N7917
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 233 OF 2018

IN THE MATTER OF AN APPLICATION FOR 
ENFORCEMENT OF HUMAN RIGHTS 

SIMON LILIURA 
Applicant 

V 

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent  

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Kimbe: 18, 19 March, 26 June 2019
Waigani: 5 July 2019

Cannings J

HUMAN RIGHTS – application by prisoner for early release from custody on human rights grounds –  whether Court has jurisdiction to order early release – whether human rights breached – appropriate remedies. 

The applicant, a prisoner, applied for early release from custody on the ground that his human rights were breached by the Jail Commander’s continuing failure to comply with court orders that he be placed on a special diet due to his medical condition, thereby putting his life at risk. The respondents opposed the application, arguing that the National Court had no power to grant early release, and that there was no breach of human rights as the Jail Commander had substantially complied with previous orders and that even if the Court had jurisdiction and a breach of human rights were proven, the Court should still decline to grant early release. 

Held:

(1)	The National Court has jurisdiction under ss 57(1) and (3) of the Constitution to order early release of a prisoner as an enforcement of human rights if a breach of human rights is proven and the Court considers that it is necessary or appropriate to so order. 

(2)	The Jail Commander failed over a period of more than three years to comply with court orders requiring that the applicant be placed on a special diet. However, there was no evidence that this put the applicant in a life-threatening position. The failure to comply with the Court’s orders meant that the applicant was denied the full protection of the law, amounting to a breach of human rights under s 37(1) of the Constitution, but there was no evidence of inhuman treatment (for the purposes of Constitution, s 36(1)) or denial of the right to be treated with humanity (for the purposes of Constitution, s 37(17)). 

(3)	In exercising the Court’s discretion 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 public perception.  

(4)	Application for early release refused.

Cases Cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Application by Jerry Kui (2014) N5734
Application by Kathrine Mal (2017) N6710
Application by Reuben Micah (2013) N5427
Applications For Early Release from Custody by John Carl Endekra and 14 other Prisoners of Lakiemata Correctional Institution (2009) N3838
Bobby Selan v The State (2012) N4938
Daniel Ronald Walus v The State (2007) SC882
Dr Theo Yasause v Kiddy Keko (2017) N6853
Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651
Heni Elly v Commissioner of the Correctional Service (2018) N7629
Re Release of Prisoners on Licence (2008) N3421
The State v Simon Liliura (2014) N5785

APPLICATION

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

S Liliura, the applicant, in person 
G Akia, for the Respondents

5th July, 2019 

1.      CANNINGS J: The applicant, Simon Liliura, is a prisoner at Lakiemata Jail, West New Britain, serving a 15-year sentence for armed robbery and unlawful deprivation of liberty. He applies for early release from custody on the ground that his human rights have been breached by the Jail Commander’s continuing failure to comply with court orders that he be placed on a special diet due to his medical condition, thereby putting his life at risk. The respondents oppose the application, arguing that the National Court has no power to grant early release, and that there was no breach of human rights as the Jail Commander had substantially complied with the orders, and that even if the Court had jurisdiction and a breach of human rights were proven, the Court should still decline to grant early release. 

2.     The application is made 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).

3.     Section 36(1) (freedom from inhuman treatment) states:

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

4.     Section 37(1) (protection of the law) states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

5.     Section 37(17) (protection of the law) states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

6.     The following issues arise:

1.	Does the National Court have power to order early release?

2.	Has a breach of human rights been proven?

3.	What orders should the Court make? 

1	DOES THE NATIONAL COURT HAVE POWER TO ORDER EARLY RELEASE?

7.     Mr Akia, for the respondents, submitted that the Court has no jurisdiction because once it has sentenced a prisoner it has no further power to exercise. He submitted that the National Court is constrained by existing laws that confer on specialist bodies, in particular the Parole Board, the power to grant early release to prisoners. He relies on the decision of the Supreme Court in Daniel Ronald Walus v The State (2007) SC882 that the National Court, having sentenced an offender, is functus officio (its duties are discharged). Mr Akia submitted that I am bound by the Supreme Court’s edict in Walus. He points out that I acknowledged being so bound in Applications For Early Release from Custody by John Carl Endekra and 14 other Prisoners of Lakiemata Correctional Institution (2009) N3838, where I stated (repeating similar remarks in Re Release of Prisoners on Licence (2008) N3421): 

The critical point that all prisoners must understand is that the National Court has no general power to order early release of any prisoner. The Court can only order early release if the order under which the prisoner was sentenced expressly allows for it. 

