlier decision. Rather, this Court must consider if exceptional circumstances are presented in that:

(1) the decision in the Transferees Case clearly misinterpreted, misconceived, mistook, or misunderstood the law which requires correction; and or

(2) the law pronounced or stated in the Transferees Case is no longer appropriate and applicable to the current prevailing circumstances and needs of the country.


  1. For the reasons I gave in the decision in Morua v. China Habour and now summarised above, the decision in the Transferees Case clearly misinterpreted, misconceived, mistook, or misunderstood the law on the power vested in the Courts to act on their own “initiative” or suo moto. That decision with respect, runs contrary to the expressed provisions of s.57 (1) of the Constitution. Also, with respect, that decision failed to take note and give reasons for arriving at a contrary view to the numerous earlier decisions which elaborated on the power of the Court to act on its own initiative. The law stated in the Transferees Case is therefore inappropriate and inapplicable to the current and prevailing circumstances and the needs of the country. Presently, there is a ready violation of people’s rights led by the Police Force resulting and some other authorities as well in addition to private actors. This calls for the judges and the courts to be vigilant and act appropriately for the protection of our people’s rights. The composition of this Court is more than those in the Transferees Case. Also, this 5-member Court does not include the Chief Justice, but it does include the next most senior Judge after the Chief Justice and a mix of other most senior and relatively junior Judges. The decision in the Transferees Case, misinterpreting, misconceiving, mistaking, or misunderstanding of the law and therefore running contrary to the intent and purpose of the provisions of s. 57 is obvious. This calls for correction by this Court.
  2. In my view, the discussion in the foregoing states the correct position at law as to the meaning and application of the provisions of s. 57(1). In short, both the National Court and the Supreme Court has the power to commence proceedings on their own initiative or act in their own initiative within proceedings already filed by a party and is pending before either of the Courts or proceedings commenced by a judge or a court own its own initiative for the protection and enforcement of a human rights. That power is not derived from any case law or O. 23, r. 8 of the HR Rules but from the highest law of the land, by s. 57(1) of the Constitution. The rules and case law can only validly provide for and facilitate an orderly exercise of the power that is already vested in the courts in appropriate cases but not to run in direct contradiction with the clearly stated and expressed law.

Decision on ground (1)(b) of the appeal


  1. For these reasons, I answer question 2 in the negative only in respect of the question of whether the learned trial Judge was empowered by s.57 (1) of the Constitution to initiate the proceeding that led to this appeal. However, did the learned trial Judge correctly conduct the proceeding and was correct in making the orders he made remains to be answered. That is the subject of question 1 or ground 1 (b) of the appeal. Conveniently, therefore, I turn to a consideration of that question now.

Did the National Court err in commencing and conducting under O. 23 r.8 of the NCR an inquiry into alleged breaches of human rights of prisoners sentenced to death when there were no breaches of any human rights of the prisoners? (Ground 1(a))


  1. Obviously, this question has two parts. The first concerns the way in which the learned trial judge conducted the proceedings or the nature of the proceeding and the second concerns findings of breaches of the prisoner’s human rights.

First part of ground 1 (a) - Nature of proceeding


  1. Turning firstly to the nature of the proceeding, I note the appellants are taking issue with the learned trial judge conducting the proceedings giving rise to this appeal as an inquiry. My learned brother Kariko J’s decision adequately covers this subject including, what the Transferees Case stands for on this point. I agree with his Honour and add a few comments of my own.

The relevant law on point


  1. In my humble view, the question presented can be properly considered and answered by considering and answering in turn the question, what kind of proceeding does s. 57 (1) of the Constitution provide for or contemplate? The answer to that question, in my view, is in s.57 (6) of the same provision. That provision reads:

“(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.”


  1. This provision has not been considered in any detail by any prior judgment of this or any other Court as at the time of this Court hearing the appeal. Hence, this Court now needs to consider the proper meaning and effect of this provision. The starting point of course, when it comes to an interpretation and application of a Constitutional provision is Schedule 1.5 of the Constitution itself, which states:

“(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.”

(Underling mine)


  1. Also, s.158 (2) of the Constitution is relevant. That provision stipulates:

“In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”


  1. These provisions have been the subject of both the National and Supreme Court’s considerations in numerous of their decisions or judgments. Taking its instructions from these constitutional provisions, the Supreme Court has settled the law on the interpretation and application of a constitutional provision. The settled law is that the fair, large and liberal approach to interpretation of the Constitution and other statutory provisions is to be adopted. Of course, the only exceptions to this are: (1) cases in which the words employed by Parliament is so plain or clear that no art of interpretation is required; and (2) areas in which the strict interpretation is required as in tax legislations. This Court has repeatedly made these points clear and have also applied the principles in many cases.
  2. One of the earliest decisions on point is the decision in Inakambi Singorom v. John Kalaut [1985] PNGLR 238 (per Kidu CJ, Woods and Los JJ.). There, Kidu CJ., speaking in the context of interpreting the provisions 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.” (Underling mine)


  1. As can be seen, the learned Chief Justice was not displacing the purposive interpretation rule urged by Wilson and Andrew JJ in PLAR No 1 of 1980 [1980] PNGLR 326, who advocated for the more liberal and purposive approach to statutory interpretation as against the narrow, strict, or conservative approaches. This approach has been widely accepted and it is now well settled that a fair, large and liberal meaning must be given to words used by Parliament in a Constitutional law or any other law: See for example SCR No 1 of 2000 Re Validity of Value Added Tax Act (2002) SC693.
  2. 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.
  3. For the purposes of ascertaining the intention or purpose for having any provision of the Constitution, regard is often had to the CPC’s Final Report. In this case, whilst I consider the provisions of s. 57 (6) of the Constitution is clear, it is important nevertheless, to have regard to the CPC’s intent and purpose for including s. 57 in our Constitution. Relevantly, the CPC at paragraph 116 of Ch.5, Part 1, p.18 of its report states:

“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)


  1. One of the earliest opportunities presented for this Court to consider the CPC’s report in the context of s. 57 of the Constitution was in Reference No. 1 of 1977 (supra) by Frost CJ. There, as I already noted and pointed earlier, the learned Chief Justice at pp.366-368 summed up the provisions of s.57 and what the CPC said.
  2. Additionally, the learned Chief Justice 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)


  1. Based on the foregoing, I summed up my understanding of the law in Morua v. China Harbour at paragraphs 24 and 25, which I reproduced fully at paragraph 12 above.
  2. Considering all the above and applying the principles governing how the various provisions of the Constitution must be interpreted, I am of the respectful view that, the words used by the legislature are very clear. That is to say, 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 phrases “and not in derogation of” and “are in addition to” add more clarity and emphasis that the jurisdictions and powers vested in the courts by s. 57 are only in addition to and does not remove, annul or restrict or limit the jurisdictions or powers already vested in the Courts or other authorities by other provisions of the Constitution or other legislation. In other words, this provision is not granting the courts a power that is overarching or one that overrides all other powers or jurisdiction vested in the courts and other authorities by the Constitution or other laws. Rather, the powers vested in the courts under s.57 are complementary to or are in addition to such jurisdictions and powers. Clearly therefore, in my humble view, s.57 does not grant or vest any power in any person, a judge or a 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.
  3. Such an interpretation or meaning is apparent from the meaning of the word “derogation.” That word is derived from the word “derogate” which most dictionaries define as “an exemption from or relaxation” from something. In the context of the law, the word means to “annul or restrict the strength of an obligation or right”: See A Dictionary of Law by L.B. Luzon, Macdonald & Evans, 1979.
  4. In practical terms how this would work out is obvious. Where a need for the enforcement of a person’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 (where either of these processes are available) against the primary decision. In a case where a breach or likely breach is after an appeal or review especially in a criminal case (where most of the human rights suo moto actions have been), such proceedings could be commenced under s.57 (1) of the Constitution with the aim and or objective only of checking and ensuring the relevant person or authorities vested with the necessary powers are functioning to address the actual or likely breaches of any human rights and not for the Court to assume the power or function vested in another authority and grant any other relief unless specifically and expressly authorised by law. In that regard, the process of parole under the Parole Act 1991, or exercise of mercy or pardon through the power of mercy process under s151 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 comes to mind. The Correctional Service Act 1995 is another legislation that also applies. These laws create and appropriately empower relevant authorities for each of these avenues and processes. The authorities are necessarily empowered amongst others to consider the public policy and other relevant 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, does 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 term of imprisonment or are concerned about their 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. Doing so 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.
  5. A good illustration on point, is the 5-member Supreme Court decision in Eremas Wartoto v. The State (2015) SC1411 (Eremas Wartoto), although s.57 (1) was not invoked and instead s. 155 (4) of the Constitution was. That decision resolved conflicting authorities. One line of authorities allowed for persons facing criminal charges to go to the courts with applications and takeout orders effectively interfering with and or stopping criminal proceedings in their tracks. The other line of authorities precluded such applications. Those who allowed the applications were contrary to the clear import of the decisions of the Supreme Court in Rimbink Pato v. Anthony Manjin [1999] PNGLR 6 and Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118.
  6. The appellant, Eremas Wartoto sought in the National Court through a separate civil action pursuant to s. 155(4) of the Constitution a permanent stay of criminal proceedings brought against him by the State which were pending also before the National Court in its criminal jurisdiction. That came after going through the committal process. The National Court’s crimes jurisdiction was at the point of mentioning the case and issuance of directions for further conduct of the proceeding. The 5-members of the Court of which I was one, in separate opinions came to a unanimous decision which held in short:
  7. The president of the Court, Injia CJ (as he then was) 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)


  1. His Honour thereafter 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, the learned Chief Justice 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)


  1. In our joint judgment, Sakora J (as he then was) and I went into a survey of the relevant case law on point. That included the decisions of this Court in Grand Somare v. Manek (supra) and the decision in Pato v. Manjin (supra) and as well as a string of National Court decisions. Thereafter, we discussed the various criminal process stages, and the avenues open to accused persons to seek a remedy for any breach of their rights from the point of arrest to appeals and or reviews following convictions and sentences. We then said:

“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 safeguards 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)


  1. Thereafter, we made several 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.


...

64. Hence, it would be an abuse of the process of the National Court and s. 155 (4) of the Constitution itself for an accused person to seek to invoke the civil jurisdiction of the National Court to effectively review criminal investigations and prosecutions, without first exhausting the remedies that are available under the District Court Act, the Criminal Code, and the National Court’s Criminal Practice Rules....”


  1. Late Kirriwom J who was one of the other members of the Court, agreed with the views expressed by the then Chief Justice and Sakora J and I. At the same time, his Honour made observations and discussions of his own on the criminal process and procedure and concluded that the appellant abused the process of the Court. His Honour then pointed out the aspects of abuse at paragraph 112 in these terms:

“When considered from this perspective, the inevitable answer is that the primary judge did not fall into any error when he refused the application for permanent stay of the appellant’s prosecution for criminal charges of misappropriation. There are number of reasons including:


(i) Criminal trial was hi-jacked since completion of the Committal Court jurisdiction after finding of prime facie case in which forum evidentiary issues supporting the charge or charges are weighed and determined.


(ii) Evidence contained in the committal depositions are only relevant for purposes of establishing prima facie case for committal court to examine and determine and that starts off or sets in motion a criminal trial on indictment.


(iii) Prosecution had no obligation to tender any evidence in the court below in response to the applicant’s application to permanently stay his prosecution when that was not the forum that would determine his guilt or innocence.


(iv) 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.


(v) 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 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.


(vi) This was not such a hopeless case without any prospect at all of even establishing a prima facie basis for criminal prosecution to lie, a determination of which had already been exercised by the committal court.”


  1. Finally, the final member of the Court, Her Honour Davani J (as she then was), came to the same conclusion. After considering discussions in several 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.”


  1. I note that the decision in Eremas Wartoto has been endorsed, approved and or applied by subsequent decisions of the Supreme Court. In Pius Pundi v. Chris Rupen (2015) SC1430 for example the Court said:

“... An accused person facing trial in criminal proceedings who commences civil proceedings in the same court for the purpose of obtaining a determination of questions of law or fact that are at issue in the criminal proceedings will almost invariably be regarded as having engaged in an unnecessary proceeding, giving rise to an abuse of process. This principle was recently affirmed by the Supreme Court in Eremas Wartoto v The State (2015) SC1411.”


Application of the law to the present case


  1. Applying the foregoing discussions to the case at hand, I note the judicial system we as a country adopted on independence as ably elaborated and discussed in the Transferees Case, is the adversarial system of justice. That system is, as pointed out by the decision in the Transferees Case, is markedly different from the inquisitorial system. If it were the intention of our founding fathers and the intention of the Constituent Assembly that adopted the Constitution to empower the courts for the purposes of enforcing or protecting human rights to depart from the adversarial system, provision would have been made expressly. Parliament instead chose the words as we find them in s. 57. The CPC did not consider it necessary to provide for inquiries under s.57 and accordingly it did not make any recommendation in that regard.
  2. That was so not out of ignorance on the part of the legislature. Instead, the legislature knows and understands that inquiries as opposed to the court process would be appropriate in certain circumstances. Accordingly, it has enacted for example the Commission of Inquiry Act, (Chp.31). That Act applies generally to all commissions of inquiries. Parliament has also provided for inquiries in several subject matter specific areas as in the case of s. 45 of the Architects (Registration) Act 1989 and or s.245 of Civil Aviation Act 2000. This must be contrasted with the courts’ function which is to hear the parties and come to a decision based on evidence they produce before it and the relevant law on point in all cases.
  3. The National Court’s HR Rules do not vest any power in the Court to conduct an inquiry. This is correctly so because as already mentioned, there is no specific provision made in the Constitution or an Act of Parliament for inquiries as opposed to a normal court process. All we have is O. 23, rr.8 and 11 of the HR Rules. These rules state respectively as follows:

“8 Commencement of proceedings by the court


(1) Where a Judge observes, or is informed by the Registrar or Sheriff or one of their officers, of a fact or matter which may constitute a breach of Basic Rights, the Court may commence proceedings on its own initiative.

(2) Where the National Court commences proceedings on its own initiative in accordance with Section 57 of the Constitution –

(a) the file reference shall be “HROI” and the responding party, if any, shall be called “the respondent”; and

(b) subject to this Rule, the originating process shall be in Form 126 or in such other terms as the Court considers appropriate.

(3) Nothing in these Rules derogates from the power and duty of the National Court under Section 57(1) of the Constitution to, on its own initiative, enforce the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution in an informal or such other manner that the Court thinks fit, especially in urgent cases where it is not practical to comply with formal requirements for commencement of proceedings.

(4) Where the Court exercises a power under Sub-rule (3), the Court shall ensure that as soon as the circumstances permit, not being later than seven days after the exercise of such power, an originating process in Form 126 or in such other terms as the Court considers appropriate is filed and served on the respondents.

....

11 Applications, motions and directions after listing


(1) Once a proceeding is placed on the Human Rights List, any application or motion regarding that proceeding shall be set for hearing before the Judge dealing with matters on the Human Rights List.

(2) Proceedings on the Human Rights List shall be set down for trial in accordance with the directions of the Human Rights List Judge, who may make such orders or give such directions under the Listings Rules as are appropriate to ensure the just, efficient and expeditious disposal of cases.”


  1. Of these two rules, I am mindful of the fact that his Honour, Gavara-Nanu J., in the Transferees Case, held O.23, r.8 unconstitutional. That was based on his Honour’s view that, the National Court or a Judge of that Court does not have any suo moto powers for the enforcement or the protection of a human right. For reasons already given, I found that finding with respect went against the clearly expressed authorisation by s. 57 (1) and a long list of case authorities confirming that. It would naturally follow therefore that, his Honour’s decision on the constitutionality of the O.23, r.8, with respect, was based on an incorrect interpretation or a misunderstanding and incorrect application of the law. Consequently, that part of the judgment is also incorrect and not good law. To that, I now add, two more important factors pointing to that incorrect understanding and incorrect outcome.
  2. The first factor is this. The matter before their Honours was an appeal against a decision of the National Court. It was not a constitutional reference. In other words, the constitutionality of the provisions of O.23, r. 8 was not raised in the normal way such as by way of a constitutional reference by any of the parties but was an appeal that did not raise this issue in any of the grounds or the arguments the parties’ presented. Secondly, that decision goes against what this Court said in Kumagai Gumi Co Ltd v. National Provident Fund Board of Trustees (2006) SC 837, per Injia DCJ, Salika J & Davani J (as they then were). There, the Court at paragraph 23 said on appeal against my disbanding at the National Court level, O.12, r.37(b) of the NCR:

“We are of the view that the Court erred in unilaterally disbanding r.37(b) of the National Court Rules on the face of clear and binding Supreme Court authority on this rule. We are of the view that whilst a judge of the National Court has power to waive or dispense with compliance with the rules of the National Court rules, (O.1 r.7), the judge has no power to amend, repeal, disband, or declare inappropriate and inapplicable a rule of the National Court Rules because it is delegated legislations made by the judges collectively, pursuant to their rule-making power under s.8 of the National Court Act (Ch. No. 38) and s.184 of the Constitution.”

(Underling mine)


  1. Order 23, r.8 of the HR Rules is a delegated legislation made by the judges collectively, pursuant to their rule-making power under s.8 of the National Court Act (Ch. No. 38) and s.184 of the Constitution. The learned judges who constituted the Court in the Transferees Case were part of the collective group of judges who promulgated the HR Rules. With the greatest of respect, the declaration by his Honour Gavara-Nanu that O.23, r.8 was unconstitutional was a unilateral act. That unilateral action as already noted, came without the prompting of any of the grounds of the appeal that was before the Court or any of the parties’ submissions or the issue properly put before the Court by way of a constitutional reference pursuant to Constitution ss. 18 or 19.

Decision on first part of ground 1 (a)


  1. For the foregoing reasons, I am of the view that O.23, r. 8 of the HR Rules continues to remain in force. That will continue to be the case until the judges collectively amend, repeal, disband or declare it inappropriate and inapplicable or a properly constituted Supreme Court specifically looking into the constitutionality of the provision in a proper constitutional reference declares the rule unconstitutional. At the same time, for reasons I gave above, I am of the view that, the provisions of s. 57 (1) and (6) of the Constitution and the HR Rules O.23, rr.8 and 11 as they stand, do not provide the foundation for any proceeding commenced under s. 57 (1) to take the form of an inquiry. According, I find the learned trial judge fell into error when he decided to conduct an inquiry. This, the learned trial judge may have opted for because of a lack of clarity in the HR Rules and the relevant constitutional provisions as to the form or mode, proceedings under s.57 (1) should take.

