Re Alleged Brutal Treatment of Suspects

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 February 2014
• Citation: (2014) N5512
• Court: National Court
• Year: 2014
• Judgement Number: N5512

Full : HROI NO 2 OF 2013; In the matter of Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, Section 57; Re Alleged Brutal Treatment of Suspects reported in the National Newspaper, 28.05.13, PAGE 4 (2014) N5512

National Court: Cannings J

Judgment Delivered: 26 February 2014

N5512

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HROI NO 2 OF 2013

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER THE CONSTITUTION OF

THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

RE ALLEGED BRUTAL TREATMENT OF SUSPECTS

REPORTED IN THE NATIONAL NEWSPAPER, 28.05.13, PAGE 4

Waigani: Cannings J

2013: 29 May, 5, 25, 26 June, 30, 31 July,

28 August, 17 September, 1 November,

2014: 26 February

HUMAN RIGHTS – Constitution, Section 57 (enforcement of guaranteed rights and freedoms) – power and duty of National Court to inquire into and protect and enforce guaranteed rights and freedoms – power and duty of Police to enforce the law in an impartial and objective manner – power and duty of Public Solicitor to advance legal aid, advice and assistance to those whose guaranteed rights and freedoms have been violated.

The National Court inquired into alleged human rights violations following a newspaper report of a large group of men being unlawfully and brutally wounded by members of the Police Force. The Court invoked the power in Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution to protect and enforce the human rights of those who appeared to be victims of Police brutality. This was done by inquiring into the allegations, directing the Public Solicitor to provide legal aid, advice and assistance to the victims and ordering members of the Police Force to provide the Court with evidence of how it was dealing with the allegations, in terms of charging those allegedly involved under the Criminal Code and under the disciplinary code of the Police Act 1998. The Court announced soon after commencement of its inquiry that the purpose was not to determine which members of the Police Force, if any, were guilty of criminal or disciplinary offences or who, if anyone, including the State, was liable to pay compensation or to whom, if anyone, it should be paid. Rather, the purposes were: (a) to make findings as to the details of the allegations and determine how serious and genuine they were; (b) to assess the adequacy of the response of the Police Force to the allegations; (c) assess the adequacy of the response of the Public Solicitor to the allegations; and (d) to make declarations and orders that will enforce the human rights of those who have had their rights violated and ensure that justice is done to the victims of human rights violations and to those members of the Police Force who have been implicated in this inquiry.

Held:

(1) On Sunday 26 May 2013 at Seven Mile, National Capital District, it appears that some members of the Police Force engaged in a callous, savage and unnecessary attack on a group of 74 men who the Police suspected of involvement in a civil unrest. The victims were allegedly forced to lie face-down on the ground while they were assaulted by the Police, some of them being slashed with bushknives on their legs and ankles. In the course of the Police response to the incident, there appears to have been a breakdown in command, control and discipline, with some members of the Police Force ignoring orders from and rebelling against more senior officers.

(2) The Police Force response to the incident, despite the commencement of this inquiry and repeated urging by the Court to do more and act with haste and despite evidence of the seriousness of the allegations of Police brutality, has been woefully inadequate, in that: only two members of the Police Force have faced charges under the Criminal Code, the Court was not fully informed of the progress of the criminal matters, there is no evidence of any disciplinary action being taken and the excuses given for not taking more decisive action are poor, demonstrating a lack of professionalism and commitment to the professed task of dealing firmly with members of the Force who are alleged to have been guilty of Police brutality.

(3) The Public Solicitor’s response to the directions of the Court, though much better than that of the Police Force, has been too slow, and reactive rather than proactive, demonstrating a failure to appreciate the significance of the matter and his constitutional duty as a Law Officer to protect and enforce the guaranteed rights and freedoms.

(4) The Court made the following declarations and orders:

(a) extremely serious and genuine allegations of human rights violations exist against members of the Police Force in regard to the incident that took place near Jackson’s Airport, Seven Mile, National Capital District, on Sunday 26 May 2013;

(b) there are seven members of the Police Force implicated in the alleged human rights violations and alleged criminal and disciplinary offences committed;

(c) the steps taken by the Police Force in response to the allegations and the Court’s inquiry have been woefully inadequate;

(d) the steps so far taken by the Public Solicitor in response to the allegations and the Court’s inquiry have been barely adequate, too slow and reactive rather than proactive;

(e) the inquiry will continue and the Commissioner of Police, the Public Solicitor and the Metropolitan Commander of the National Capital District are summoned to personally appear before the Court at its next hearing to further address unresolved issues arising out of the inquiry.

Cases cited

The following cases are cited in the judgment:

Nail Lamon v Snr Const Zakang Bumai (2008) N3468

Namah v Pato (2014) SC1304

Re Release of Prisoners on Licence (2008) N3421

Abbreviations

The following abbreviations appear in the judgment:

aka – also-known-as

CJ – Chief Justice

Const – Constable

CPC – Constitutional Planning Committee

HROI – human rights own initiative case by the National Court

Insp – Inspector

J – Justice

N – National Court judgment

NCD – National Capital District

PNGLR – Papua New Guinea Law Reports

s – section

SC – Supreme Court judgment

Sgt – Sergeant

Snr – Snr

Supt – Superintendent

v – versus

Dates

In this judgment, dates refer to the year 2013 unless otherwise indicated.

INQUIRY

This was an inquiry by the National Court under Section 57 of the Constitution into a widely publicised incident involving serious allegations of human rights violations against members of the Police Force.

Counsel

E Wurr & V Amoko, for “the suspects” and the Public Solicitor

N Miviri, for the Police

26th February, 2014

1. CANNINGS J: A disturbing story about Police brutality appeared in The National newspaper on Tuesday 28 May 2013. It was reported that on the previous Sunday in Port Moresby two policemen 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.

2. I have done this by conducting an inquiry into the allegations, directing the Public Solicitor to provide legal aid, advice and assistance to the “suspects” – who as the inquiry progressed, came to be regarded as “victims” – and ordering members of the Police Force to provide the Court with evidence of how it was dealing with the allegations, in terms of charging those allegedly involved under the Criminal Code and under the disciplinary code of the Police Act 1998. This judgment is a report on the Court’s inquiry. It is set out as follows:

A the purpose of the inquiry is explained;

B the story as it appeared in the newspaper is set out;

C the Court’s jurisdiction is outlined;

D the procedures adopted by the Court are diarised;

E evidence given on behalf of the Police Force is summarised;

F evidence given on behalf of the Public Solicitor is summarised;

G the seriousness and genuineness of the alleged human rights violations are assessed;

H an assessment is made of the adequacy of the response of the Police Force to the allegations;

I an assessment is made of the adequacy of the response of the Public Solicitor to the allegations and to the directions of the Court;

J the question of whether the inquiry should be closed, is addressed;

K the possibility of the Court imposing sanctions is discussed;

L orders and declarations are made.

A PURPOSE OF INQUIRY

3. This has not been a conventional court case conducted in an adversarial setting in which two sides are pitted against each...