In The Matter of Enforcement of Basic Rights under The Constitution of The Independent State of Papua New Guinea, Section 57 On the Own Initiative of the National Court Re Release of Prisoners on Licence (2008) N3421

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 July 2008
• Citation: (2008) N3421
• Docket Number: MP NO 176 0F 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3421

Full Title: MP NO 176 0F 2007; In The Matter of Enforcement of Basic Rights under The Constitution of The Independent State of Papua New Guinea, Section 57 On the Own Initiative of the National Court Re Release of Prisoners on Licence (2008) N3421

National Court: Cannings J

Judgment Delivered: 31 July 2008

N3421

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 176 0F 2007

IN THE MATTER OF ENFORCEMENT

OF BASIC RIGHTS UNDER THE CONSTITUTION

OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,

SECTION 57

ON THE OWN INITIATIVE OF THE NATIONAL COURT

RE RELEASE OF PRISONERS ON LICENCE

Kimbe/Waigani: Cannings J

2007: 10 August

2008: 31 July

BASIC RIGHTS – right to full protection of the law, Constitution, Section 37(1) – right to be protected against unwarranted acts etc, Constitution, Section 41(2) – right of equality, Constitution, Section 55.

BASIC RIGHTS – enforcement – duty of National Court to protect and enforce human rights.

CRIMINAL LAW – sentencing – laws under which prisoners can be released from custody.

CRIMINAL LAW – sentencing – release of prisoners on licence, Criminal Code, Section 615 – mass release of prisoners – whether arbitrary manner of selection of prisoners for release contrary to Basic Rights of prisoners not selected for release on licence.

The Minister for Justice authorised the release of 191 prisoners from a number of jails in the country. The Minister used his powers under Section 615 (release of prisoners on licence) of the Criminal Code to grant a “licence to be at large” to each of the prisoners. A Judge expressed concern that the prisoners were released in a way that was not transparent and may tend to undermine the authority of the courts in the National Judicial System. The Judge exercised the powers of the National Court, on its own initiative, to inquire into the matter and determine whether the Basic Rights of prisoners not selected to be released on licence were breached. A court hearing was conducted, leave was granted for various parties to intervene in the proceedings, evidence was admitted, submissions made and consideration given to whether any rights or freedoms referred to in Division III.3 (basic rights) of the Constitution were breached and whether orders for enforcement of those rights and freedoms should be made.

Held:

(1) There were numerous problems with the mass release on licence exercise in May 2007, in that: no statutory procedures were followed; no criteria were in place; no reasons were given for releasing some prisoners and not others; decisions were made by one person only, the Minister for Justice; the process was not transparent; little or no publicity was given to the exercise; the Parole Board was by-passed; the Advisory Committee on the Power of Mercy was by-passed; little or no consultation took place with the community or victims; no consultation took place with the Judiciary; no regard was had to pending appeals; it undermined the authority of the courts; and it interfered with the independence of the Judiciary.

(2) The effect of such an arbitrary process was that at least two Basic Rights of the remaining prison population (those not released on licence) were breached: the right to the full protection of the law (Constitution, Section 37(1) and the right of equality (Section 55)).

(3) The manner in which the mass release on licence exercise was carried out failed to meet the requirements of Section 41(1) (proscribed acts) of the Constitution, in that it was not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

(4) It was therefore necessary and appropriate for the purposes of enforcement of the Basic Rights and proper for remedying the breach of the prohibition of Section 41(1) of the Constitution, to make orders under Sections 23(2) and 57(3) of the Constitution, that are intended to ensure that the system of releasing prisoners on licence becomes open, transparent, rigorous, systematic and fair, so that all prisoners get the full protection of the law and are treated equally.

(5) Orders were accordingly made requiring the Minister for Justice to: inform all prisoners in all jails throughout the country of the release on licence process and give all prisoners an equal opportunity to participate in the exercise; and to determine and promulgate procedures and criteria for any future release on licence exercise.