Guidance for proper exercise of a Court acting on its own initiative


  1. The role and function of this Court is amongst others, to provide clarity in both the substantive and procedural law. This Court was effectively tasked in the Transferees Case and again in this case to consider the question of correct process for the enforcement of human rights in a case where the Court on its own initiative commences proceedings under s. 57 (1) of the Constitution. The decision in the Transferees Case did give some idea on how proceedings brought under that provision should be conducted. Prior to that, many judges in the National Court with the endorsement of this Court, exercised the powers under s. 57 (1) by commencing and conducting proceedings through to their final reliefs with final orders made. But no decision of this Court or the National Court adequately provides any guidance for the conduct of such proceeding. I consider this Court is duty bound therefore to now take the opportunity to help provide some guidance on how a judge or a court initiated proceeding under s. 57 (1) of the Constitution could be conducted.
  2. In my humble view, given the provisions of s. 57 (6) of the Constitution and the various case law as discussed above, the starting point for a proceeding commenced on a court or a judge’s acting suo moto pursuant to s. 57 (1) of the Constitution and the HR Rules must be that the normal process in the adversarial system of justice should take place from start to finish. The only exception to that will be the fact of the court or the judge acting suo moto. Also, given the need for flexibility and the need for prompt action and attention to be given to any actual, alleged, or likely or probable breach of a person’s human rights, the principles and the skills and techniques applicable for effective case management should also be adopted and applied.
  3. The concept of effective case management or sometimes described as active case management is not well understood by many. It is therefore necessary to point out what it is and what the courts’ attitude has been. In short, active or effective case management allows for the courts or the judges to play a more active and lead role in the management of court case processes until final decision in all matters filed with a court. This allows for a court or a judge to set time frames or deadlines for the steps that need to be taken, who by, when and how to enable an expedited resolution by negotiation directly between the parties or by mediation or trial and closely monitor, enforce and ensure compliance until final disposal of the matter. The concept is not new. In The State v. Stuart Fancy [1994] PNGLR 548, per Los J, alluded to that and addressed the issue of a tendency by some to consider such intervention by the courts and judges as a threat to judicial independence. His Honour, quoted from the learned authors of the textbook, Case Flow Management in the Trial Court by Maureen Solomon and Douglas K Somerlot (1987 edn, American Bar Association). Before quoting the relevant part, his Honour commented:

“... the authors discuss judicial leadership and commitment in management of cases and warn that there may be a tendency for some people to fear that case management system may be a threat to judicial independence.


  1. His Honour then quoted the following from page 9 of the text:

“There will be a tendency for some judges to view the case flow management system as a threat to judicial independence. It is important to distinguish between independence in decision making and administrative independence. An effective case-flow management system, while requiring some sacrifice of administrative independence with respect to processes, should in no way threaten independent judicial decision making. Case flow management enhances the quality of justice by imparting rationality and predictability to the process and by minimising delay to disposition”.


  1. Thereafter his Honour added:

“The idea of case management should not be so strange. Especially in conspiracy trials, prior preparation is necessary to shorten trials and a duty is not only on lawyers but also on judges to take necessary steps. There are strings of cases on this. I mention two for example R v Simmonds [1967] 2 All ER 399 and R v Maynard (1979) 69 Cr App R 309.”


  1. On my part, in The State v. Robin Warren & Ors (2003) N 2417, I comment on the system in the context of a criminal proceeding’s process of pretrials in this way:

“Pretrial is a process in our criminal justice system (Order 2 – Criminal Practice Rules 1987) that enables the parties and the Court to settle amongst other the issues for trial ...This is a very critical and important part of our case management process. It is a necessary process when judicial time and resources are very limited and so are the resources and the ability of the law and justice sector to promptly reach and dispose of cases within the dictates of the Constitution, particularly s.37 (14)....”


  1. In respect of civil matters, I alluded to the system of case management for expedited disposal of cases in Takoa Pastoral Co Ltd v. Dr Puka Temu, Minister For Lands (2009) N3739. There I state at [28]:

the

“A Court with a well developed system of case management, the Court takes control of both the events and the timing of the various steps that must be taken in proceedings brought before them. Under such a system, the Court has a good working relationship with the bar with the Court closely supervising the case progress and sets the standards and goals for all to subscribe to and work toward achieving.”


  1. Contrary to the provisions of O.10, r. 9A (Listings Rules) r. 15 (2) of the NCR and the well accepted role case management plays in the attainment of justice, Injia CJ (as he then was) with respect, in an obvious obiter dictum in the case of Telikom (PNG) Ltd v. Rava (2018) SC1694, questioned the Courts ability to dismiss proceedings for amongst others failure to comply with case management orders or directions in this way:

“The abuse of court process is without doubt a Court policy consideration that protects the court process. A dismissal of an appeal for want of prosecution, want of competence, breach of directional orders or for some other reasons are associated with Court policy and case management. Should court policy or case management considerations override important points of law in an appeal needs careful consideration? This point was not fully addressed in Popuna and has not been fully addressed by the parties before us and I am unable to determine this point.”


  1. However, later in deliberate judgments of this Court, the Court emphasised the importance of case management. One such judgment was the one in Napanapa Landowners Association v. Logae (2016) SC1533, per Injia CJ (as he then was) as president and Hartshorn and Collier JJ as other members of the Court. That was in the context of an appeal against a decision dismissing a belated application for a joinder of the appellant made on the day the proceeding was fixed for trial in the National Court. In dismissing the appeal, the Court said:

“In written submissions to this Court the first appellant contended that the lateness of the appellants’ joinder application was an irrelevant consideration for his Honour to take into account in determining the joinder application. We do not agree. Case management issues, and the avoidance of wastage of judicial time and public expenses, are relevant factors for Courts to take into account in exercising its discretion whether, at a late stage of proceedings, an application for joinder should be entertained.”

  1. In the same year of the above decision, this Court repeated the emphasis on case management in its decision in Kewa v. Kombo (2016) SC1542, per Gavara-Nanu, Hartshorn and Higgins JJ. That was in the context of amendments to pleadings. There, the Court cited and applied the Australian High Court decision in AON Risk Services Australia Limited v. Australian National University [2009] HCA 27, the ratio of which was succinctly summarised by French CJ at [4] – [6] in terms of:

“... it was held that, whilst amendments should be allowed to enable the true merits of the dispute to be addressed, with costs as the appropriate remedy for an opposing party, case management considerations, the effective and efficient use of court resources, the prejudice that may be occasioned by delay and any explanation for it may outweigh those other considerations so that leave to amend pleadings should be denied. It may be observed too that the result of the denial of leave to amend in that case did not leave the respondent without a remedy.”


  1. Earlier in 2014, this Court in Kalinoe v. Paul Paraka Lawyers (2014) SC1366, per Kandakasi J (as I then was), David and Murray JJ, had the occasion to comment on a case management process step, namely holding of a status conference. In respect of that part of the process, the Court noted:

“... at a status conference the Court merely checks and ensures compliance of its earlier orders and directions and confirm the date fixed for hearing. The only exception would be cases in which there has been some serious intervening event that was beyond the control of the parties such as death of one of the parties or counsel, which would clearly prevent the hearing from proceeding. We also noted that, if there was such an intervening event, it was incumbent on the party affected to immediately draw that to the attention of the Court and apply for a vacation of a scheduled Court event. Depending on when such an event occurs this could be done at the schedule status conference if not possible earlier or soon after the conduct of the status conference.”


  1. Other decisions which highlight the importance of effective or active case management include the decisions in Amaiu v. Yalbees (2020) SC2046, per Salika CJ, Makail and Berrigan JJ at [32-33]. Another one is the decision in Alex Awesa v. PNG Power Ltd (2019) SC1848, per Hartshorn, Yagi & Thompson JJ who dismissed the appeal in its entirety. In so doing, the Court noted the appellant was bound by a statement of agreed and disputed facts and issues settled by the parties following case management directions. He was therefore precluded from raising any issue not captured in the statement.
  2. Turning than to the case at hand, I note a combined reading of the provisions of s. 57 of the Constitution and O.23, rr.8 and 11 HR Rules makes it clear that the provisions of O.23, rr.8 and 11 of the HR Rules make important provisions on how a court’s power to initiate proceeding on its own motion could be exercised and how the proceedings could be dealt with. At the same time, I am of the view that these provisions need to be clarified to enable better understanding and a proper exercise of the initiating powers under s. 57 (1) of the Constitution. This is also necessary to enable the initiating judge or court to amongst others, address at the outset of each proceeding all the relevant issues such as its jurisdiction, appointment of an amicus curiae to avoid possible conflicts of interest, duplication of proceedings by reference to any related pending or concluded proceeding and whether another authority as the jurisdiction and is already dealing with the matter. Accordingly, building upon what is already provided for in O.23, r.8 and 11 of the HR Rules and s.57 of the Constitution, I am of the view that, the process and procedure should be as follows:

(a) the file is given the reference “HROI” and the responding party, if any, is to be called “the respondent”;

(b) the originating process is in Form 126 or in such other terms as the Court considers appropriate and directs or adopts;

(c) a date is given for the matters first directions hearing at the earliest available date for the Court; and

(d) if the circumstances so warrant, the Court may issue appropriate interim restraining orders or such other orders as the Court considers appropriate in the circumstances for the protection or enforcement of a human right.


(3) Within 7 days of the commencement of the proceeding and before the date fixed under (2) (c), ensure that the proceeding is served on the respondent (s).

(4) The proceeding would then come up for its first directions hearing on the date fixed under (2)(c) above at which the Court may consider and amongst others, raise the following:

(g) any related and pending proceedings and their consolidation;

(i) joinder of all necessary and relevant parties and causes of action;

(j) the respondents defence if any;

(k) any resolution out of court;

(l) an identification of the relevant factual and legal issues raised in the proceedings;

(m) any documents to be relied upon and any need for discovery of documents;

(n) requirement for any expert or independent assessment and report;

(o) number of witnesses, their relevance and necessity;

(p) filing of witness statements and or affidavits;

(q) issuing of witness summonses;

(r) filing statement of agreed and or disputed facts and issues for trial;

(s) likely length of time for trial and time for readiness for trial

(t) medium and or mode of giving evidence;

(u) any requirement for translation;

(v) any further steps to be completed before trial;

(w) necessity to transfer the proceedings to a different Court or venue;

(x) date, time and venue for date of hearing or pre-trial conference; and

(z) any other factor that may aid in a prompt disposal of the case either by the agreement of the parties or by trial.


  1. Using this list as a check list or as a guide, the Court will be well placed to take the lead in raising all the relevant procedural and substantive issues or aspects of each case with the parties. The Court would then be enabled to issue appropriate orders and directions aimed at an expedited hearing and disposal of the proceeding. The orders and directions first issued should all have time frames that is not too far away or not too short for each of the events and activities but sufficient to enable the parties’ compliance. Such orders should then be made returnable on a date that is convenient to Court and the parties but not too far off. On the return date, the Court would check on compliances and work toward a trial date or prompt resolution by the parties direct or facilitated negotiations and set the relevant date or dates.
  2. In keeping with the flexibility intended for s. 57 proceedings by our founding fathers, this suggested guide should not be taken as a rigid process. In some cases, the Court may need to act faster while in other cases more time may be required to deal with the real and main issues presented on their merits. At the end of the day, the Court must work toward arriving at a decision that is fair and reasonable promptly for the enforcement of a basic right or freedom. Such a decision must be based on the relevant facts and the relevant and applicable law.
  3. Having covered the process, let me now turn to a consideration of the second part of question 1, namely the appeal against the finding of breaches of human rights in the present case. That is also the subject of the third ground of appeal. Accordingly, I will deal with those questions together.

Were the prisoners’ human rights breached or was likely to be breached? (Ground 2 and second part of ground 1(a))


  1. Their Honours’ Makail and Kariko JJ in their respective decisions cover the circumstances leading to these grounds, the evidence or lack thereof, the appealed decision and the arguments of the parties before this Court. I adopt and incorporate those in my consideration of these grounds.
  2. The powers under s. 57 of the Constitution comes into play upon any of three events occurring. These are; (1) there is a breach; or (2) there is a likelihood of a breach; or (3) there is a reasonable probability of a breach of a person’s human rights. Evidence establishing any of these events needs to be presented before the Court. Such evidence will have to be adduced in the normal way if there is a serious dispute on the facts giving rise to the action. If the event in question is an event witnessed by the initiating judge leading him or her to act suo moto, the judge will have to put what he or she has witnessed to the parties. If no issue is taken as to the facts giving rise to the proceeding and the parties take no issue with the judge presiding and dealing with the matter, the Court may then be able to proceed to deal with the matter further based on those facts. However, if the facts are seriously disputed, trial in the normal way will need to take place and the Court will have to come to a decision which amongst others establishes the relevant facts. Once the facts are established in any of these ways, the Court would be at liberty to make the appropriate decision to enforce or protect a person’s human right or freedom and the kinds of reliefs legally available and the most appropriate could be granted.
  3. Thus, the question in this case is, what was the evidence before the learned trial judge? As does my brother Kariko J., I note that, at the time of initiating the proceedings, it is clear none of the prisoners or anybody else complained about any actual, likely or a reasonable probable breach of their rights as prisoners sentenced to death. Consistent with that, the initiating document, Form 126 does not indicate a breach or a likely or a reasonable probable breach of the prisoners’ rights had occurred. Instead, it is obvious that the intend of commencing the proceeding was to inquire into and find out if there was any breach or a likelihood of a breach of any of the prisoners’ rights. I have already expressed the view for reasons already given that, s. 57 does not authorise an inquiry but a judicial process with only one variation where applicable, namely where the Court is initiating the proceeding.
  4. The evidence that was presented at the inquiry included an affidavit of the then Attorney General, Dr. Lawrence Kalinoe filed 27th August 2015. It was deposed at paragraphs 13 – 14 that:

(1) Due to administrative and political reasons, the ACPM had “not been operational over the past years” but that had changed with the formal appointment of its members on 18th February 2015;


(2) Detailed research was carried out on the various modes or forms of executions of persons sentenced to death and appropriate recommendations were made to the NEC;


(2) Steps that were being taken to get the ACPM properly operational included, obtaining funds under the 2016 Budget for allowances and stipends for members, educating the members of the Committee on their roles and liaising with Goal Commanders to inform detainees on the process for applying for pardon.


(3) The process is that the Advisory Committee on the Power of Mercy considers applications for mercy from prisoners or criminal offenders, and it is those deliberations that form the basis of the report to the NEC. These prisoners would of course, have had to exhaust the criminal process of appeal/review, before any consideration of mercy would come into play.
  1. The prisoners subject of these appeal and the proceedings that have lead to the appeal did give evidence. However, none of them gave any evidence of any breach, likely or reasonable probability of a breach of their rights. In fact, they gave no evidence of having made attempts at apply for an exercise of the power of mercy by the NEC for those of the prisoners exhausted their appeal and review rights. Some of the prisoners have their appeals or reviews still pending. Hence, they were in no position to and correctly did not give any evidence of having made attempts for an exercise of the power of mercy in their favour. The only relevant evidence was from Dr. Kalinoe. From that witness’ statement, the learned trial judge found:

“There has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to comply with the duty to facilitate appointments of members of the Advisory Committee on the Power of Mercy and to provide it with staff and facilities. The Committee has become defunct. This leaves all prisoners, in particular those sentenced to death, with no effective opportunity to invoke their right to the full protection of the law by applying for exercise of the power of mercy.


...This has created a gap in the criminal justice system. It involves a breach of the Constitution and an infringement of human rights which must be remedied as a matter of priority.”


  1. With all due respect, I find the finding and conclusions the learned trial judge arrived at was not supported by the evidence. The available evidence established the following:

Through Dr Kalinoe, the appellant tendered a report on Death Penalty titled “Report to the NEC on Implementing the Death Penalty” dated 23rd August 2013. By way of commentary, I note the report is comprehensive. It is based on extensive research by a five-member team of senior Government officials from the Deputy Secretary of the Department of Justice and Attorney-General, Department of Prime Minister and NEC, Police, Correctional Service and Constitutional Law Reform Commission. That team visited a selected group of countries including the US and Singapore where the death penalty has been introduced and implemented. The Report covered different methods of execution and the ongoing debate about whether the death penalty is appropriate for our country and should be implemented. Most importantly, the report included a guideline for the implementation of the death penalty.


(4) Other steps taken to get the ACPM properly operational included obtaining funds under the 2016 Budget for allowances and stipends for members, educating the members of the ACPM on their roles and liaising with Goal Commanders to inform detainees on the process for applying for pardon or mercy; and

(5) In terms of when the NEC plays a part on the process of Power of Mercy, it is only when it receives a report on the workings of the ACPM. The ACPM’s function commences once all the process in criminal justice system is exhausted. The process commences on the application of a prisoner who is sentenced to death and has exhausted or chooses not to exercise his or her right of appeal or review. The report to the NEC is based on applications the ACPM receives and deliberates upon.
  1. The factual basis on which the learned trial judge commenced the proceeding were disputed and the appellants went into evidence. The prisoner’s gave evidence but none of them gave any evidence on the issue the learned trial judge raised in the inquiry. Without the prisoner’s direct evidence on the relevant facts which were disputed, the proceeding could not be taken any further. Additionally, there is no evidence of the inquiry seeking the views or inputs from any of the relatives of each of persons each or any or all the prisoners’ respectively so brutally and mercilessly killed. The prisoners’ actions represented a gross violation of those persons rights and death penalties imposed on their respective victims, without being accorded the right to be heard and the full protection of the law which the learned trial judge sought to accord the prisoners with. This clearly marked a one sided and most unfair and unjust proceeding from the perspective of the victims/deceased families, relatives, friends, and their respective communities.
  2. Picking up on the last aspect, I note most of the action in the HR track by the learned trial judge have been more on the rights of persons accused of criminal offences, awaiting their trials, or convicted persons serving their time complaining mainly about the kind of food and medical services they were receiving and matters going into the administration of their imprisonment and due dates for release. Most of the persons who have benefited from the decisions of the HR track judge have been persons accused of or found guilty and sentenced for committing some of the worse forms of violations of other persons freedoms and rights including the taking away of innocent lives prematurely in a summary manner executed mercilessly in cold blood. In the context of wilful murder cases, what Sevua J described in The State v. Clarence Tema Mongi (2007) N3259, aptly describes the kinds of violations offenders commit:

“... the prisoner not only committed a crime under the Criminal Code, he violated the Constitution as well. The only exception to the right to life is provided for in s.35 (1) (a) where a person can be deprived of his life in the execution of a sentence of a Court following his conviction of an offence which attracts the death penalty. Even the cruel and inhuman treatment suffered by the deceased also violated s.36 (2) of the Constitution.”