8.     I dealt with the same submission that Mr Akia makes in this case, in Heni Elly v Commissioner of the Correctional Service (2018) N7629. I acknowledged that the National Court has the power under Section 58(2) of the Constitution to award damages to a prisoner who succeeds in establishing a breach of human rights (such as in Bobby Selan v The State (2012) N4938 and Application by Reuben Micah (2013) N5427). However, the availability of the remedy of damages does not mean that the Court cannot order early release. Nothing said by the Supreme Court in Walus had anything to do with human rights. Walus was all about the criminal jurisdiction of the National Court: the power of the sentencing judge to revisit a sentence and decide whether part of a prisoner’s sentence should be suspended after serving a minimum period in custody. The Supreme Court said the sentencing Judge does not have that power, as that would amount to usurping the powers of the Parole Board. Walus did not address the power of the National Court under its human rights jurisdiction conferred by Section 57(3) of the Constitution to “make all such orders and declarations as are necessary or appropriate” in the case of a prisoner whose rights or freedoms have been infringed. 

9.    Nothing in Mr Akia’s submission in the present case is new. I have considered the submission before, and rejected it. I reject it again. 

10.     The National Court has power in an appropriate case, if it is established that a breach of human rights has occurred, to order early release of a prisoner. I exercised that power in Application by Jerry Kui (2014) N5737 and Application by Kathrine Mal (2017) N6710. I note that the State has appealed against my decision in Mal, which was to grant early release to a prisoner who was seriously ill and could not obtain proper medical treatment in custody. However, the appeal has not been heard yet. 

11.      I reiterate that it is the infringement of guaranteed rights and freedoms that enlivens the jurisdiction of the Court under Sections 57(1) and (3) of the Constitution to grant early release. 

12.     When the Constitution grants power directly to the National Court, there can be no greater source of power. It becomes pointless to talk in terms of usurping powers of inferior tribunals or to trumpet the functus fallacy. No law or practice or convention or hoary old Latin maxim can take from the National Court a power that is so significantly and directly conferred on it by the Constitution.     

13.     The National Court has jurisdiction under ss 57(1) and (3) of the Constitution to order early release of a prisoner as an enforcement of human rights if a breach of human rights is proven and the Court considers that it is necessary or appropriate to so order. 

2	HAS A BREACH OF HUMAN RIGHTS BEEN PROVEN IN THIS CASE?

14.     The applicant argues that his human rights have been breached in two ways. Frist, he says that the Jail Commander at Lakiemata Correctional Institution has failed over a period of more than three years to comply with court orders requiring that he be placed on a special diet. Secondly, he says that the failure to provide a special diet, together with the ongoing effects of bullet wounds he incurred at the hands of the Police in the course of his apprehension, have put him in a life-threatening situation.

Alleged failure to comply with Court orders

15.     I have ordered the Jail Commander to provide a special diet to the applicant on two occasions. On 23 May 2015 in HRA No 66 of 2015, I ordered:

The Jail Commander Lakiemata shall ensure that the applicant is treated as a prisoner with special medical and dietary needs and is given priority for medical treatment at Kimbe General Hospital and when required. 
 
16.     On 28 July 2017 in HRA No 342 of 2016, I ordered:

The Jail Commander is formally warned that he must within seven days provide a special diet for the applicant in accordance with the order of 23 May 2015 and if he fails to adhere to this warning he will without further notice be charged with contempt of Court. 
 
17.     The Jail Commander, Superintendent John Koilamus, admits in his affidavit adduced in evidence that he has not complied with the Court’s orders. He states that “the diet is not continuous but is on the basis when rations and extra funds are available” and that greens and vegetables and kaukau and cassava are provided “at least once a month”. That is a not the type of special diet ordered by the Court. It is a diet that does not even meet the minimum nutritional standards set for fit and healthy prisoners (see Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651 and Dr Theo Yasause v Kiddy Keko (2017) N6853). 
  