Cases cited:

Acting Public Prosecutor v Don Hale (1998) SC564

Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212

Application by Benetius Gehasa (2005) N2817

Daniel Ronald Walus v The State (2007) SC882

Edmund Gima & Siune Arnold v The State (2003) SC730

Emil Kongian and Others v The State, SCRA No 92 of 2003, 03.09.07

Ignatius Pomaloh v The State (2006) SC834

In the matter of a Human Rights Application pursuant to Sections 57 and 37 of the Constitution; Danny Pirino v The State (2006) N3111

In the matter of an Application by Paul Tupuru (2005) N2976

In the matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819

In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969

In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022

In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06

In the matter of Four Remandees Allegedly of Unsound Mind of Boram Correctional Institution East Sepik Province: Clement Talis, Paulias Mathias, Roy Maru and Samson Yauling, MP No 621 of 2006, 30.06.06

Joe Giamur v The State, SCRA No 9 of 2006, 23.02.06

John Alex v Martin Golu [1983] PNGLR 117

John Baipu v The State (2005) SC796

Petrus and Gawi v Telikom PNG Ltd, OS No 728 of 2006, 30.05.08

Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448

Re Conditions of Detention at Buimo Correctional Institution [1988-89] PNGLR 266

Re Conditions of Detention at Buka Police Lock-Up and the Need to Secure Funding For, Build and Equip a Proper Correctional Institution for the Autonomous Region Of Bougainville MP No 726 of 2006, 06.10.06

Re Conditions of Detention at Buka Police Lock-up, Autonomous Region of Bougainville MP No 726 of 2006, 25.08.06

Re Conditions of Detention at Lakiemata Correctional Institution, West New Britain MP No 813 of 2006, 09.10.06

SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329

The State v Bafe Quati and Others [1990] PNGLR 57

The State v Enni Mathew and Others (2003) N2563

The State v John Baipu (2003) N2451

The State v Rodney Gela and Clarence Logi, CR Nos 1300 and 1301 of 2005, 27.10.05

The State v Tanedo [1975] PNGLR 395

The State v Thomas Waim [1995] PNGLR 187

Thomas Waim v The State (1997) SC519

Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87

ENFORCEMENT OF BASIC RIGHTS

This is a judgment in which the National Court gives its reasons for making orders for enforcement of Basic Rights.

Counsel

O Oiveka, for the 1st intervener

W Piandi, for the 2nd intervener

F Popeu, for the State

31 July, 2008

1. CANNINGS J: In May 2007 the then Minister for Justice, the Honourable Bire Kimisopa MP, authorised the release of 191 prisoners from jails in Papua New Guinea, including 28 prisoners from Lakiemata Jail, West New Britain. The Minister used his powers under Section 615 (release of prisoners on licence) of the Criminal Code to grant a “licence to be at large” to each of the prisoners.

2. Upon hearing about this, I expressed some surprise and concern, as resident Judge for West New Britain, as the mass release of prisoners was apparently done in a way that was not transparent. Little or no publicity accompanied their release. There appeared to have been little or no consultation with the community, especially the victims of the crimes for which the prisoners had been sentenced. I was concerned that releasing prisoners extra-judicially may tend to undermine the authority of the courts in the National Judicial System. I decided to exercise the powers of the National Court, under Section 57 of the Constitution, to inquire into the matter and determine whether the Basic Rights of prisoners not selected to be released on licence were breached.

3. I ordered the Commissioner of the Correctional Service, Richard Sikani, to file a list of all prisoners released on licence in 2007 and I ordered the Commander of Lakiemata Jail, Marcus Mandau, to provide all documents relating to the release of the Lakiemata prisoners. I granted leave to the Commissioner and the Public Solicitor to intervene in the proceedings. The Public Solicitor represented those prisoners, particularly at Lakiemata Jail, who were not selected for early release.

4. I conducted a hearing of the National Court at Kimbe. The Commissioner and the Public Solicitor were represented by Mr Piandi and Mr Oiveka respectively. Mr Popeu of the office of the Public Prosecutor also appeared, to represent the State. As Mr Kimisopa was no longer the Minister for Justice at the time of the hearing I regarded Mr Popeu as providing sufficient representation for the office of the Minister for Justice. Affidavits by Mr Sikani...