  1. None of the decisions by the HR track judge as far as I am aware, including the present case, record any consideration and thought let alone, a mention of the rights of the victims of the offences or, the losses and sufferings their family and community have been forced to bear. In so failing, these kinds of decisions have failed to note and consider the fact that respect for one’s right is and should be dependent upon each person recognising and respecting the rights of others. Better and stronger societies are built on the reciprocal and mutual respect between human beings as to their respective rights. In the olden days, it was an eye for an eye and a tooth for a tooth. As societies developed into modern societies, the State took responsibility for their citizens to provide for their protection and enforcement of their rights and freedoms. The States arrest, charge, prosecute, imprison offenders and in some worse cases as in wilful murder, legally have the offenders killed, where the death penalty is still applicable. The victims of offences and their relatives or friends are precluded from taking matters into their own hands. There is thus a legitimate expectation by the victims of offences, their relatives and immediate family and their respective communities specifically and generally the public at large, that the State through the third arm of government, the judiciary will take their interests, their views and rights into account when dealing with offenders and not to their exclusion and focusing only on the interest or the rights of the offenders.
  2. This Court’s decision in Acting Public Prosecutor v. Don Hale (1998) SC564, made that point abundantly clear although in the context of sentencing at the trial level. There the Court said:

“If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment.”

(Underlining mine)


  1. As can be seen, sentencing is a community business and so must any revisit or any attempt at revisiting effectively any decision lawfully arrived at as to the guilt and innocence of offenders and appropriate penalties. The community has every right and expectation that their views and concerns will be considered by the courts at all levels. Hence, for there can be a proper assumption of jurisdiction and grant of reliefs to convicted prisoners through the HR process, the prisoners’ victims, the victims’ families, relatives, and friends as well as their respective communities’ views must be received and considered.
  2. I also note that, the kinds of human rights decisions under consider have also, failed to apply the well accepted principle that, he who comes to equity or the courts for justice must come with clean hands. In other contexts, a consideration and application of this principle has seen either dismissal of proceedings or a refusal of reliefs sought by those coming to the courts with dirty hands: See for a statement of that principle in Philip Takori v. Simon Yagari & Ors (2008) SC905 (per Kirriwom (as he then was), Gavara - Nanu J and Kandakasi J (as I then was) and Electoral Commission of PNG v. Kaku (2020) SC1950.
  3. In the present case, I see no discussion at all of any of these equally important factors as has been the case in other HR applications and decisions. Justice and fairness require final decisions to be arrived at after a careful consideration of all competing rights and interests based on the evidence and the relevant and applicable law. It is most unfair and not right for human rights applications and considerations to continue to focus only on the rights and interest of accused or convicted and sentenced criminals. Serious regard must always be had to the fact that they have most violently in the case of murder, rape and other offences of violence, breached the human rights of the victims of their respective offences and forced upon them substantial pain, suffering and losses, not only to the victims but also their families and their respective communities. To put it simply, the offenders are coming to court with dirty hands. Hence, a court or judge must when dealing with such an application either on suo moto or on the application of the offender or others, must to do justice remind him or herself of that important fact and have that reflected sufficient in the court’s decision.
  4. Given the limited judicial and financial resources the country has and more so the courts, the priority should be for the judges and the courts to intervene proactively and appropriately within the many criminal cases that are pending in the National Court for trial beyond the reasonable period called for by the Constitution per s.37. Some of these cases are active whilst others are on the Court’s growing bench warrants list. Each year we hear of prison breakouts and or petitions and complaints by remandees for delays in their trials. Any court or a judge seriously concerned with human rights and justice from the viewpoint of both an accused and the victims of criminal offences should devote his or her time to appropriately intervene in these categories of pending criminal cases but within the pending proceedings themselves with a view to getting those matters to trial without further undue delay. Releasing accused persons on account of their trials being delayed or for a failure to accord better conditions and treatments of prisoners without regard to interest of justice from the victim’s perspective is not an answer as it amounts to injustice.
  5. At the same, repeating what I have already indicated, those who violate the law and trample upon the rights of others by the commission of offences have due processes prescribed by law to process their cases through to finding them guilty or innocent of charges brought against them. Where there is a finding of guilt, there are process for determining their penalty. The courts have made the point clear that pleas by prisoners for mercy, their medical conditions and the needs of their families are matters they should have given thought to prior to the commission of the offences. After conviction on a crime of violence or indeed any other crime, it is too late to talk about such concerns, interests and rights: See as representatives of cases on point, Emmanuel Mai v Madang Development Corporation Ltd (2016) SC1576 at [46] per Injia CJ (as he then was) and Girigi Goasa Mose v. The State (2019) SC1804, per Salika CJ.
  6. As this Court said per Frost CJ said in SC Reference No. 1 of 1977 and the 5-member decision in the Eremas Wartoto case, accused persons could seek protections or enforcement of any of their rights through the criminal process from the point of arrest to trial and final verdict and sentence. Given that, accused persons, have no right to come to the court in any other way including the use of the court’s civil processes and jurisdiction for such reliefs. Human rights applications are civil proceedings and they appropriately come under the National Court’s civil jurisdiction. Hence, applications for enforcement of a human right through the HR Track and not within the relevant or related pending criminal proceeding would amount to an abuse of the Court’s process. The correct avenue is to make the appropriate applications within the existing or pending proceeding and not otherwise.
  7. After convictions and sentences, there are also processes for convicted prisoners serving their time to use to raise any breach or violation of their rights. Once that point is reached, the Courts have no power or jurisdiction to revisit the decision on conviction and sentence in any manner or form except only through an appeal or a review properly filed by a prisoner. Once the appeal or review process is exhausted, 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. There is also the various process under the Correctional Service Act 1995 which provides for how a prisoner should be dealt with in prison.
  8. As already noted, these laws create and appropriately empower different authorities for each of them. Amongst others, these authorities are empowered to consider the public policy and other relevant considerations before releasing any prisoner on parole, power of mercy or licence. The relevant provisions of the Constitution and the Acts of Parliament also provide for their respective process and procedures. Again, using the words of Constitution s 57 (6), the powers vested in the Courts by subsection 1 of the same provision, does 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 such laws. Hence, any prisoner seeking any pardon from the death penalty or an early release from serving the whole or parts of his or her term of imprisonment or is concerned about his or her treatment in the prison system in any manner or form, must use anyone 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. 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.
  9. The decision of this Court in Re Application of Paul Tiensten (2014) SC1343, per Sakora (as he then was), Cannings J and Poole J (as he then was) clearly makes this point. 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. The 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 or position in society before conviction and imprisonment, more particularly as a national legislator directly involved in 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.
  10. 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.”


  1. 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 of the incidents that the applicant complained of. This, according to the 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.”
  2. The Court then went into a detail consideration of the various provisions of the relevant Act as well as the law on bail and 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.


  1. Further, the Court concluded:

“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).”


Decision on ground 2 and second part of ground 1 (a)


  1. For these reasons, I would also uphold the appeal against the trial Court’s finding of breaches of the prisoners’ human rights. That finding was against the evidence and without any evidence from the prisoners’ themselves or any other person clearly establishing the breach. In any case, the finding was arrived at using a process not authorised by s.57 of the Constitution and as such it cannot be allowed to stand.

Stay of execution of death penalties.


  1. Also, based on all the discussions under each of the grounds of appeal and the reasons given, I find the decision to stay an execution of the prisoners’ death penalties was arrived at erroneously and must be quashed forthwith. My reasons for arriving at that view in short are these. The proceedings were commenced and conducted as an inquiry which is not authorised by s. 57 of the Constitution. Additionally, the proceeding so commenced and conducted were in abuse of the process of the Court and contrary to that which is prescribed by law for prisoners at the end of a criminal process. Also, no evidence supported the decision. Further, the learned trial Judge did not have the necessary power or jurisdiction to grant the relief considering the legal position as discussed and set out above. Furthermore, as has been highlighted by my learned brothers, the ACPM is not vested with any power to stay any execution of a death penalty. Its power and or function is to either have a condemned prisoner recommended for a grant of pardon and released from the penalty of his or her crimes. If any or all the condemned prisoners’ rights were correctly found to be breached, the only remedy the Court could grant would have been an order for the ACPM to discharge its duties promptly and duly conditional upon each of the prisoners filing and making their necessary applications.

Summary of decision on the appeal


  1. In summary I answer each of the questions raised by the three grounds of appeal as follows:

Ground 1 (a) first part


(1) Did the National Court err in commencing and conducting an inquiry under O.23, r.8 (Human Rights Rules) of the National Court Rules (HR Rules) into alleged breaches of human rights of prisoners sentenced to death when there was no evidence of any breaches?

Answer: Yes, the National Court erred in commencing and conducting the proceeding under O. 23, r.8 of the HR Rules as an inquiry and not as a judicial proceeding.


Ground 1(b)


(2) Did the National Court err in assuming jurisdiction and dealing with the proceedings under O. 23, r 8 of the HR Rules when this Court in The Independent State of Papua New Guinea v. The Transferees SC1451 declared O.23, r.8 of the HR Rules unconstitutional and invalid?

Answer: No, s.57 (1) of the Constitution empowers the National Court to initiate proceeding on its initiative for the enforcement or protection of human rights. The decision in The Independent State of Papua New Guinea v. The Transferees SC1451 was obiter dictum on that point, contrary to the provisions of s. 57 (1) and was therefore not binding on the National Court.


Ground 2 and second part of ground 1 (a)


(3) Did the learned trial Judge have the necessary basis in law and in fact for his finding that:

Answer: Yes, the learned trial Judge did not have the necessary basis in law and in fact to make these findings. The only evidence produced at the inquiry did not support these findings.


  1. Accordingly, I would uphold grounds 1 (a) and 2 of the appeal but dismiss ground 1 (b) and make orders accordingly.
  2. MANUHU J (dissenting): This is my ruling on this appeal which arose from the judgment of Cannings, J. in a National Court proceeding where his Honour:
  3. The grounds of appeal are:

103. Most of the submissions by counsel were on the question of whether the ruling in the Transferees case was binding on the primary Judge (so that it was wrong in law for the primary Judge to commence the proceeding on his own initiative) and whether there was sufficient evidence to justify the declarations and orders made against the NEC.


104. I am of the view, however, that counsel, with due respect, did not adequately address the Court on certain important issues, especially on the rights of prisoners under sentences of death. For that reason, and consistent with the theme of section 57 (Constitution), I propose to deal with the appeal grounds in the context of the rights of prisoners under sentences of death.


105. In that regard and with due respect, I consider the following to be the relevant issues:

106. I now turn to consider each issue.

Whether section 57 of the Constitution confers power on the Supreme Court and the National Court to commence proceedings on their own initiatives?

107. One of the main issues raised in the appeal was whether the decision in the Transferees case was obiter and therefore not a binding precedent on the primary Judge. It was held in the Transferees case that section 57 does not confer power on the Supreme Court and the National Court to initiate or commence proceedings on their own initiatives. Consequently, Order 23 Rule 8 was held to be unconstitutional.

108. When the primary Judge commenced this proceeding, he reasoned that the ruling in the Transferees case was obiter and, in any case, wrong in law. The primary Judge proceeded with the inquiry in defiance of the ruling in the Transferees case. My brothers have expressed their views on the issue. The primary Judge gave his view in his judgment. Enough said, it is not necessary for me to weigh in.

109. In my view, the real issue is whether section 57 (Constitution) confers power on the Supreme Court and the National Court to commence proceedings on their own initiatives. The fate of the Transferees case as a binding precedent depends on how this Court rules on this issue.

110. Section 57 is necessarily set out in full below:

“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.

  1. I am enlightened by the remarks of Kidu CJ in the case of Inakambi Singorom v John Kalaut [1985] PNGLR 238 where his Honour said:

“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. I have said the above to emphasise 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.

....

“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.”

  1. On a plain reading of section 57, there is no doubt that the Supreme Court and the National Court may initiate proceedings on their own initiatives to protect and enforce guaranteed rights and freedoms. To say otherwise would be a departure from “a clear parliamentary intention” in the section. Subsection (1) states that a right or freedom 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. There is nothing unclear to justify any further consideration and or interpretation.
  2. I am of the view that the decision in the Transferees case is wrong in law. I am satisfied that the primary Judge acted within his powers under section 57 to initiate the proceedings on his own initiative. I also find that Order 23 Rule 8 is not unconstitutional.

Did the primary Judge have valid grounds to commence the proceedings on his own initiative?

  1. The basic premise is that there has to be a factual basis or reason upon which a court may initiate a proceeding. A judicial notice of a material fact or a letter of complaint or report by a person, including those named under Order 23 Rule 8, may warrant initiation of a section 57 proceeding by a court on its own initiative.
  2. In this case, there was no complaint or report from anyone to form the basis of the inquiry. It is however clear that the primary Judge took judicial notice of certain matters of fact that were common knowledge at the relevant time. These are comprehensively pleaded in the originating process, as set out below:

“THE NATIONAL COURT:

has decided that it is necessary and appropriate to act on its own initiative, and accordingly

COMMENCE THESE PROCEEDINGS on its own initiative to enforce the guaranteed rights and freedoms of those prisoners who have been sentenced to death, those guaranteed rights and freedoms including:

AND INDICATES that it is not the purpose of these proceedings to review decisions of the National Court or the Supreme Court to impose the sentence of death in any case, nor is it the purpose to review the appropriateness or viability of the death penalty as a criminal sanction, but THAT IT IS THE PURPOSE OF THESE PROCEEDINGS:

(1) to identify the nature and extent of the guaranteed rights and freedoms of those prisoners who have been sentenced to death; and

(2) to inquire into whether those rights and freedoms have been or are being enforced and protected; and

(3) in cases of actual or imminent or a reasonable probability of infringement of those rights and freedoms, to consider making orders and declarations and granting other relief under Sections 57 or 58 of the Constitution as are necessary or appropriate,

AND IN PARTICULAR:

(4) to identify the protections afforded to prisoners sentenced to death by the laws of Papua New Guinea including the following laws, and to inquire into whether such protections have been and are being enforced:

AND ACCORDINGLY, it is anticipated that the Court will, after consulting the parties to the proceedings, require the cooperation of a number of persons and authorities in providing documents and other information pertaining to the purpose of these proceedings, and answering relevant questions, including:

(a) Who are the prisoners who have been sentenced to death? (And in relation to each of those prisoners: all official records regarding their conviction and sentence and place of detention will be required to be furnished to the Court.)

(b) In relation to the Advisory Committee on the Power of Mercy:

(i) Is that Committee operating and exercising the powers, functions, duties and responsibilities conferred on it by Subdivision VL4.D of the Constitution and the Organic Law on the Advisory Committee on the Power of Mercy?

(ii) Who are the members of the Advisory Committee on the Power of Mercy and who is the Chairman?

(iii) When do the terms of appointment of the members expire?

(iv) Has the Committee, since reintroduction of the death penalty in 1991, provided a report to the National Executive Council under Section 152(2) of the Constitution in regard to any prisoner who has been sentenced to death?

(v) Has the Committee considered, in relation to any prisoner sentenced to death, that the prisoner should be granted a pardon, a remission or commutation of sentence, a respite of execution of sentence or a less severe form of punishment?

(vi) Has the National Executive Council, since 1991, given advice to the Head of State as to the exercise of the power of mercy in relation to any prisoner sentenced to death?

(vii) Has the Head of State, since 1991, exercised the power of mercy in relation to any prisoner sentenced to death?

(c) In relation to each prisoner sentenced to death:

(i) Is he being detained in a way that meets the human rights standards guaranteed by the Constitution?

(ii) Are the conditions of detention compliant with Sections 105 (eg the detainee condemned to death shall be placed in a cell alone, be observed at all times, receive access to an area in the open air suitable for exercise for a total of no less than three hours each day) and Section 106 (eg that he has access to a legal adviser when requested) of the Correctional Service Regulation?

(iii) Is he presently legally represented?

(iv) If he has no legal adviser, should the Court direct the Public Solicitor under Section 177(2)(b) of the Constitution to provide him with legal aid, advice and assistance?

(v) Is there any appeal or review or other legal process pending, which has the effect of staying execution of the sentence of death?

(vi) Has the mode of execution of the death sentence (hanging, lethal injection, medical death, firing squad or electrocution) been determined under Section 614(1) of the Criminal Code?

(vii) Has the time and place of the prisoner's execution been appointed under Section 614(2) of the Criminal Code?

AND FOR THE PURPOSES OF THESE PROCEEDINGS THE FOLLOWING PERSONS ARE UNDER SECTION 57(3) OF THE CONSTITUTION SUMMONED TO APPEAR IN PERSON OR BY THEIR DULY APPOINTED PERSONAL OR LEGAL REPRESENTATIVE BEFORE THE NATIONAL COURT AT WAIGANI ON 29 MAY 2015 AT 9.30 AM so that the National Court may inquire into this matter and determine whether it is necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under Section 57(3) of the Constitution:

1. the Principal Legal Adviser to the National Executive;

2. the Public Solicitor;

3. the Public Prosecutor;

4. the Commissioner of the Correctional Service; and

5. the Registrar of the National Court,

AND TAKE NOTICE, that failure by any person summoned to comply with this order may be deemed to be contempt of court and expose the person who fails to comply to the sanctions of the criminal law, including arrest, fine and/or imprisonment.

AND FURTHERMORE, take notice that any person who claims a legitimate and genuine interest in this matter is invited to appear before the National Court and seek the leave of the Court to be joined in these proceedings.”

  1. It is well established that pleadings establish the perimeters or scope of a proceeding. In this case, the opening paragraph shows that the primary Judge took “judicial notice of the fact that in recent years a number of prisoners have been sentenced to death, following conviction of offences for which the penalty of death is prescribed by law, and that none of those sentences have yet been executed.” It was common knowledge then that the Advisory Committee was defunct and, for that reason, the prisoners were not able request any pardon or reprieve through the Advisory Committee.
  2. It was also pleaded that no prisoner under death sentence has been executed. They were literally serving imprisonments terms, most of them for over 10 years. When no Law Officer or anyone else showed any interest in the welfare of the prisoners in question, the primary Judge acted on his own initiative to commence the proceeding.
  3. It is also the duty of the courts to protect and enforce the rights of prisoners. In the case of Re Heni Pauta & Kenneth Susuve (No. 2) (1982) N337, Kidu, CJ emphasised, thus:

“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.”

