Kathrine Mal v Commander, Beon Correctional Institution

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 08 May 2017
• Citation: (2017) N6710
• Court: National Court
• Year: 2017
• Judgement Number: N6710

Full : HRA No 264 of 2016; In the matter of an Application for Enforcement of Human Rights; Kathrine Mal v Commander, Beon Correctional Institution and the Independent State of Papua New Guinea (2017) N6710

National Court: Cannings J

Judgment Delivered: 8 May 2017

-N6710

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 264 OF 2016

IN THE MATTER OF AN APPLICATION FOR

ENFORCEMENT OF HUMAN RIGHTS

KATHRINE MAL

Applicant

V

COMMANDER, BEON CORRECTIONAL INSTITUTION

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Madang: Cannings J

2017: 25 March, 4 & 5 April, 8 May

HUMAN RIGHTS – application for enforcement – application by prisoner for early release on humanitarian and medical grounds –whether notice requirements of Claims By and Against the State Act apply to such applications – whether applicant obliged to exhaust administrative remedies before making application.

The applicant, a prisoner, applied for early release from custody on humanitarian grounds. She had chronic diabetes and hypertension and recently had a stroke and had severe mobility problems. She applied under Section 57 of the Constitution for enforcement of her human rights. The respondents, the Jail Commander and the State, opposed the application on various grounds: that the applicant failed to give notice under Section 5 of the Claims By and Against the State Act and failed to exhaust other avenues by which she might be released from custody before making the application, that there was insufficient evidence of a breach of human rights, that if a breach of human rights were proven the preferable remedy was damages, not release from custody due to the adverse public perception that would be created by granting a prisoner convicted of a serious offence being granted early release.

Held:

(1) The applicant was not making a “claim” against the State for the purposes of the Claims By and Against the State Act. It was unnecessary to give notice under Section 5 of that Act of the intention to make a claim against the State.

(2) A prisoner is under no obligation to exhaust administrative remedies such as applying for parole, release on licence or a pardon, before making an application for early release as an enforcement of human rights.

(3) A prisoner must not be submitted to torture (whether physical or mental) or to treatment or punishment that is cruel or otherwise inhuman or is inconsistent with respect for the inherent dignity of the human person (Constitution, Section 36) and must be treated with humanity and with respect for the inherent dignity of the human person (Constitution, Section 37(17)).

(4) The applicant’s health was so poor and her mobility so impaired that to require her continued detention in a prison without the necessary facilities to manage and treat her ailments would be to submit her to inhuman treatment and amount to an infringement of her right as a detainee to be treated with humanity and with respect for the inherent dignity of the human person.

(5) A prisoner who establishes a breach of human rights is not restricted to obtaining an award of damages. The Court has power under Sections 57(1) and (3) of the Constitution to grant an appropriate remedy for enforcement of human rights, including ordering early release.

(6) In exercising the Court’s discretion as to whether to order early release, relevant considerations include: the nature and extent of the prisoner’s medical condition, the length of time the prisoner has spent in custody, the proportion of the sentence served, whether the prisoner is eligible for parole, the nature and circumstances of the offence, whether the prisoner’s release poses any threat to public safety, the attitude of the victim and/or the victim’s relatives and public perception.

(7) Order for early release granted.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817

Application by Jerry Kui (2014) N5734

Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651

Re Release of Prisoners on Licence (2008) N3421

The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2011) N4457

The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591

APPLICATION

This was an application by a prisoner for early release from custody, prosecuted as an application for enforcement of human rights.

Counsel:

A Meten, for the Applicant

B B Wak, for the Respondents

8th May, 2017

1. CANNINGS J: The applicant, Kathrine Mal, is a prisoner at Beon Jail serving a 17-year sentence for wilful murder. She applies for early release from custody on humanitarian grounds. She suffers from chronic diabetes and hypertension and recently had a stroke. Her application is made by way of an application under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution for enforcement of human rights, in particular:

· the right to freedom from inhuman treatment under Constitution, Section 36(1),

· the right to the full protection of the law under Constitution, Section 37(1), and

· the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37(17).

2. The respondents, the Jail Commander and the State, oppose the application on various grounds: that the applicant failed to give notice under Section 5 of the Claims By and Against the State Act and failed to exhaust other avenues by which she might be released from custody before making this application, that there is insufficient evidence of a breach of human rights and that if a breach of human rights is proven the preferable remedy is damages, not release from custody due to the adverse public perception that would be created by granting a prisoner convicted of such a serious offence early release.

3. The following issues arise:

1. Should the application be refused because of a failure to comply with Section 5 of the Claims By and Against the State Act?

2. Should the application be refused because of the applicant’s failure to exhaust administrative remedies?

3. What are the facts?

4. Does the applicant’s imprisonment entail any breach of human rights?

5. What orders should the Court make?

1 SHOULD THE APPLICATION BE REFUSED BECAUSE OF A FAILURE TO COMPLY WITH SECTION 5 OF THE CLAIMS BY AND AGAINST THE STATE ACT?

4. Mr Wak, for the respondents, submitted that the application should be refused as the applicant had not given notice of her intention to make the claim for early release before filing the application, as required by Section 5 (notice of claims against the State) of the Claims By and Against the State Act. Section 5 provides that “no action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section … within a period of six months after the occurrence out of which the claim arose”. Mr Wak pointed out that under Section 2 (suits against the State) of the Act, its provisions “apply to applications for the enforcement against the State of a right or freedom under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution”.

Mrs Meten, for the applicant, agreed that no Section 5 notice was given but argued that it was not necessary as the present application does not involve any claim for damages or compensation or any other similar remedy; it is simply an application for early release from custody.

5. I uphold Mrs Meten’s submission that because the applicant is not claiming damages or compensation or other similar relief, it was unnecessary to give notice under Section 5 of the intention to make the application. The term “claim” in Section 5 refers to a monetary claim or a claim for an order such as an injunction that would involve direct cost or prejudice to the State. Although Section 2(2) clarifies that the Act applies to applications under Section 57 of the Constitution for enforcement of human rights (and the present application is such an application) that does not alter the meaning and effect of the word “claim” in Section 5. It refers to monetary or other similar claims. None is made in this case. The applicant did not have to give a Section 5 notice. Her application will not be refused because of the alleged failure to comply with the Act. There was no failure to comply.

2 SHOULD THE APPLICATION BE REFUSED BECAUSE OF THE APPLICANT’S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES?

6. Mr Wak submits that there are other administrative means by which the applicant could apply for early release. She could for example apply for parole or a release on licence or a pardon. She should be required to exhaust those administrative avenues before approaching the Court, Mr Wak submitted.

7. It is correct that there are administrative procedures that could have been explored by the applicant. I explained the laws and procedures that could be invoked to effect early release of a prisoner in my inquiry into the May 2007 mass release on licence exercise, detailed...