  1. Chief Justice Sir Buri Kidu made those remarks in 1982, nine years before the reintroduction of the death penalty in 1991. With due respect, if he was still Chief Justice now, he would be equally concerned about the welfare of the prisoners currently under death sentences.
  2. I am of the view therefore that there were sufficient factual and proper basis for the primary Judge to commence the proceeding on his own initiative under section 57 and inquire into the welfare of the prisoners under sentences of death.

Whether a prisoner under death sentence has any right?

  1. It is well established that rights and freedoms of prisoners are guaranteed by the Constitution. See Tom Amaiu v. Commissioner of Corrective Institutions [1983] PNGLR 87, 88-89. It is apparent in the pleadings that the proceeding was commenced to enforce the guaranteed rights and freedoms of the prisoners who have been sentenced to death, those rights include the right to life, section 35; the right to freedom from inhuman treatment, section 36(1); the right to the full protection of the law, section 37(1); and, the right to be treated with humanity and with respect for the inherent dignity of the human person, section 37(17).
  2. In addition to the above-mentioned rights, prisoners, including those under sentences of death have the right to seek a pardon or reprieve. The Office of the High Commissioner for Human Rights (OHCHR) has adopted certain safeguards guaranteeing protection of the rights of those facing the death penalty, including:

“Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.”

  1. The Geneva Conventions Act, Chapter No. 84, being an Act of Parliament to give effect in Papua New Guinea to the Geneva Conventions of 12 August 1949, also states:

“In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve.”

124. The right of a prisoner under a death sentence to seek a pardon or reprieve is also inferentially evident in the constitutional provisions on the power of mercy. Section 151 provides:

“The Head of State, acting with, and in accordance with, the advice of the National Executive Council, may grant to a person convicted of an offence or held in penal detention under a law of Papua New Guinea:

(a) a pardon, either free or conditional; or

(b) a remission or commutation of sentence; or

(c) a respite of the execution of sentence; or

(d) a less severe form of punishment for that imposed by any sentence,

and may remit or refund, in whole or in part, any fine, penalty or forfeiture paid or payable to a governmental body.”

125. In my view, section 151 effectively creates a constitutional right that a prisoner, including a prisoner under sentence of death, has the right to seek a pardon or other forms of reprieve. If there were no such right, section 151 and related provisions would be obsolete.

126. The flipside of a right is a duty to observe that right. Where a right exists, there also exists a duty. Where there exists a constitutional right, there is also a constitutional duty to observe that constitutional right.

127. Under section 152 (Constitution), an “Organic Law shall make provision for and in respect of an Advisory Committee on the Power of Mercy, and for and in respect of its appointment, constitution, powers and procedures.” The Organic Law on the Advisory Committee on the Power of Mercy (“The Organic Law”) was made by the Constituent Assembly to come into operation on Independence Day, which is 45 years ago.

128. Section 1(1) (Organic Law) establishes the Advisory Committee. The NEC makes the appointments of members to the Advisory Committee. The Advisory Committee is a quasi-judicial body. Its powers in relation to its functions and procedures are conferred by the Organic Law. The Head of State, acting with, and in accordance with, the advice of the NEC shall appoint one of the members to be the Chairman.

129. The Advisory Committee reports to the NEC which then advices the Head of State on whether a pardon or reprieve should be granted to a particular prisoner. When the Advisory Committee is in place and functional, a pathway exists under sections 151, 152 and the Organic Law for prisoners to seek a pardon or reprieve. When it is defunct, there is no such pathway through which a prisoner under death sentence may seek a pardon or reprieve.

130. It is my view therefore that the Constitution clearly imposes a constitutional duty on the NEC to avail the exercise of that right to seek a pardon or reprieve to the prisoners under sentences of death. The NEC is thus required to revive the Advisory Committee.

Was there actual infringement of the right of prisoners under death sentences?

131. Consistent with the scope of pleadings, evidence was presented on steps that have been undertaken in relation to appointments of members to the Advisory Committee. Evidence was also presented on steps which the executive branch has undertaken on how the sentences of death would be carried out. There is no dispute that the Advisory Committee was defunct at the time of the inquiry. There is no dispute that the National Government has not finalised the mode by which sentences of death would be carried out.

132. As the proceeding before the primary Judge was to enforce and protect the guaranteed rights and freedoms of the prisoners in question, the most important evidence before the primary Judge and before this Court is the period of delay or rather the period with which each prisoner has been kept in prison since their respective dates of sentence.

133. In an ideal setting, a prisoner under death sentence, after allowing time for appeals and requests for a pardon, should be executed without delay. The Privy Council in the case of Pratt and Morgan v The Attorney General of Jamaica and another (Jamaica) [1993] UKPC 1 (2nd November, 1993) described the situation in United Kingdom, thus:

“The death penalty in United Kingdom has always been carried out expeditiously after sentence, within a matter of weeks or in the event of an appeal even to the House of Lords within a matter of months. Delays in terms of years is unheard of.”

134. When a prisoner under death sentence is kept in prison for a prolonged period, other serious legal complications arise. The Table below highlights the seriousness of issue confronting us.


Evidence of Long Delays
Prisoners on Death Sentence
Date of sentence
Period in prison
(as at 31.05.21)
Keneth Lasi Aira
12.02.16
Over 5 years
Alphonse Hapot
26.04.16
Over 5 years
Taros Togote
02.05.13
Over 8 years
Alois Erebebe
02.05.13
Over 8 years
Misialis Amos
14.12.12
Over 8 years
Selmon Amos
14.12.12
Over 8 years
Kenny Wesley
01.05.12
Over 9 years
Botcha Agena
14.07.11
Over 9 years
Peter Taul
14.07.11
Over 9 years
Tobung Paraide
14.07.11
Over 9 years
Sedoki Lota
01.10.07
Over 13 years
Mark Poroli
24.08.04
Over 16 years
Ben Simakot Simbu
26.03.04
Over 17 years
Kepak Langa
26.09.03
Over 17 year

135. When the efforts and explanations by the executive branch is considered against the period with which each prisoner has been in jail, it becomes apparent that we have a serious constitutional issue beckoning every one’s attention. The prisoners in question are already serving lengthy jail terms. Given the defunct status of the Advisory Committee, the prisoners have not been able to exercise their constitutional right to seek a pardon or reprieve for the entire period of their respective incarcerations.

136. I am satisfied therefore that there has been a continuing infringement of the prisoner’s constitutional rights, namely, the right to life, section 35; the right to freedom from inhuman treatment, section 36(1); the right to the full protection of the law, section 37(1); the right to be treated with humanity and with respect for the inherent dignity of the human person, section 37(17); and, the right to seek a pardon or reprieve, sections 151 and 152 (Constitution), the Organic Law and the Geneva Conventions Act.

137. Contextually, the executive branch has continuously failed its constitutional duty for 17 years since the first prisoner was sentenced to death, for 24 years since the reintroduction of the death penalty in 1991 and for 45 years since Independence Day to install the Advisory Committee. The explanations and excuses offered by the executive branch are completely shattered by the period of inactivity and the period with which each prisoner has spent in prison.

138. In fact, it has been held elsewhere that any delay excuse or explanation is irrelevant. His Honour, Chinnapa Reddy J in the case of T.V. Vatheeswaran v. State of Tamil Nadu (1983) 2 SCC 68 nicely puts it, thus:

“We think that the cause of delay is immaterial when the sentence is death. Be the cause for delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay.”

139. In all the circumstances, I concur with the primary Judge that there has been a “failure over an extended period on the part of the National Executive Council, to facilitate appointment of Members of the Advisory Committee on Power of Mercy and to provide it with staff and facilities. The Committee has become defunct, leaving all prisoners sentenced to death with no effective opportunity to involve their right to full protection of the law by applying for exercise of the Power of Mercy”.

What is the consequence of an infringement of a right?

140. On the basis of the continuing constitutional infringements of their rights, it is now unfair and unreasonable to carry out the death sentence on the prisoners in question. They have all been in prison for more than five years. A couple of examples from overseas would help us appreciate the seriousness of what is before us.

141. In Jamaica, a prisoner who was in prison for 14 years successfully petitioned the Privy Council for commutation of his death sentence to life imprisonment: Pratt and Morgan v The Attorney General for Jamaica and another (Jamaica) (above). In its ruling, the Privy Council said:

“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over long extended period of time.”


142. The Privy Council was also of the view that a period of more than 5 years of delay in carrying out a death sentence constituted cruel and inhuman punishment:

“These considerations lead their Lordship to the conclusion that in any case in which the execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute ‘inhuman or degrading punishment or other treatment.’”

143. Article 21 of India’s Constitution mandates that no person shall “be deprived of his life or personal liberty except according to procedure established by law.” In the case of T.V. Vatheeswaran v. State of Tamil Nadu (above), Article 21 was invoked by a prisoner under sentence of death who had been in prison for nearly 10 years. The Supreme Court ruled that a delay of more than two years is unjust, unfair and unreasonable.

144. The Supreme Court, when converting a sentence of death to life imprisonment held:

“The dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. Making all reasonable allowance for the time necessary to appeal and consideration of reprieve, a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death.”


145. In this case, the primary Judge observed that if five years is used as the benchmark “there would perhaps be a reasonable argument to say that it is now too late to execute any of these prisoners, as their right of protection against inhuman punishment has been infringed.”

146. With due respect, I agree that five years is a reasonable benchmark and, on that basis, it is now too late to carry out the sentences of death on the prisoners in question.

What are the appropriate remedies for the infringements?

147. Under section 57 (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).”


148. In this case, the primary Judge ordered the NEC to make appointments to the Advisory Committee and, pending that, an order for a stay of execution was made on all the death sentences. In all the circumstances, the order against the NEC to make appointments to the Advisory Committee is firstly within the scope of the inquiry and, secondly, is the most logical and appropriate remedy in all the circumstances.

149. The Advisory Committee should be operational. Whatever the outcome of this appeal, the Advisory Committee is established by a Constitutional Law. The NEC is still required to give effect to the mandates of the Constitution, namely sections 151 and 152 and the Organic Law. Until such time the Advisory Committee is established, it is appropriate that execution of the prisoners should be placed on hold.

150. The stay order does not mean that the prisoners should be released from prison. Neither does it encroach on or interfere with the sentencing powers of the Supreme Court or the National Court under the Constitution and the Criminal Code. It is not the Supreme Court or the National Court’s responsibility to implement the death sentences and execute the prisoners. The stay order means that on account of post-sentence infringements of their constitutional rights, no execution should take place until such time the constitutional infringements and breaches are addressed. The Supreme Court in any pending appeal is not prevented by the stay order to exercise its powers according to law.

Conclusion

151. In all the circumstances, I am satisfied that there was overwhelming evidence of breaches and infringements of the prisoners’ constitutional rights, and for that reason, I would dismiss the first ground of appeal.

152. In relation to the second ground of appeal, I have found that the ruling in the Transferees case is wrong in law, and that the primary Judge was correct in finding that he was empowered by section 57 to commence the proceeding on his own initiative. Therefore, the second ground has not been made out and is also dismissed.

153. I have further found that the primary Judge was correct in his findings that there has been a “failure over an extended period on the part of the National Executive Council, to facilitate appointment of Members of the Advisory Committee on Power of Mercy and to provide it with staff and facilities. The Committee has become defunct, leaving all prisoners sentenced to death with no effective opportunity to involve their right to full protection of the law by applying for exercise of the Power of Mercy”. Therefore, the third ground of appeal is also dismissed.

154. I find ultimately that the primary Judge committed no identifiable error of law to justify the setting aside of his judgment. I would dismiss the entire appeal with costs.

155. MAKAIL, J: We heard this appeal and reserved our decision on 18th June 2020 to a date to be fixed. At the heart of the appeal is case of The State v. Transferees (2015) SC1451 (“The Transferees case”). I will return to discuss this case later in the judgment.

156. But first, the State and the Attorney-General appeal against the orders of the National Court constituted by Cannings J of 12th October 2017 wherein his Honour after declaring there had been a failure by the National Executive Council (“NEC”) to facilitate appointments of members of the Advisory Committee on the Power of Mercy (“Advisory Committee”), ordered firstly, that the NEC proceed to facilitate the appointment of the Advisory Committee members and secondly, ordered the stay of execution of all death penalties.

Background Facts

157. On 26th May 2015 Cannings J, on his own initiative, commenced proceeding under Section 57(1) of the Constitution to protect and enforce human rights of prisoners who have been sentenced to death. The primary judge stated that it was an “inquiry” rather than an adversarial court proceeding.

158. The proceeding was described as HROI No 2 of 2015. It set out the details of what the proceeding entailed and its expected outcome, amongst others, the following matters:

(a) Identification of those prisoners whom have been sentenced to death,

(b) Identification of the rights and freedom of those prisoners who have been sentenced to death,

(c) Identification of persons, public officials and public authorities who will assist in providing documents and other information relevant to the proceeding,

(d) Confirmation of appointment and operation of the Advisory Committee under the Constitution and Organic Law on the Advisory Committee on Power of Mercy,

(e) Confirmation of a report by the Committee to the NEC on prisoners who have been sentenced to death,

(f) Summons issued for the following persons to appear in person or by their legal representative before the Court:

(i) The Principal Legal Adviser to the NEC,

(ii) The Public Solicitor,

(iii) The Public Prosecutor,

(iv) The Commissioner of the Correctional Service (“CS”), and

(v) The Registrar of the National Court, and.

(g) Date, time and venue of first hearing being 29th May 2015 at 9:30 am at Waigani National Court.

159. According to the Court Transcripts provided in the Appeal Book, there is no Court Transcript of the hearing on 29th May 2015 and it is not known what transpired on that date. What is known is that there were hearings on 27thAugust, 1st October and 10th November 2015. It is also not known if the Public Prosecutor and the Registrar appeared and participated at the hearings. The Principal Legal Adviser to the NEC, the Commissioner of CS and the Public Solicitor appeared at the hearings.

160. The final hearing including submissions took place on 10th November 2015. The Principal Legal Adviser argued against any breach of rights and freedoms of the prisoners who have been sentenced to death while the Commissioner of CS provided information in relation to the identification of the prisoners.

161. In addition, relying on the decision of the Supreme Court in The Transferees case the Principal Legal Adviser contended that Section 57(1) of the Constitution did not confer jurisdiction on the National Court to protect and enforce breach of rights and freedoms of any person on its own initiative. Moreover, given the significance of the issue, the Principal Legal Adviser requested the primary judge to refer it to the Supreme Court for an opinion.

162. The Public Solicitor argued in support of breach of rights and freedom of these prisoners. The decision was reserved until 25th November 2015 at 9:30 am. However, it was not delivered until 12th October 2017. The primary judge held, amongst others, that the Supreme Court decision in The Transferees case was obiter dicta and not binding on him. Thus, it was open to him to assume jurisdiction and make the orders under appeal.


Grounds of Appeal


  1. There are three grounds of appeal:

(a) The first ground challenges the finding by the primary judge in relation to there being breaches of human rights of prisoners who were sentenced to death.


(b) The second ground challenges the jurisdiction of the National Court to commence proceeding on its own initiative under Order 23, rule 8 of the National Court Rules (“NCR”).


(c) The final ground challenges the finding by the primary judge that there has been failure on the part of the NEC to appoint members of the Advisory Committee.

Parties’ Submissions


164. Turning first to the second ground because it raises the threshold issue of jurisdiction of the National Court to commence proceeding on its own initiative, it is noted that the appellants refer to the decision of the Supreme Court in The Transferees case and argue that the primary judge erred in holding that Section 57(1) of the Constitution conferred jurisdiction on the National Court to commence proceeding on its own initiative to protect and enforce breach of a person’s rights and freedoms under the Constitution.


165. The Public Solicitor contends that, that decision was obiter dicta and the primary judge was not bound to follow it. He adds that the law has always been that Section 57(1) of the Constitution conferred jurisdiction on the National Court to commence proceeding on its own initiative to protect and enforce breach of rights and freedoms of persons under the Constitution. It was, therefore, within the jurisdiction of the primary judge to commence proceeding on his own initiative to protect and enforce the rights and freedoms of the prisoners who have been sentenced to death.


Obiter dictum


166. As to the submission by the Public Solicitor that the Supreme Court decision in The Transferees case is obiter dicta, it is noted that there have been numerous commentaries by legal scholars’ judicial expositions and judges in relation to the term obiter dictum. In our jurisdiction, a helpful discussion on this topic may be found in the judgment of Cannings J in Mathias Goma & 703 Ors v. Protect Security & Communication Limited (2013) SC1300. After citing with approval a passage by Sakora J in Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581, his Honour summarised the principles as follows:


167. Having regard to the above principles, the pertinent question is: is the Supreme Court decision in The Transferees case obiter dicta?


The Transferees Case


168. I return to discuss The Transferees case. That case was about an appeal against the decision of Cannings J given on 17th March 2014 at Lorengau, in respect of the proceedings titled: HR01 No 1. of 14: In the Matter of Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, s. 57, dismissing the appellants’ application for his Honour to disqualify himself on the grounds of apprehended bias and breach of natural justice.


169. The grounds of appeal raised issues of apprehension of bias against his Honour and breach of natural justice in the way the hearing was conducted. None of them alleged that the judge had no power to commence proceeding on his own initiative under Section 57(1).


170. Gavara-Nanu J with whom Sakora J agreed, were quite clear at [80] of the judgment that:

“...... although the issue is not raised as a ground of appeal, this Court as the highest court of the land with unlimited jurisdiction, is vested with the inherent discretionary power under s. 155(4) of the Constitution to consider and determine the issue as the justice of the case requires”.


171. Proceeding on the premise that it was open to them to determine the issue of jurisdiction, their Honours expressed a view that Section 57(1) did not confer power on the National Court to commence proceeding on its own initiative. They came to this conclusion after reviewing past cases such as Constitutional Reference No. 1 of 1977 [1977] PNGLR 326; Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 324; Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea and Utula Samana and Samson Kiamba [1981] PNGLR 396 and many other subsequent cases.

172. Their Honours further concluded that the National Court may invoke Section 57(1) and make an order or declaration only in an existing proceeding. This is quite plain from our reading of the judgment of Gavara-Nanu J thus:

“41. 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.” (Emphasis added).

173. Given this finding, their Honours further held that Order 23, rule 8 of the NCR which provides for the form and procedure for commencing a proceeding by the Court on its own initiative is inconsistent with Section 57(1) and should be struck out.
175. With respect, while I consider that the Supreme Court may in the exercise of its inherent powers under Section 155(4) of the Constitution consider the issue of jurisdiction without it being raised by the appellants, it was a threshold issue because it had the potential of terminating the proceeding without determining the merits of the appeal. Thus, in all fairness to the parties and in accordance with the principles of natural justice under Section 59 of the Constitution, the Supreme Court should have called for submissions from the parties before embarking on determining it. Here, I note parties were neither invited nor heard on this issue. Where parties are not invited or given an opportunity to address the issue raised by the Court, it lends support to the primary judge’s finding that the pronouncement of law in relation to the jurisdiction of the Court was obiter dicta.


176. With respect, this proposition is reinforced by Gavara-Nanu J’s admission at [30] of the judgment that it was not one of the issues for determination by the Court. Consequently, the Supreme Court (Gavara-Nanu J with whom Sakora J agreed) embarked on determining an issue that was not before the Court.


177. The third member of the Court, his Honour Ipang J, at [77] and [78] of the judgment commenced by defining the word “initiative” as supplied by Section 57(1) by making a reference to the dictionary definition in these words:

“The Concise Oxford Dictionary Tenth Edition Ed. by Judy Pearsall defines the word “initiative” 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.”

178. At [81] of the judgment, his Honour focused on what the inquiry entailed by making a distinction between it and an inquiry under the Commission of Inquiry Act, Ch 31 (“COI Act”) and concluded:

“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 (sic) (a friend of court)”.
179. There is no question that his Honour foresaw the procedural inadequacies which the Court has and will encounter in the further conduct of the proceeding as I note Order 23, rule 8 of the NCR provides, in brief, the procedure and form by which the National Court may commence a proceeding on its own initiative under Section 57(1). Form 126 of the NCR is the relevant form to adopt to commence proceeding by the Court on its own initiative. Beyond that, rule 8 does not define how the proceeding is to be conducted. However, his Honour did not make any conclusive finding on the question of jurisdiction. He went on to consider the merits of the appeal on firstly, the question of apprehension of bias and secondly, question of breach of natural justice.


180. With respect, given the manner in which the question of jurisdiction was raised and addressed by their Honours, (Sakora J & Gavara-Nanu J) I conclude that their Honours’ conclusion that Section 57(1) did not confer power on the National Court to commence proceeding on its own initiative was made in passing or obiter dicta. To that extend, I uphold the Public Solicitor’s submission that the primary judge was correct in holding that the decision of the Supreme Court in The Transferees case was obiter dicta and he was not bound to follow it.


181. Equally, pursuant to Schedule 2.5.9 (subordination of courts) of the Constitution, this Court is not bound to follow it. But that does not necessarily mean that neither the primary judge nor this Court should ignore it. An obiter dictum may be of persuasive value in appropriate cases: see the passage by Brightman LJ in Wadsworth v. Lydall [1981] 2 All ER 401 at 405-406; Waterboard v. NCD Interim Commission (1990) N868; Application by Gabriel Dusava (supra) and Mathias Goma & Ors (supra).

182. In this case, their Honours, Sakora J and Gavara-Nanu J examined in detail the issue of jurisdiction in their judgments. In my view, their pronouncement of the law under Section 57 (1) was not a casual expression of opinion but a deliberate one and is of strong persuasive value.

Jurisdiction of National Court


183. The real question is: does Section 57(1) confer power on the National Court to commence proceeding on its own initiative as held by the Supreme Court in The Transferees case? Section 57 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”.

(Emphasis added).


184. It is noted that in The Transferees case, the Supreme Court referred to Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266. That case deserves commenting on because it is an example of a case where the National Court commenced proceedings on its own initiative. In that case, Brunton AJ visited the Buimo Prison facility in Lae under the Visiting Justice (“VJ”) programme and received complaints from detainees about being detained in security cells and locked-up for trivial reasons including without being charged with any offence. A number of detainees were observed to have health problems, notably one had ringworm, another had scabies, and another was suffering from psychiatric disorder. Added to that, the kitchen was filthy and unfit for use. Then, there were no mosquito nets provided to the detainees even though mosquitoes were visible in the cell-blocks. Finally, detainees complained of being denied proper access to medical aid post and treatment. The judge directed a hearing on his own initiative under Section 57(1). That case shows that a proceeding commenced by a judge on his own initiative is not unprecedented. It has been done before and is consistent with the expressed words of Section 57(1) that “...the National Court...on its own initiative...” may commence proceeding.


185. In that judgment, the Court referred to an earlier case of Tom Amaiu v. The State [1983] PNGLR 87, a judgment of Bredmeyer J where breaches of the Corrective Institutions Act and the Corrective Institutions Regulations were considered breaches of the prisoner’s rights under Section 37(1) of the Constitution. That was not a proceeding commenced by the National Court on its own initiative but rather by the applicant Tom Amaiu to enforce his rights under Section 37(1) while serving time in prison. A series of orders were made to remedy the breaches including awards of compensatory and exemplary damages in the total sum of K6,574.00. That was an example of a case where the National Court invoked its powers under Section 57(1) and (3) on the application by Mr Amaiu. (Emphasis added).


186. As I noted earlier in The Transferees case, at [82] of the judgment of Ipang J, his Honour did refer to the Re Conditions at Buimo Corrective Institution case. That was in the context of appointment of amicus curiae (Friend of Court) but did not hold that it was an example of a case where the National Court judge invoked Section 57(1) to initiate own proceeding to look into the conditions at Buimo Corrective Institution. With respect, if their Honours Sakora J and Garava-Nanu J had considered it, they would have noted that it was a case where the judge directed a hearing on his own initiative after a VJ visit under Section 57(1).


187. Another significant case that adds to the different dimensions of the application of Section 57(1) is, Re Miriam Willingal [1997] PNGLR 119. That was a case where a young female in the Western Highlands Province was offered as part of a compensation package by her tribe. Injia J (as he then was) sitting as a National Court judge at Mt. Hagen was asked to intervene at the request of public interest group called Individual and Community Rights Advocacy Forum, (ICRAF) to enforce and protect the rights of the female victim under Section 57(1) and (2). The application was granted and orders were made to protect her from the breaches of her human rights.


188. The National Court has consistently invoked Section 57(1) on its own initiative over the years. In 2010, Ellis J conducted a VJ visit to Mukurumanda prison in Enga Province. His Honour commenced National Court proceeding on his own initiative after the visit to the prison facility and also the Wabag Police cell. It is another case where the National Court had commenced proceeding on its own initiative: see Re lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886.


189. Subsequent to The Transferees case, there were a number of reported cases where Cannings J commenced proceedings on his own initiative because he maintained, and quite correctly, that the pronouncement of the law by the Supreme Court in The Transferees case was obiter dicta and he was not bound to follow it. One of them is the Re Fish Ban Application (2020) N8221, a judgment delivered on 19th February 2020 on the fish ban in the sea of Basamuk Bay of Madang Province between September and December 2019.


190. Finally, the appellants cited the Constitutional Planning Committee Report (“CPC Report”). The CPC Report is a significant reference material to assist the Supreme Court to ascertain the intention by the Parliament to include Section 57 of the Constitution. The Report reads in part:


“On balance, we have concluded that the human rights provisions should be enforced by the Courts. We have recommended that not only the Supreme Court but the National Court and District (or Provincial) Courts should be able to decide such cases. Our purpose here is to ensure that the opportunity to raise human rights issues should not be stifled by being confined to the somewhat ratified atmosphere of the highest court in 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.”


191. The CPC Report was referred to by Kandakasi DCJ in the National Court case of Buni Morua & 79 Other Occupants of Portion 1189 of Laloki v. China Harbour Engineering Company (PNG) Limited & Anor (2020) N8188. In that case, his Honour was deciding, amongst others, the question of locus standi of the plaintiff to commence proceeding. After reviewing past cases on Section 57(1) such as Constitutional Reference No. 1 of 1977 (supra), Ralph Rakhinand Premdas (supra), Ready Mixed Concrete case (supra), Uma More v. The University of Papua New Guinea [1985] PNGLR 401 and many others, including The Transferees case (supra) his Honour concluded by way of an obiter dictum that Section 57(1) conferred jurisdiction on the National Court to commence proceeding on its own initiative to protect and enforce rights and freedoms of a person whose rights and freedoms have been breached.


192. His Honour also highlighted in the CPC Report that, one of the significant factors which underpins the power of the Court to commence proceedings on its own initiative was that, it was a quicker, cheaper and less cumbersome means by which ordinary Papua New Guineans may use to seek redress for breach or breaches or imminent breach or breaches of their rights and freedoms under the Constitution.


193. I respectfully cite the observations by the Deputy Chief Justice at [24] of his judgment:


“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 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 minimise further harm and breach if the breach was occurring or if imminent, likely or reasonable probable, stop any breaches from occurring and hence avoid any harm, damage or loss.”


(Emphasis added).


194. His Honour continued at [47] of the judgment:


“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.”


195. The intention and aspirations of the Constitutional Planning Committee (“CPC”) are reinforced by the plain English definition of the word “initiative” supplied in Section 57(1). It is defined in the Oxford Advanced Learners Dictionary 7thedn, Oxford University Press, 2005 at page 767 as, “the ability to decide and act on your own without waiting for somebody to tell you what to do”. In the legal context, it is the National Court who shall decide and act on its own without being prompted by someone to commence proceeding to protect and enforce rights and freedoms of a person whose rights and freedoms have been or about to be breached.


196. The Morua case is a National Court decision and is not binding on the Supreme Court. However, I find it of strong persuasive value and relevant to the appeal under consideration. With respect, I endorse the view expressed by the Deputy Chief Justice in the Morua case as being the correct interpretation of the application of Section 57(1). It is consistent with the expressed words of Section 57(1) and I uphold the Public Solicitor’s submission that it has always been the legal position that Section 57(1) conferred power on the National Court to commence proceeding on its own initiative. This being the case, I am not satisfied that the primary judge erred when he held that he had jurisdiction to initiate the proceeding on his own motion and heard the matter. This ground of appeal is dismissed.


Breach of Human Rights – Power of Mercy


197. Turning to the first and third grounds of appeal, the appellants seek to have this Court quash the findings by the primary judge that there have been breaches of human rights of prisoners who have been sentenced to death including failure by the NEC to facilitate the appointments of members of the Advisory Committee. I note at [53] of his judgment, the primary judge outlined what he considered to be human rights of prisoners who have been sentenced to death. His Honour found that these rights have been breached and they being:


198. The primary judge considered at [49] to [52] of his judgment that the breaches of these rights comprised of Sections 105 and 106 of the Correctional Service Regulation which conferred on “prisoners sentenced to death a right to special care and treatment”. Section 105 (conditions for detainees condemned to death) provides that every detainee who has been condemned to death shall, amongst others, be placed in a cell alone, and be observed at all times, and receive access to an area in the open air for exercise for three hours or more, and be medically examined once every 14 days, and have two visits of one half hour duration every week, and have individually prepared food.


199. Section 106 (commanding officer’s duties) provides for the rotation and change of correctional officer who observes a detainee who is condemned to death and provide access to the detainee to his or her legal advisers when requested by the detainee.


200. The second aspect of the prisoner’s rights is in relation to Sections 151 and 152 of the Constitution. Section 151 provides for, amongst others, grant of pardon or grant of remission or grant of commutation of sentence by the Head of State, acting with, and in accordance with, the advice of the NEC. Section 152 provides for the Advisory Committee, its appointment, constitution, powers and procedures. Of significance is its implied duty to provide a report to the NEC to consider in relation to the grant of pardon, etc.. to a prisoner under Section 151.


201. The appellants submit that there has been no breach of rights and freedoms of prisoners who have been sentenced to death. The principal reason being the Advisory Committee was in existence and functioning at the time the “inquiry” was held. The prisoners had the opportunity to apply to the Advisory Committee. There was no evidence that they were denied the opportunity to apply to the Advisory Committee. The Public Prosecutor adopts and endorses the appellants’ submission.


202. The Public Solicitor argues in defence of the primary judge’s finding on the grounds that the evidence presented by Dr. Lawrence Kalinoe in his capacity as the Secretary of the Department of Justice and Attorney-General was insufficient and irrelevant. As to the first ground, there was no notice of gazettal of the members of the Advisory Committee to verify Dr Kalinoe’s assertion that the Advisory Committee was in existence and functioning. As to the second ground, the report produced by Dr. Kalinoe was on Death Penalty and not on the Advisory Committee’s report to the NEC as envisaged by Section 152 (2) of the Constitution. Consequently, the orders made by the primary judge reflected the absence of evidence on the pertinent issues in relation to the existence and function of the Advisory Committee in giving the opportunity and facilitating the applications of the prisoners for grant of pardon.


203. The pertinent question is: were the rights of the prisoners breached? I note at [63] of the judgment that the primary judge’s immediate concern or what he described as “Most serious concern” is the prisoners’ access to the Advisory Committee which the Advisory Committee had not accorded to them because it was defunct. The other concern in relation to the prisoners’ welfare, health and wellbeing at the prison is secondary. For this reason, it will not be necessary to consider the first ground of appeal


204. My consideration will focus on the “most serious concern” as raised in the third ground of appeal. At [13] of the affidavit sworn 27th August 2015 Dr Kalinoe deposed that, “the current members were formally appointed by the Head of State on 18th February 2015 and these members have been notified of their appointments”. He went on to explain at [14] of his affidavit that, to get the Advisory Committee to operate, first it will require funding to be secured in the National Budget, second, preparation of the members for their roles and third, informing the prisoners of the availability of this avenue and how to access it. Thus, there was evidence that the appellants had taken steps to revive the defunct Advisory Committee.


205. However, the primary judge was more concerned about the waiting period between the death sentence of each prisoner and its implementation. Some of the prisoners have waited for more than ten years. Five of them have exhausted their right of appeal or review to the Supreme Court. In the waiting period, there is no evidence that the appellants facilitated the prisoners’ request for pardon to the Advisory Committee. Thus, while I agree with the appellants’ submission that there was no evidence from the prisoners that they had applied to the Advisory Committee to exercise its powers under Section 151, it was not feasible to do that because the Advisory Committee was defunct and it was not until 18th February 2015 when steps were taken to revive it. In essence, the evidence by the appellants was insufficient.


206. Secondly, Dr Kalinoe tendered a report on Death Penalty titled “Report to the NEC on Implementing the Death Penalty” dated 23rd August 2013. I note that the report is quite comprehensive based on extensive research by a five-member team of senior Government officials at Deputy Secretary level from the Department of Justice and Attorney-General, Department of Prime Minister and NEC, Police, Correctional Service and Constitutional Law Reform Commission who visited a selected-group of countries where death penalty has been introduced and implemented. These countries were the United States of America, Thailand, Singapore, Malaysia and Indonesia. In one case, the team visited an Execution or Death Chamber at the Walls Prison in Huntsville, in the State of Texas, USA to observe the facility and get first-hand information in relation to how an execution by lethal injection is carried out.


207. The Report covered different methods of execution such as execution by firing squad, execution by hanging, execution by lethal injection and execution by electrocution. It also included the ongoing debate about whether the death penalty was appropriate for the country and should be implemented having regard to the crime rate and the Christian values and principles. There are strong views against the implementation of the death penalty even though it has been legalised in the Criminal Code. The Report also looked at other options that may be available such as suspending the death penalty. Significantly, it included a guideline for the implementation of the death penalty. All it needs is the Executive Government to approve (determine) which method of execution is appropriate to adopt as prescribed by Section 614(1) (execution of sentence of death) of the Criminal Code (Amendment) Act No 6 of 2013.


208. The Death Penalty Report formed part of the appellants’ defence to the claim for breach of the prisoners’ rights and freedoms under Sections 36, 37 and 41 of the Constitution and dispelled any suggestion and adverse finding that they had failed to implement the death penalty imposed on each prisoner by the Court. It should be mentioned that the Report is a huge step forward towards implementing the death penalty. It is by no means an easy task for those charged with the responsibility to carrying it out. That must be weighed against the individual prisoner’s interest whose interest has been waiting for its implementation. There is still much work to be done to see its full implementation. However, it was not the report envisaged by Section 152(2). To that extent, the primary judge was correct in holding that the Death Penalty Report was irrelevant for the purpose of satisfying the requirements of Sections 151(1) and 152(2).


209. For these reasons, I am not satisfied that the primary judge erred when he held that there had been a failure over an extended period on the part of the appellants, in particular, the NEC to facilitate appointments of members of the Advisory Committee and ensure it is operational and such failure constituted a breach of the prisoners’ rights to full protection of the law under Section 37(1). The third ground of appeal is dismissed.


Necessary and Appropriate orders


210. Having found that there were breaches of the prisoners’ rights, the next pertinent question is: is this case necessary and appropriate for protection and enforcement of breaches of rights on its own initiative under Section 57(1)?


211. I consider that the power of the Court to make an order and/or declaration under Section 57(1) & (3) to protect and enforce a breach of human rights is not absolute or unlimited but must be made within the ambit of Section 57(6) “...are in addition to, and not in derogation of, their jurisdiction and power under any other provision of this constitution”.


212. With respect, I have no issue with the declaratory orders made by his Honour that the prisoners’ rights have been breached but I am not satisfied that there should be a further order directing the NEC to facilitate the appointments of the members of the Advisory Board which must happen before 1st January 2018. This sort of order should be made in a judicial review proceeding under Order 16 of the National Court Rules where the supervisory jurisdiction of the National Court is invoked by an aggrieved party, in this case, the prisoners to review the action or decision of the Advisory Committee. Only then will the National Court’s jurisdiction be validly engaged to review the exercise of power by the Advisory Committee and where it is found to have failed to discharge its functions, it does not necessarily mean that an order in the nature of prerogative writ will lie. The grant of such relief remains a matter of discretion having regard to the separation of power between the executive and judicial arms of government. With respect, the order under consideration has no legal basis because none of the prisoners had filed a juridical review proceeding against the Advisory Committee and had sought such an order. In my view, a court’s own initiative proceeding under Section 57(1) is no substitute for the prisoners. The proceeding was an abuse of process of the court and should be dismissed.


213. Secondly, the order to stay the execution of the death sentences raises the question whether it is necessary and appropriate for such an order to be made. I consider that the order to stay be it temporary or permanent is erroneous and ultra vires the power of the primary judge conferred by Section 57(2) and (6). There are a number of reasons for that.


214. First, these prisoners were convicted for wilful murder by the National Court and each was sentenced to death. Some have filed appeals or reviews and have been completed. Consequently, they have exhausted their right to appeal or review. Others have filed appeals or review and are pending. They have not exhausted their right of appeal or review. Only the Supreme Court may quash or substitute the conviction and/or sentence imposed by the National Court. For those prisoners whose appeals or reviews are pending, it is their duty to prosecute them without delay. In my view, that is where the Supreme Court’s jurisdiction is correctly invoked to enable it to revisit the decision of the National Court under Sections 22 and 23 of the Supreme Court Act. Any proceeding outside this process which seeks to overturn or set aside the decision of the National Court is ultra vires the power of the Supreme Court and National Court and constitutes as abuse of process.


215. Secondly, where the prisoners have exhausted their right of appeal or review and are unsuccessful, they may choose to apply to the Advisory Committee for grant of pardon under Sections 151 and 152. The powers and functions of the Advisory Committee are prescribed in the Organic Law on the Advisory Committee on the Power of Mercy (“OLACPOM”). However, there are no prescribed guidelines by which the Advisory Committee may adopt to determine whether the NEC should be advised to recommend to the Head of State to grant pardon to prisoners condemned to death.


216. The only reference in relation to how it functions is under Section 2(2) where the Advisory Committee “shall be given full and free access to all records relating to the offences which, and the offender whom, it is considering”. I consider that one of the matters that the Advisory Committee may take into account is the rehabilitation of the prisoner. This information would presumably come from the head of the prison facility where the prisoner is serving. It is a key factor for deciding whether the prisoner should be granted a pardon by the Executive Government. Has the prisoner rehabilitated? Will he not re-offend if he is granted pardon and released into the community? There is no evidence that the primary judge had this information in order for him to be able to form a view that the death sentences be stayed.


217. Thirdly, as a matter of public policy, the Court must weigh the interest of the prisoner against the interest of the public. Moreover, there is the interest of the victim (deceased) that must be taken into account. There is no evidence that the primary judge invited or received the views of the relatives of the deceased before making the order for stay.


218. From the judgment, it is noted that the prisoners were violent offenders. Six of them were responsible for the killing of eight deceased persons on a dinghy between Kokopo and West Coast Namatanai. One killed a woman who he claimed was a sorcerer and responsible for the death of his parents in Milne Bay Province. Another killed a man in Wabag. Another raped a woman and then killed her in Vanimo and another shot and killed a policeman in Mendi. Another two were responsible for the killing of a group of adults and children at Bena-Bena in the Eastern Highlands Province. The second last prisoner killed a 28-year-old female and her two daughters, aged 6 years and 12 years on Mal Island in the Manus Province. The last prisoner killed three men and a woman during an armed robbery at Koki in Port Moresby.


219. In my respectful view, it is the Advisory Committee who is mandated by law (Constitution and Organic Law) to provide the appropriate advice by way of a report to the NEC on the application of the prisoners who have been sentenced to death. The final decision is made by the Head of State acting with, and in accordance with, the advice of the NEC under Section 151(1). There is neither an expressed nor implied power conferred on the Advisory Committee under Section 151 (1) to stay the execution of the sentence of death regardless of whether it is temporary (interim) or permanent. The primary judge simply had no power to stay the execution of the sentence of death of these prisoners. In proceeding as he did, he has usurped the powers of the Advisory Committee.

220. If the primary judge had ordered, as he did, that the appellants facilitate the appointments of the members and ensure that they provide a report to the NEC that is all he may order. But that must be done in a judicial review proceeding commenced by the prisoners under Order 16 of the National Court Rules and if the order has not been complied with, the NEC, the State and its servants and agents may be cited for contempt. Such action taken by the Court to enforce compliance with its orders would be appropriate and within the jurisdiction of the National Court. To issue a temporary stay order of the execution of the death sentences was not only ultra vires the power of the National Court but also unnecessary and inappropriate in the given circumstances.


221. For the forgoing reasons, the primary judge erred when he directed the appellants to facilitate the appointments of the members of the Advisory Committee and provide a report to the NEC and further, ordered a stay of the execution of the death sentences pending the appointments of members of the Advisory Committee.


Conclusion


222. I have dismissed the ground on the question of jurisdiction and further dismissed the ground on the findings against the appellants for breaches of prisoners’ rights in relation to the power of mercy under the Constitution. However, I have found that the HR OI proceeding was an abuse of process and the orders were ultra vires, unnecessary and inappropriate in the given circumstances. It follows that the appeal will be upheld in part. As it was an “inquiry” by the National Court on its own initiative, each party shall bear their own costs of the appeal.


Order


223. The orders are:


1. The appeal is upheld in part.


  1. The ground of appeal in relation to the National Court having lacked jurisdiction to commence proceeding on its own initiative under Section 57(1) of the Constitution is dismissed.
  2. The ground of appeal in relation to the findings that there had been a failure over an extended period on the part of the appellants, in particular, the NEC to facilitate appointments of members of the Advisory Committee and ensure it is operational and such failure constituted a breach of the prisoners’ rights to full protect of the law under Section 37(1) of the Constitution is dismissed.
  3. The order of the National Court directing the appellants to facilitate the appointments of the members of the Advisory Committee on the Power of Mercy and provide a Report to the National Executive Council given on 12th October 2017 in proceeding described as HROI No 2 of 2015: Re Human Rights of Prisoners Sentenced to Death is quashed forthwith.
  4. The order of the National Court in relation to temporary stay of the death sentences of prisoners sentenced to death given on 12th October 2017 in proceeding described as HROI No 2 of 2015: Re Human Rights of Prisoners Sentenced to Death is quashed forthwith.
  5. Each party shall bear their own costs of the appeal.
  6. Time for entry of these orders, shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.

224. KARIKO, J: The State and the Attorney General filed this appeal against the decision of his Honour Cannings J in the National Court at Waigani, given on 12th October 2017 in proceeding HROI 2 of 2015: In the Matter of Enforcement of Basic Rights Under Section 57 of the Constitution of The Independent State of Papua New Guinea, Re Prisoners Sentenced to Death.
225. The proceeding was an inquiry commenced by his Honour acting on his “own initiative” under s.57(1) of the Constitution and O23 r8 of the National Court Rules. His Honour’s judgment is published and numbered as Re Human Rights of prisoners sentenced to death (2017) N6939.


The inquiry


226. The appealed Judge determined that sitting as the National Court, he had jurisdiction to conduct the inquiry notwithstanding the contrary view expressed by the Supreme Court (Sakora J, Gavara-Nanu J and Ipang J) in The State v Transferees (2015) SC1451 (the Transferees Case). His Honour decided not to follow that decision as he regarded the opinion of the Supreme Court obiter dictum, and therefore it was of persuasive value only and not binding on the National Court, according with the case authorities of Enforcement Pursuant to Constitution s.57: Application by Gabriel Dusava (1998) SC581 and Mathias Goma v Protect Security & Communication Ltd (2013) SC1300. His Honour also considered the Supreme Court decision wrong in law, reasoning that:


(1) The Court wrongly interpreted and interpreted s.57(1) of the Constitution and in particular the phrase “own initiative”.

(2) Pursuant to ss. 22, 23, 57(3) and 155(4) of the Constitution, the Courts are obliged to protect and enforce human right, including commencing proceedings where there is a breach or apprehension of a breach of the rights.

227. The proceeding HROI 2 of 2015 was initiated by the filing of a Form 126 pursuant to O23 r(8)(2) of the National Court Rules, which notes that the decision to initiate the proceeding was essentially based on these facts and circumstances:


(1) That prisoners under the death sentence have human rights; and

(2) That it is not known whether those rights are being fully enforced, and in particular:

228. The purposes of the inquiry, as expressed by his Honour in his judgment, was to:


229. The following officials were summoned under s.57(3) of the Constitution to appear at the inquiry as respondents, and they were directed to submit evidence to assist the inquiry:


(1) the Principal Legal Adviser to the National Executive Council, namely, the Attorney General;
(2) the Public Solicitor;
(3) the Public Prosecutor;
(4) the Commissioner of the Correctional Services; and
(5) the Registrar of the National Court and the Supreme Court.

230. After considering the evidence produced by the respondents and their submissions, the appealed Judge found that the ACPM had become defunct or not operational, which meant that all prisoners sentenced to death were and are being denied the full protection of the law, contrary to s.37(1) of the Constitution.


231. Pursuant to ss.23(1), 57(3) and 155(4) of the Constitution, his Honour declared and ordered on 12th October 2017 that:


“(1) There has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to facilitate appointments of members of the Advisory Committee on the Power of Mercy under the Organic Law on the Advisory Committee on the Power of Mercy and to ensure that arrangements are made, and staff and facilities provided and steps taken to enable and facilitate and convenient performance of its functions, the consequence being that the human rights of prisoners sentenced to death are being infringed in that they are each being denied the full protection of the law, contrary to Section 37(1) of the Constitution.


(2) The National Executive Council shall, in compliance with Section 1 of the Organic Law on the Advisory Committee on the Power of Mercy and Section 225 of the Constitution, by 1st January 2018 facilitate appointments of members of the Advisory Committee on the Power of Mercy and ensure that all arrangements are made, staff and facilities are provided and steps are taken to enable and facilitate, as far as may reasonable be, the proper and convenient performance of its functions.


(3) Unless and until Order No. 2 is complied with, the execution of any prisoner who has been sentenced to death, irresponsible of whether his appeal and review rights has been exhausted, is stayed.

(4) These proceedings are thereby closed.”

The appeal


232. There are three grounds of appeal:


“(1) His Honour erred in law:


(c) The National Court erred in commencing the proceedings under Order 23 Rule 8 of the National Court Rules as an inquiry into alleged breaches of human rights of prisoners sentenced to death as there had been no breaches of human rights of the prisoners concerned.

(d) The National Court erred in continuing and persisting on with the proceedings commenced under Order 23 Rule 8 of the National Court Rules inspite and despite of the challenge to jurisdiction made by the Principal Legal Adviser relying on the obiter but forceful decision by the Supreme Court in The Independent State of Papua New Guinea v The Transferees SC1451 which has declared Order 23 Rule 8 unconstitutional and invalidated the said Rule.

(2) His Honour erred in law and fact when he made the finding there has been “failure over an extended period on the part of the National executive Council, to facilitate appointment of Members of the Advisory Committee on Power of Mercy and to provide it with staff and facilities. The Committee has been defunct, leaving all prisoners sentenced to death with no effective opportunity to involve their right to full protection of the law by applying for exercise of the Power of Mercy” as this was contrary to the evidence and submission on the law, process and procedure on clemency under Papua New Guinea law. ”

Issues


233. I list the relevant questions raised by the grounds of appeal, in the order that I believe is logical to answer them:


(1) Did the primary Judge err in law in fact and law deciding that he was not bound by or that he should not follow the Supreme Court decision in the Transferees Case that held the National Court does not have jurisdiction to commence an inquiry on its own initiative pursuant to O23 r8 of the National Court Rules?

(2) If the answer to (1) is “no”, was there proper basis for his Honour to have invoked O23 r8?

(3) If the answer to (2) is “yes”, was there evidence that properly proved a breach of s.37(1) of the Constitution to justify the Order?

Submissions


234. Counsel for the appellants, supported by the Public Prosecutor, submitted that:


(1) the issue of jurisdiction is a threshold issue and the Supreme Court in the Transferees Case was entitled in exercising its inherent powers under s.155(4) of the Constitution, to raise the issue even though it was not a ground of appeal. As the jurisdictional issue effectively disposed of the matter, the decision on jurisdiction cannot be regarded as obiter. The appealed Judge was therefore obliged by law to follow the decision in the Transferees Case.

(2) Contrary to the appealed Judge’s finding, the relevant evidence which is found in the affidavit of the Attorney General, confirmed that the ACPM was in operation.

(3) While the law entitles prisoners under the death sentence to apply to the ACPM for pardon or clemency, there was no evidence that the prisoners were prohibited or barred from making such application, thereby denying them the protection guaranteed by s.37 of the Constitution.

235. The Public Solicitor, who opposed the appeal, argued that:


(1) The decision in the Transferees Case regarding jurisdiction was correctly regarded as obiter dictum as that issue was not a ground of appeal, and therefore it was not binding on the National Court according to law.

(2) While the evidence of the Attorney General was that the members of the ACPM had been duly appointed and the appointments gazetted, a copy of the gazettal notice was not produced to corroborate the evidence. The appealed Judge was therefore entitled to conclude that the Committee was defunct.

236. The fourth respondent took a neutral position in this appeal.


237. It is significant to note that none of the counsel presented any detailed submissions on the merits of the appealed Judge’s reasons for disagreeing with the Supreme Court’s decision in the Transferees Case. Rather, submissions were more focussed on whether or not the decision was obiter dictum.


Transferees Case


238. I consider it useful to set out the views expressed by their Honours in the Transferees Case relating to the question of jurisdiction, as that is very relevant in answering the first issue in this appeal.


239. The Supreme Court in the Transferees Case heard an appeal against the conduct of an inquiry also initiated by Cannings J under O.23 r.8 of the National Court Rules. The appeal questioned the propriety of the conduct of the inquiry, and in particular the procedures applied. The appeal further alleged breach of natural justice and apprehension of bias in relation to the calling of a personal acquaintance of his Honour as an expert witness. The Court upheld the grounds of appeal and also determined that the National Court does not have jurisdiction to commence proceedings on its own initiative in the form of an inquiry under O.23 r.8 of the National Court Rules.


240. The leading opinion in the Transferees Case was delivered by Gavara-Nanu J, who commenced his discussion by stating at [30]:


“The first issue that arises for determination is whether the learned primary judge had power under s. 57 (1) of the Constitution to initiate or commence proceeding HROI No.1 of 2014 at all. This is a threshold issue which underpins all the issues arising in this appeal and goes to the jurisdiction of the court. Thus, although the issue is not raised as a ground of appeal, this Court as the highest court of the land with unlimited jurisdiction, is invested with inherent discretionary power under s. 155 (4) of the Constitution to consider and determine the issue as the justice of the case requires: Reference by East Sepik Provincial Executive (2011) SC.1154 and Avia Aihi v. The State (No.1) [1981] PNGLR 81.”


(My emphasis)


241. His Honour then referred to s.57(1) of the Constitution and held that it does not confer power on either the National Court or the Supreme Court to initiate or commence court proceeding, let alone an inquiry on their own initiative or unilaterally. His Honour reasoned:


“35. 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. A line of case authority reinforces this view: Constitutional Reference No. 1 of 1977 [1977] PNGLR 362. 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. At p. 373, the Court said:


“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”. (my underlining)


  1. In the case of Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329, this Court considered s. 57 (1) in the context of protecting the applicant’s rights whose permit to enter the country had been revoked 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.” (my underlining)


  1. In Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea and Utula Samana and Samson Kiamba [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.” (my underlining)


  1. This decision has been adopted with approval by this Court in Gregory Puli Manda v. Yatala Ltd (2009) SC974 and Koang No. 47 Ltd v. Mondo Merchants Ltd and Melpa Properties Limited (2001) SC 675. Having regard to the principles applied in these cases I conclude that the approach adopted by the learned primary judge was inconsistent with the intention and spirit of s. 57 (1). For the same reason, I also find that proceeding HROI No. 1 of 2014, is an abuse of the processes of the Court. I also find Order 23 Rule 8 of the National Court Rules to be inconsistent with Constitution, s.57 (1). ”

(My emphasis)


242. His Honour Gavara-Nanu J stated that pursuant to s.184 of the Constitution, rules of court must not be inconsistent with the Constitution or an Act of the Parliament, and concluded at [40]:


“Having found Order 23 Rule 8 to be inconsistent with s. 57 (1), pursuant to ss. 184 (1) and 155 (4) of the Constitution, I declare Rule 8 and Form 126 to be unconstitutional such that it should be struck out: Constitution Reference No.1 of 1977 (supra); Reference by East Sepik Provincial Executive (supra); Reference by Dr. Allan Marat, in the matter of Prime Minister and NEC Act, 2002 Amendments (2012) SC1187; Special Reference by Morobe Provincial Executive; re Election of Governor General (2010) SC1085 and Luis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144.”

(My emphasis)


243. His Honour then addressed the power of the court under s.57(3) at [41]:


“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.”

(My emphasis)


244. At [2], his Honour Sakora J had this to say regarding s.57(1) and jurisdiction:


“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.”


(My emphasis)


245. His Honour then went on to comment on the conduct of an inquiry:


“6. In respect of the grievance of the appellants as to his Honour’s refusal of their application to disqualify himself, once again my two brothers have, with respect, discussed the pertinent principles adequately. It is not without significance to note that the factual circumstances giving rise to the application of the appellants are not in dispute at all. In my respectful opinion, his Honour, in invoking a purported power under s 57 (1) Constitution, proceeded in a judicial or quasi-judicial methodology normally associated with the inquisitorial procedures of continental (European) civil systems. A system diametrically opposed to the common law adversarial fact finding and law application procedures we are familiar with here.


  1. Not independent arbiters, the French judges are part of the machinery of the State, and courtroom procedure, for example in criminal trials, is characterised by the inquisitorial method. Presiding judges actively, quite vehemently and acidly, participate in the courtroom questioning, preceded by bringing and calling of witnesses.
  2. Contrasted with that is the system we are intended to operate under, which, in essence, is where the judge functions as an independent arbiter between the State and the individual or between the litigating parties. This is a concept basic to the common law proceedings. Jurisprudential theory and practice has it that this system has been in vogue since its adoption in Rome in the 4th or 5th century BC, “where - for better or for worse, and quite conceivably the latter – the judge’s task changed from determining the truth to the umpiring of a competition.”

(My emphasis)


246. His Honour Ipang J, also criticized the conduct of the inquiry, noting that Cannings J had acted as “a party, prosecutor, witness, counsel and Judge”, and stated at [81]:


“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.”

(My emphasis)


247. Aside from their Honour’s conclusion that the conduct of the inquiry was unconstitutional, their Honours also determined that grounds of appeal in respect of breach of natural justice/apprehension of bias, had merit. The Court accordingly upheld the appeal and ordered:


“1. The Appeal is allowed;

  1. Consequent upon the finding of unconstitutionality in relation to the invoking of and proceeding under s. 57(1) of the Constitution, the proceedings HROI No.1 of 2014 be declared void;
  2. The entire proceedings be declared void;
  3. The respondents pay the appeal the appellants costs of and incidental to this appeal.”

Was the decision on jurisdiction obiter?


248. A very instructive discussion of the concept of obiter dicta is found in the judgment of Sakora J in Enforcement Pursuant to Constitution s 57; Application by Gabriel Dusava (1998) SC581, which was approved by the majority of the Supreme Court in Mathias Goma v Protect Security & Communication Ltd (2013) SC1300. In the latter case, Cannings J (with whom Injia CJ agreed), fairly summarized the principles explained by Sakora J, and these includes the description that “obiter dicta are statements of law or other observations made by a Judge or a Court, either orally or in a written judgment, which were not necessary to the disposition or final decision in the case”.


249. I also have regard to the following definitions of the terms obiter dictum (plural obiter dicta) and ratio decidendi as stated in the Oxford Dictionary of Law, 7th Edition:


“obiter dictum [Latin: a remark in passing] Something said by a judge while giving judgment that was not essential to the decision in the case. It does not form part of the ratio decidendi of the case and therefore creates no binding precedent but may be cited as persuasive authority in later cases.


ratio decidendi [Latin: the reason for deciding] The principles or principles of law on which the court reaches its decision. The ratio of the case has to be deduced from its facts, the reasons the court gave for reaching its decision, and the decision itself. It is said to be the statement of law applied to the material facts. On the ratio of a case is binding on inferior courts by reason of the doctrine of precedent.”


250. As noted earlier, the appealed Judge in the present case considered the Supreme Court’s decision on jurisdiction in the Transferees Case to be obiter dictum, and stated that while the higher court’s decision was of persuasive value, he was not bound to follow it as he viewed it to be wrong in law. His Honour explained that jurisdiction of the National Court was not an issue on the appeal, and was outside the grounds of appeal. His Honour then expressed the reasons why he was not inclined to follow the decision.


251. The appealed Judge reckoned at [7]-[8] of his judgement that none of the grounds of appeal in the Transferees Case was about lack of jurisdiction or error of law by using inquisitorial procedures or conducting the proceedings as an inquiry, and that the discussion about lack of jurisdiction was unnecessary in determining the appeal.


252. The grounds of appeal in the Transferees Case were that:


“1.0 His Honour erred in law and fact when he overruled that submission that he was a party, prosecutor, witness, counsel and Judge when in fact the entire proceedings clearly makes him so.

1.1 His Honour, invoked his powers under Section 57 (1) of the Constitution to commence the Human Rights proceedings.

1.2 His Honour made allegations in the prescribed Form 126 when initiating the Human Rights proceedings.

1.3 His Honour issued summons and made various interlocutory orders and gave various directions, at times, unilaterally.

1.4 His Honour presided and continues to preside over the matter.

1.5 His Honour, acted as the complainant or accuser, as a party, prosecutor, a witness, counsel and Judge in the proceedings which places him in conflict.

1.6 His Honour set a tight time frame which clearly denied the applicants the right to properly and fully defend the allegations of alleged breaches of Human Rights.


2.0 His Honour erred in law and fact and acted in breach of natural justice principles as enshrined under Section 59 of the Constitution when he failed to disclose to the Applicants his personal relationship and or friendship with a key expert witness, Dr Crouch-Chivers prior to appointing him as a Specialist Consultant in Clinical and Public Health on 6 March, 2014.


3.0 Any reasonable and fair-minded person would have inferred an apprehension of bias regarding his Honour’s relationship with Dr Crouch–Chivers, on the following grounds:


3.1 His Honour unilaterally appointed Dr Crouch-Chivers on March, 2014, without inviting any submissions by the Applicants or the parties;

3.2 The fact of the personal relationship and or friendship of his Honour and Dr Crouch-Chivers was a fact his Honour had full knowledge of at the time of appointing him on 6 March, 2014, but he did not disclose that fact to the Applicants or the parties because he “considered it unnecessary to disclose”.

3.3 It was only after the filing of the Notice of Motion by the appellants to recuse his Honour on 14 March, 2014, that his Honour, decided to give disclosure on Monday, 17 March, 2014.

3.4 Dr Crouch-Chiver's report as an expert will significantly influence and affect the likely decision or finding in the inquiry and the fact of his relationship with his Honour, raises an apprehension of bias, which is not fanciful but reasonable.


4.0 Such other grounds which may arise during the course of the hearing of the appeal.”

(My underlining)


253. It is obvious the appeal in the Transferees case challenged two aspects of the decision of the primary Judge:


(1) The conduct of the inquiry; and
(2) Breach of natural justice/apprehension of bias (in the calling of Dr Crouch-Chivers as a witness).

254. Gavara-Nanu J considered as “a threshold issue” going to jurisdiction, the question whether the primary judge had power under s.57(1) of the Constitution to initiate the proceeding. While his Honour acknowledged at [30] of his opinion that jurisdiction was not an issue raised as a ground of appeal, he justified that the Supreme Court had inherent discretionary power under s.155(4) of the Constitution to consider and determine the issue.


255. It is my respectful view that although the application of s.57(1) of the Constitution was not specifically raised as a ground of appeal, I consider that it was relevant to the question whether the inquiry was lawful, a question concerning jurisdiction which was fairly raised by Ground 1 of the appeal.


256. The appellant’s first contention in the Transferees Case was that the manner of conducting the inquiry involved the appealed Judge acting in the case as “a party, prosecutor, witness, counsel and judge”, which is contrary to the law. This ground noted that s.57(1) of the Constitution had been invoked to commence the inquiry.


257. Ipang J agreed with the objection to the conduct of the inquiry raised by the appellant in the National Court and repeated in the appeal, and found the appealed Judge erred. His Honour reasoned that an inquiry is usually established under the Commission of Inquiry Act, Ch.31 whereby counsel assisting the inquiry is appointed. To be seen as an independent arbiter or “removed from the arena”, Ipang J suggested the appealed Judge ought to have at least similarly appointed counsel assisting the inquiry.


258. Sakora J opined that the appealed Judge applied the inquisitorial system of proceedings found in European civil law countries, that contrasts with the adversarial system our courts have adopted under the common law. His Honour explained that whereas the inquisitorial system involves Judges actively participating in investigations and calling of witnesses, it is the parties that decide on the evidence to produce and the witnesses to call in the adversarial system, where the Judge is an independent referee. He also endorsed Gavara-Nanu’s interpretation and application of s.57(1) of the Constitution.


259. Gavara-Nanu J reasoned that s.57(1) gave both the National Courts powers to act on its own initiative to enforce a breach of a constitutional right, but it is a power to be exercised in the course of proceedings. His Honour also explained that the orders that may be issued under s.57(3) of the Constitution must be for the purpose of an enforcement under s.57(1), and cannot be applied as was done by the appealed Judge to issue summons for witnesses. His Honour concluded therefrom that s.57(1) was incorrectly invoked to conduct the inquiry, rendering O.23 r.8 of the National Court Rules, which provides for the establishment of an inquiry, unconstitutional.


260. Proper analysis of the reasoning by their Honours leads me to the view that it is not correct to classify the judgment on jurisdiction as obiter dictum. With respect, I consider jurisdiction was an issue raised by the first ground of appeal.


261. Even if the first ground of appeal did not concern jurisdiction, the Supreme Court in Amet v. Yama (2010) SC1064 affirmed that the question of jurisdiction can be raised at any time, including by the Supreme Court in the exercise of its inherent powers.


262. The only basis why the appealed Judge regarded the decision in the Transferees Case as obiter was because of the concession by Gavara-Nanu J that jurisdiction, and in particular the power under s.57(1) of the Constitution to initiate an inquiry, was not an issue raised as a ground of appeal.

263. The transcript of the inquiry in the present case notes that counsel from the Office of the Public Solicitor advised from the bar table that parties were not given the opportunity to address the Supreme Court on the issue of jurisdiction and a slip rule application was filed for that reason. This record in the transcript is not proper evidence of the proceedings before the Supreme Court in the Transferees Case, and it must be safely assumed that any slip rule application did not succeed because the decision in the Transferees Case still stands. Relevantly and correctly, the appealed Judge did not refer to or rely on that evidence from the bar table in deciding that the decision in the Transferees Case was obiter.
264. It is important to highlight that the Supreme Court in the Transferees Case gave a reasoned opinion on why it considered the establishment and conduct of the inquiry to be unlawful, while finding O.23 r.8 of the National Court Rules to be unconstitutional. This decision not only formed one of the reasons for upholding the appeal, but it also determined the inquiry. The Supreme Court declared the inquiry void. It was not permanently stayed as stated by the appealed Judge at [19] of his judgement in Re Human Rights of prisoners sentenced to death (supra).


265. The decision regarding jurisdiction was not founded on a technical reason such as time-bar under the Frauds and Limitations Act 1988, or failure to give notice under s.5 of the Claims By and Against the State Act 1996. It was not obiter dicta but ratio decidendi, as principles of law were applied to the facts upon which the court reached its decision. In accordance with Schedule 2.9(1) of the Constitution, the National Court is bound by the decision.


266. In my respectful view, since the decision on jurisdiction and the decision on the other ground of appeal (breach of natural justice/apprehension of bias) decided the appeal, and because each of them was determinative of the appeal, each decision is part of the ratio decidendi. As affirmed in the persuasive case of McBride v Monzie Pty Ltd [2007] FCA 1947 at [6]:


“The ratio of a case is the ruling on a point of law upon which the judge acts to reach his (or her) conclusion: Cross & Harris, Precedent in English Law (4th ed, 1990) at 72. If a judge gives two or more alternative reasons for reaching his (or her) decision each reason is part of the ratio: Crowther v Thorley (1884) 50 LT 43, 46; Commissioners of Taxation for New South Wales v Palmer [1907] UKLawRpAC 3; [1907] AC 179, 184; Cheater v Cater [1918] 1 KB 247, 252; London Jewellers Ltd v Attenborough [1934] 2 KB 206, 222; Jacobs v London City Council [1950] AC 361, 369; Bristol-Meyers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316; (2000) 97 FCR 524, 570-571.” (My emphasis)


267. It is clear that if the grounds of appeal relating to the calling of the expert witness Dr Crouch-Chivers had been dismissed, the Supreme Court would have been still entitled to allow the appeal on the question of jurisdiction.


268. I uphold the second ground of appeal to the extent that I find that the appealed Judge was obligated not to conduct the inquiry pursuant to O.23 r.8 of the National Court Rules, not because the decision of the Supreme Court in the Transferees case on jurisdiction is a forceful obiter, but rather it formed the ratio decidendi of the case.


Correctness of the Transferees Case


269. As is obvious, my opinion herein does not consider the merits of the decision in the Transferees Case, due to my finding that the decision is ratio and not obiter.


270. That aside, I consider the question of whether or not that decision is correct in law was not comprehensively explored on this appeal and critically, this Court did not have the benefit of full and proper submissions from the parties. With respect, it appeared to me that counsel were not adequately prepared, for instance, to argue the interpretation and application of s.57(1) of the Constitution. This was reflected by the generalized and often hesitant responses by counsel to questions posed by the President of this Court regarding this issue.


271. Other related and important questions arising from the decision in the Transferees Case, and which were not discussed on hearing this appeal include:

272. Counsel largely concentrated submissions on the question of whether the decision was obiter or not, and they did not fully debate whether the decision was wrong in law as viewed by the appealed Judge.
273. Incidentally, I note that his Honour’s position relating to the interpretation and application of s.57(1) of the Constitution is principally shared by Deputy Chief Justice Kandakasi through his remarks in Buni Morua & 79 Others v. China Harbour Engineering Company Ltd (2020) N8188, which he recently adopted in The State v. Kenneth Kunda Siune (2021) SC2070.


274. Be that as it may, I respectfully consider that the question whether the decision on jurisdiction in the Transferees Case is correct in law or not, must necessarily wait for a suitable occasion for it to be properly and fully ventilated. Such occasion could be as suggested by the Attorney General in the court below, and that is by way of properly framed questions in a reference or even a stated-case argued before an appropriately constituted Supreme Court.


275. Having found that the appealed Judge was bound by the Supreme Court decision on jurisdiction in the Transferees case, this appeal can be upheld for that reason alone. While it is then not necessary to address the other two grounds of appeal, I will nevertheless consider them for completeness, and on the assumption that I am wrong in my answer to the first issue.


Was the inquiry justified?


276. The appellants contend that in any event, there was no proper basis for the appealed Judge to invoke the power provided by s.57(1) of the Constitution to conduct the inquiry pursuant to O.23 r.8 of the National Court Rules.


277. Under s.57(1) of the Constitution, the National Court is empowered to protect and enforce the Basic Rights (or human rights) provided by the Constitution. O.23 r.8(1) permits a Judge to commence proceedings under s.57 of the Constitution where “a Judge observes, or is informed by the Registrar or Sherrif or one of their officers of a fact or matter which may constitute a breach of Basic Rights”.


278. In my opinion, there must be some factual basis upon which the court may act under s.57 and O.23 r.8. In the present case, there is no evidence that his Honour was informed by any of the described court officers or anybody else for that matter, of actual or probable breach of the basic rights or human rights of prisoners under the death sentence. Neither did the appealed Judge state that he had observed possible breaches of the basic rights or human rights of such prisoners. Indeed, after noting in the Form 126 that the prisoners have human rights, his Honour added that “it is not known whether those rights are being fully enforced”.


279. I believe that his Honour, cognizant that prisoners sentenced to death have human rights, queried out aloud as it were, if those prisoners were being fully afforded those rights. His Honour stated in the Form 126 that the purpose of the proceeding was:


“(1) To identify the nature and extent of the guaranteed rights and freedoms of those prisoners who have been sentenced to death; and


(2) To inquire into whether those rights and freedoms have been or are being enforced and protected; and


(3) In cases of actual or a reasonable probability of infringement of those rights and freedoms, to consider making order and declarations and granting other relief under Sections 57 or 58 of the Constitution.”

(My underlining)


280. In the introductory narrative in the Form 126, there is no suggestion the prisoners’ human rights were not being protected or that there may have been a breach of the human rights. No complaints of human rights breaches had been made or received in respect of the specific areas his Honour decided to inquire into, namely:


281. I reiterate that there was no factual basis which justified the appealed Judge proceeding under O.23 r.8 of the National Court Rules. In my view, the purported power of the National Court to conduct an inquiry under this Rule was wrongly invoked, and I would therefore uphold the first ground of appeal.


Advisory Committee on the Power of Mercy


282. Pursuant to s.151(1)) of the Constitution, the Governor General may exercise the power of mercy, acting with and in accordance with the advice of the National Executive Council. That advice shall follow a report from the ACPM; s.152(2). The power of mercy includes commutation of a sentence and pardon. The ACPM determines its own procedures; s.2(5) of the Organic Law on the Advisory Committee on the Power of Mercy.


283. The appellants also argued that his Honour erred in fact and law in holding that the ACPM had become defunct, thereby denying prisoners sentenced to death full protection of the law in applying for exercise of the power of mercy. It was submitted that the evidence did not support his Honour’s conclusion.


284. The relevant evidence is found in the affidavit of the Attorney General filed 27th August 2015, in which Dr Lawrence Kalinoe deposed at [13] -[14] that:


285. The process is that the ACPM considers applications for clemency or mercy from prisoners or criminal offenders, and it is those deliberations that form the basis of the report to the National Executive Council. These prisoners would of course have had to exhaust the criminal process of appeal/review.


286. From the statements of Dr Kalinoe, the appealed Judge found:


“63. There has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to comply with the duty to facilitate appointments of members of the Advisory Committee on the Power of Mercy and to provide it with staff and facilities. The Committee has become defunct. This leaves all prisoners, in particular those sentenced to death, with no effective opportunity to invoke their right to the full protection of the law by applying for exercise of the power of mercy.


  1. This has created a gap in the criminal justice system. It involves a breach of the Constitution and an infringement of human rights which must be remedied as a matter of priority.”

(My underlining)


287. With due respect, I am unable to see how his Honour could conclude from this evidence that the National Executive Council had failed its duty to appoint members of the Committee and provide it staff and facilities. On the contrary, the evidence was that the ACPM was in operation with its new members appointed, and this happened some nine months before final submissions were presented in the inquiry, and two years eight months before judgment was delivered. Significantly, the inquiry did not seek to investigate the operational status of the ACPM before delivering its decision, when 23 months had elapsed from the hearing of final submissions (10th November 2015) to the date of judgement (12th October 2017).


288. The fact that the ACPM had not been operational some years prior to 2015, did not deny the prisoners under the death sentence from applying for clemency or mercy to the Committee. If they had applied, and there was then no Committee to hear the applications, or the Committee failed to deliberate on the applications, then it could be claimed that the prisoners were denied the right to have their application determined, in breach of the constitutional right under s.37 of the Constitution (the right to full protection of the law). There was no evidence that any prisoner sentenced to death since the introduction of the death penalty in 1991, had ever applied to the ACPM for clemency or mercy. This includes six such prisoners who presented affidavit evidence to the inquiry, and whose affidavits made no reference to the ACPM.


289. To my mind, there was insufficient evidence for the appealed Judge to conclude that the State was in breach of s.37 of the Constitution, and I find that his Honour erred in fact and law in reaching that decision.


Conclusion


290. For the foregoing reasons, I allow the appeal and quash and set aside the orders of the National Court made on 12th October 2017 in proceeding HROI 2 of 2015: In the Matter of Enforcement of Basic Rights Under Section 57 of the Constitution of The Independent State of Papua New Guinea, Re Prisoners Sentenced to Death. Given that the parties are institutions of the State that were summoned to appear by the National Court, the parties shall bear their own costs.
291. MIVIRI, J: This is an appeal that lies without leave that the State and the Attorney General have instituted from the Judgement and Orders of the National Court presided by Justice Cannings of the 12th October 2017 referenced HRO 2 of 2015, Re Prisoners sentenced to Death. He initiated that pursuant to section 57 of the Constitution and Order 23 rule 8 of the National Court Rules, “the Rules”, as an inquiry into the human rights of the prisoners who were sentenced to death. To identify those sentenced to death, their rights whether these had been accorded to them. And to examine the process the role of the Committee on the Power of Mercy.


292. After which he declared that the National Government had failed, to set up through the National Executive Council the appointment of members of the Advisory Committee on the Power of Mercy, including staff and facilities provided, and steps taken to enable and facilitate the proper and convenient performance of its functions. This prompted him to issue an order to the National Executive Council that by section 225 of the Constitution by the 1st January 2018 to materialize establishment and implementation of the advisory Committee on the Power of Mercy.


293. Following from this he ordered that unless this happened, the execution of any prisoners sentenced to death, irrespective of whether his appeal and review rights have apparently been exhausted, is stayed. Effectively injuncting sentences that were the end of and by due process of law which remained to be implemented of the death sentences passed on each of the prisoners on death row.


294. The grounds of the appeal are that the National Court erred in commencing the proceedings under order 23 Rule 8 of the National Court Rules as an inquiry into alleged breach of human rights of prisoners sentenced to death, as there had been no breaches of human rights of the prisoners concerned. These will be invoked upon the Courts jurisdiction’s if there are breaches of the law against. The source of any orders decision made by the Court is after the exhaustion of due process to examine and determine that, not without.

295. Here the prisoners have each not raised complaints against in the proceedings before Justice Cannings. There is simply lack of evidence as to breaches of human rights against the prisoners. So, any orders in their favour are made without their input. It means effectively what has come out from the proceedings is more academic than practice and delivery of justice for a cause of action at law. The rights are of the prisoners they will invoke upon the Court, and it is by evidence that the Court is sanctioned justified to act as it does, not without: Pauta v. Commissioner for Corrective Institutions [1982] PNGLR 7; Pauta and Susuve v Commissioner for Corrective Institutions [1982] PGNC 9; N337 (1 April 1982). Even when it is given the powers under section 57 is in order and sustains if the evidence backs not without. So, if there is no complaint by the prisoners what it orders at the end cannot be lawful nor could it stand up, as is the case here. His honour was not justified by evidence that was led to make the decision he made in the case before him. His orders following will therefore have no basis in law backed by the evidence. In this respect the appeal is made out and sustains in favour of the appellant. It is granted as appealed accordingly.

296. A preliminary point that has not been raised by the parties is the mode of the proceedings. It is an inquiry and is not likened to a trial in that sense in criminal prosecution or a civil trial either by oral examination or by affidavits or combined. It is more like a conversation than a formal inquiry as in a leadership tribunal hearing or a commission of inquiry where the evidence is presented in orderly fashion by either side to the inquiry, first by one then the other, examination, cross examination, and re-examination all lumped at the end digested to an eventual decision. That does not appear to be the case from the examination of the transcript of the proceedings. It is therefore inconclusive in that manner and maybe viewed with apprehension. Evidence is not generated in an orderly manner and therefore would bear down on the integrity of the proceedings. At page 374 of the appeal book for example towards lines 18 to 33 is proof that there was in existence material fundamental to the way this appeal generates, there was clear evidence that the Advisory committee on the power of Mercy was in existence and operational. So the Orders that were made by the Inquiry that, “there has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to facilitate appointments of members of the Advisory Committee on the Power of Mercy and to ensure that arrangements are made and staff and facilities provided and steps taken to enable and facilitate the proper and convenient performance of its functions, the consequences being that the human rights of prisoners sentenced to death are being infringed in that they are each being denied the full protection of the law, contrary to section 37 (1) of the Constitution.” It could not come out from that proceeding in the form that it did. There was an advisory committee on the power of mercy in existence and operating, but it did not have complaints lodged with it for its consideration and action. And Public Solicitor did not see the need to take it there on behalf of the prisoners. Hence its operation and effectiveness were not that it was not operational, but that it did not have its doors knocked upon by the prisoners on death row. Its functioning upon the prisoners was dependent upon the prisoners themselves together with their lawyer or the public Solicitor, to invoke for it to function and discharge what it was called to serve Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87. There is really nothing at all in the form of evidence to justify the order against the National Executive Council. The materials in the inquiry did not warrant the order as to the National Executive Council for it to facilitate the setting up of this Committee. There is really no basis for the order prompting the National Executive Council.
297. It is therefore without legs and must suffer dismissal and the upholding of this appeal in favour of the appellant. That is the only appropriate course given the evidence and the law.


298. The inquiry by the National Court was pursuant to the Section 57 of the Constitution, which is in the following terms,

“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.”


299. There is no doubt that section 57 is applicable here and was properly applied given. There was no error it set the jurisdictional basis for the court of its own volition to inquire into the human rights of the prisoners on death row. The powers of section 57 are wide and not in derogation but adding to see out or facilitate remedies in the event of breach. And is not confined to actual breach but to cases of reasonable probability or infringement. It is therefore a very wide scope and there was no error in the way the Court used it here. This maybe where the National Court was drawing from to go the way it went. There was no actual breach in the sense that there was evidence led establishing. But it was reasonable that those on death row would seek out the advisory committee on the power of mercy in the distant foreseeability. If a non-Government organization can institute proceedings on the basis that a need is immediate for protection of the law, In the Matter of an Application under Section 57 of the Constitution; Application by Individual and Community Rights Advocacy Forum Inc (ICRAF); In re Miriam Willingal (1997) N1506, that is how wide the application of section 57 is. But even there it was justified because the evidence held the thread in place. That is not the case here in the present.

300. It is clear that it is not a free fall for the Court even if it has this wide outreaching discretion, it is accorded in conformity compliance with the law, not without, In the Matter of an Application by Benetius Gehasa (2005) N2817. The initiative is of the Court to enquire on particular defendant kept in custody for over 47 months on a charge of wilful murder without trial, but it is the Law officers of the Office of the Public Solicitor and Public Prosecutor who must assist independently that cause instituted by the Court “Suo Moto, meaning “on its own motion,” to arrive at the protection open under section 57.

301. And this is the minimum required of the Court even where the institution is from a newspaper article published in the post Courier and the National as to assaults by, “policemen who had chopped 30 men, referred to as ‘suspects’, on their Achilles tendons as they lay face down, while other Police stood guard. I have exercised the power of the National Court of Justice under Section 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution and the Human Rights Rules to protect and enforce the human rights of those who appeared to be victims of that alleged Police brutality,” Per Cannings J. Enforcement of Basic Rights, In re Section 57 Constitution of the Independent State of Papua New Guinea (2014) N5512. There he specifically addressed the procedure to carry out that in this way, the purpose of the inquiry is explained:
“A. the story as it appeared in the newspaper is set out;

  1. the Court's jurisdiction is outlined;
  1. the procedures adopted by the Court are diarised;
  1. evidence given on behalf of the Police Force is summarised;
  2. evidence given on behalf of the Public Solicitor is summarised;
  3. the seriousness and genuineness of the alleged human rights violations are assessed;
  4. an assessment is made of the adequacy of the response of the Police Force to the allegations;
  5. an assessment is made of the adequacy of the response of the Public Solicitor to the allegations and to the directions of the Court;
  6. the question of whether the inquiry should be closed, is addressed;
  7. the possibility of the Court imposing sanctions is discussed;”

302. It is therefore a procedure standing within the confines of the law which is not the case with the present case from the transcript of the proceedings. And further that there were no facts established by evidence to give rise to its exercise at first instance. It would have been different had there being evidence. So, the application of section 57 did not come into unless it was filled with the evidence upon to implore that Division 3 of the rights under the Constitution were breached. None of the prisoners on death row complained that they could not seek the discretion of the committee on the power of mercy because it was not functioning. Or because it was not set up, they were not able to access it so that the full powers in law for mercy had not been accorded them. Therefore, warranting the orders of the Court presided by Justice Cannings made on the 12th October 2017. There is no evidence that the Public Solicitor or for that matter lawyers defending vocal on the nonexistence of that committee leading to breaches of their individual client’s prisoners’ rights necessitating section 57 proceedings.


303. There is very clear definition which is also seen by the leading opinion in this regard in the Independent State of Papua New Guinea v Transferees SC1451, by his Honour Justice Gavera Nanu


“35. 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. A line of case authority reinforces this view: Constitutional Reference No. 1 of 1977 [1977] PNGLR 362. 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. At p. 373, the Court said: “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”. (my underlining).


304. I respectfully agree with his Honour there and say that is the correct approach in the law under section 57. I do not dispute as he says that the National Court can initiate on its own, for example during a visitation at a prison where the court comes across prisoner beaten and locked up by Prison warders in the maximum-security cells inhumanely, In the Matter of an Application for Enforcement of Human Rights pursuant to Section 57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218. And with the institution of the forms under the rules instituted the proceedings to see out protection given under section 57 of the Constitution, including amongst others, damages against were accorded the prisoner to see justice.


305. In my view therefore, it is fundamental that Constitutional rights are effective alive and vibrant pursued to the full letter of the Constitution 43 years on after its upbringing, but within the perimeters of the law, cannot be an obiter dictum and swept by the wayside of judicial debate. I respectfully do not concur that it is obiter dictum when the human being is the source of all else in law and must be given the full undivided wrap of the law within. It is not conducive to sweep aside a fundamental pillar in life, the protection of all humankind by the rights under Division three (3) of the Constitution loosely defining as Obiter Dictum. Because it is not and cannot be regardless, given all the examples I set out above. I am firmly off the view that the views expressed in the Transferees case (supra) by Honourable Justice Gavara-Nanu is not obiter dictum but a ratio decidendi, because it is underpinning that decision and fundamental basis for which it was proper to give that heed.

306. It is not obiter dicta when what is underpinning the observation made by Justice Gavara-Nanu is the way we set out about our system of advocacy, the adversarial as opposed to the inquisitorial, curtailing the various setting out of the Constitutional Roles defined played out by the Courts, the law offices and Officers corresponding to an adversarial advocacy rather than inquisitorial. There is clear demarcation of the roles leading up to the eventual orders which are at the discretion of the Court. The initiation maybe by the Court but to protect its independence and integrity, it is either by Staff who are under the Registrar, or the Sheriff to bring to light the Courts initiation. And that it is sanctioned by the play of evidence to anchor. Because it is not purely an inquisitorial process entirely. It must conform to the adversarial therefore what culminates as that result and what orders the court grants is at the initiative of the Court by its judicial discretion. But it should not be an overstep to become Judge, Prosecutor, defender, all in one.

307. There ought to be objectivity that indeed Justice is done and seen to be done, Boateng v. The State [1990] PNGLR 342. Aligned in this regard the contention of the appellant of the overstep is indeed a cause for concern by the discussions set out above and would lawfully compel the allowance of this appeal. Because it was not the case that there was breach immediate and occurring for immediate attention and action. Even if it were so there was a cause for concern to descend into the dust of the arena which would cloud the eyes of the Court to see.

308. In this regard the guide or guardian to the implementation of Section 57 by the Court is through adherence and compliance with Order 23 Rule 8 of the National Court Rules. That Rule of the National Court Human Rights Rules is in the following terms:

“Commencement of Proceedings by the Court.

(1) Where a Judge observes or is informed by the Registrar or the Sheriff or one of their officers, of facts which may constitute a breach of the basic rights the Court may commence proceedings on its own initiative.
(2) Where the National Court commences proceedings on its own initiative in accordance with section 57 of the Constitution-
(3) Nothing in these Rules derogates from the power and duty of the National Court under section 57 (1) of the Constitution to, on its own initiative, enforce the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution in an informal or such other manner as the Court thinks fit. Especially in urgent cases where it is not practical to comply with the formal requirements for commencement of proceedings.
(4) Where the Court exercises a power under sub-rule (2) a Court shall ensure, that as soon as the circumstances permit, not being later than seven days after the exercise of such power, a reference in form 126 is filed and thereafter served on the respondents.”

309. It means in effect that the Judge must have observed or is informed either by the Registrar or Sheriff, or one of the officers within of facts that give rise to breach or breaches of basic rights. There is no evidence that this is and was the case here. That it is upon observation by the Judge during a visit to the Prison culminating in the inquiry, or that there is either a report by the Registrar, or Sheriff, in respect. Or for the same a complaint made to an officer of the Sheriff or Registrar from a prison staff. Or filling out a human rights form as in Waso; In the Matter of an Application for Enforcement of Human Rights pursuant to Section 57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218.

310. The rule does not defeat the application of section 57 what it does is to fundamentally provide integrity in the process so that there is independent correlation of material in respect of the allegation of breach. Because it is clear that in urgent cases it may “in an informal or such other manner as the Court thinks fit. Especially in urgent cases where it is not practical to comply with the formal requirements for commencement of proceedings.” This is clearly evidence of intent to accommodate account of cases where immediate intervention is necessary of right and must give the circumstances be attended to per se In re Miriam Willingal (supra), accorded because to wait out for the full process by the rules will see injustice, because human rights will be abused. This is not the same as by passing or doing away with the rules of court and our system of advocacy, the adversarial for the inquisitorial. Justice is objectively not reacting per se Boateng (supra). Order 23 and Rule 8 of the NCR is the tool to use to secure section 57. It is not unconstitutional in that respects and its application to the present case is not restraint. In this regard I am not convinced that it was unconstitutional as observed in the transferee’s case by Justice Gavara-Nanu. I qualify and say each case is accorded what its own facts demarcate not without. What was observed in that case is not necessarily the norm for all. In this regard I beg to differ from his Honour with the greatest respect.


311. The application of Order 23 Rule 8 by the National court in continuing and persisting on with the proceedings is not unconstitutional by the views expressed by his Honour Justice Gavara-Nanu transferee’s case, which declared Order 23 Rule 8 unconstitutional and invalidated the said Rule. That was not the issue before that Court. It was therefore no primary and any decision with respect pertaining is not holding out against the present. The effect of Order 23 Rule 8 is setting the stage for what the Court does to execute Section 57, it is not Unconstitutional and therefore does not hinder its application even here.


312. He ordered that the National Executive Council shall, in compliance with section 1 of the Organic Law on the Advisory Committee on the Power of Mercy and section 225 of the Constitution, by the 1st January 2018, facilitate appointments of members of the Advisory Committee on the Power of Mercy, and ensure that all arrangements are made, staff and facilities are provided and steps are taken to enable and facilitate, as far as may reasonably be proper and convenient performance of its functions. That is by operation of section 1 (2) of that Organic Law where upon the advice of the National Executive Council the head of State appoints the Advisory Committee on the power of Mercy. And the Composition is geared to give effect to that name. It comprises a Lawyer, medical practitioner experienced in psychiatry, a member of the National Parliament, a Minister of Religion, and a person with experience in community work.

313. From the materials in the proceedings filed Dr. Lawrence Kalinoe swore an affidavit on the 27th August 2015 that was before the hearing there. It shows that there was Advisory Committee on the power of Mercy comprising Michael Henao a Lawyer, a medical practitioner with psychiatry Dr. Umadevi Ambihalphar, a member of Parliament honourable Salio Waipo, a Minister of Religion Reverend Giefere Wenge, a person with experience in community work Pastor Charles Lapa. And this is contrary to the orders that emanated because on the record of the decision at first instance it is not clear by what evidence it become apparent for the Court to make the order for the National Executive Council to set up the Committee on the Power of Mercy. Given this observation what led to the orders had no basis and should not have been the case. The effect is that the orders made 12th October 2017 have no basis to sustain and must be quashed given. Accordingly, the order made ordering the National Executive Council to set up an Advisory Committee on the Power of Mercy is set aside and quashed.

314. What follows as a natural consequence is that the orders staying all executions of death pending setting up of the Advisory Committee on the power of Mercy is unlawful. It is Unconstitutional because these are orders of the National Court at first instance, unchallenged and therefore confirmed after expiration of the appeal period and review inclusive. Some of whom have been the subject of decisions on appeal confirmed as death sentences, Erebebe v State (2013) SC1228. In my view the decision staying all executions of death of all prisoners on death row cannot stand and must be set aside forthwith as Unconstitutional and void ab initio. The aggregate is that the appeal on this ground is upheld in favour of the appellant. It means in effect all prisoners on death row revert to their sentences of death effective forthwith.

315. The summary is that the appeal is allowed in that the National Court erred in commencing the proceedings under order 23 Rule 8 of the National Court Rules as an inquiry into alleged breach of human rights of prisoners sentenced to death, as there had been no breaches of human rights of the prisoners concerned.

316. Further the appeal is allowed:

(a) That the order of the National Court ordering the National Executive Council to set up the Advisory Committee on the Power of Mercy is set aside as Unlawful void ab initio.

(b) That the Order Staying all sentences of death is Unconstitutional and Unlawful and accordingly is set aside forthwith. All prisoners subject revert back to their sentences of death to be executed.

(c) Each party to bear their costs.

Orders Accordingly.
The Courts Decision on the Appeal


317. The Court has decided by the majority to uphold the appeal against the finding of breaches of the prisoners’ constitutional rights. Also, on the ground concerning jurisdiction, by the majority decided to dismiss the appeal. It follows that the appeal is upheld in part.


318. On the question of costs, the Court has decided to order each party to bear their own costs as this was an “inquiry” by the National Court on its own initiative.


Formal Orders


319. The formal orders of the Court are:


1. The appeal is upheld in part.


  1. The ground of appeal in relation to the National Court having lacked jurisdiction to commence proceeding on its own initiative under Section 57(1) of the Constitution is dismissed.
  2. The ground of appeal in relation to the findings that there had been a failure over an extended period on the part of the appellants the NEC to facilitate appointments of members of the Advisory Committee and ensure it is operational and such failure constituted a breach of the prisoners’ rights to full protect of the law under Section 37(1) of the Constitution is upheld.
  3. The order of the National Court directing the appellants to facilitate the appointments of the members of the Advisory Committee on the Power of Mercy and provide a Report to the National Executive Council given on 12th October 2017 in proceeding described as HROI No 2 of 2015: Re Human Rights of Prisoners Sentenced to Death is quashed forthwith.
  4. The order of the National Court in relation to temporary stay of the death sentences of prisoners sentenced to death given on 12th October 2017 in proceeding described as HROI No 2 of 2015: Re Human Rights of Prisoners Sentenced to Death is quashed forthwith.
  5. Each party shall bear their own costs of the appeal.
  6. Time for the entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.

________________________________________________________________
Solicitor General: Lawyers for Appellants
Public Solicitor: Lawyers for First Respondent
Public Prosecutor: Lawyers for Second Respondent
NJSS Legal Counsel: Lawyers for Fourth Respondent

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