18.     The applicant has proven on the balance of probabilities that the Jail Commander at Lakiemata Correctional Institution has failed over a period of more than three years to comply with court orders requiring that he be placed on a special diet.

Alleged life-threatening condition

19.     The most recent report, dated 1 April 2019, by Dr Lawrence Warangi, Surgeon, West New Britain Provincial Health Authority, after explaining that the applicant suffers from chronic osteomyelitis (bone infection) that can be treated with antibiotics, left ankle arthrodesis and a ruptured Achilles tendon that has resulted in a foot drop, concludes:

Simon Liliura is incapacitated permanently because of the above injuries but is physically fit otherwise.

20.     On the basis of Dr Warangi’s opinion that the applicant is, apart from his impairments due to the shotgun injuries, “physically fit”, I find the failure to comply with the Court’s orders as to the special diet has not put the applicant in a life-threatening position. It is also significant that the main reason the Court ordered the special diet was that the applicant was suffering from tuberculosis. There is now clear evidence that he has been cured of tuberculosis. 

Conclusion re alleged human rights breaches

21.     I  find that:

•	the failure to comply with the Court’s orders means that the applicant has been denied the full protection of the law, amounting to a breach of human rights under Section 37(1) of the Constitution; 

•	there has been no breach of the right to protection against inhuman treatment (for the purposes of Constitution, s 36(1)) or the right to be treated with humanity and with respect for the inherent dignity of the human person (for the purposes of Constitution, s 37(17)). 

3	WHAT ORDERS SHOULD THE COURT MAKE? 

22.     If a prisoner establishes a breach of human rights committed in the course of his incarceration, it does not necessarily follow that he should be granted early release. As in any civil proceedings, it is one thing for the applicant to prove a cause of action (here, the breach of human rights is the cause of action), it is another thing to persuade the court that the remedy being sought (here, early release) should be granted. As I pointed out in Application by Benetius Gehasa (2005) N2817, an application for enforcement of human rights under Section 57(1) of the Constitution gives rise to two issues:

•	first, has a right of the applicant actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If the answer to that question is no, the court should not intervene; and 

•	secondly, if the answer is yes, the court needs to consider the second issue: whether it should grant the remedy sought or make some other order for enforcement of the right under Sections 57(1) and 57(3) of the Constitution.

23.     Section 57(1) states:

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.

24.     Section 57(3) states:

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).

25.     The applicant has proven a breach of his right to the full protection of the law, due to the continuing breach of Court orders that he be provided a special diet. The Court therefore has a discretion to exercise: whether it is necessary or appropriate to order early release, under Section 57(3).

26.     In exercising that discretion, I take into account the considerations identified in Mal’s case, in particular: (a) the nature and extent of the prisoner’s medical condition, (b) the length of time the prisoner has spent in custody, (c) the proportion of the sentence served, (d) whether the prisoner is eligible for parole, (e) the nature and circumstances of the offence of which the applicant was convicted, (f) whether the prisoner’s release poses any threat to public safety, (f) the attitude of the victims of the crime committed by the prisoner, and (g) public perception.  

27.     I consider that:

(a)	the applicant’s medical condition is not life-threatening;

(b)	the applicant has spent about 6 years, 4 months in custody; 

(c)	he has served 42% of his total sentence of 15 years, but when it is considered that with the statutory one-third remission enjoyed under Section 120 of the Correctional Service Act, his effective sentence is 10 years, he has actually served 62% of his sentence;

(d)	my preliminary view, which I express without deciding formally, is that the applicant is eligible for parole, having served one-third of his sentence (Mr Akia made a detailed submission that the applicant is not yet eligible for parole due to recent amendments to the Parole Act, however I have decided that it is not necessary to make a formal determination for the purposes of this case);

(e)	the offences of which the applicant was convicted were extremely serious and it is apparent that he played an active role in a major armed robbery, which followed the overnight detention of a bank manager and the manager’s family (see The State v Simon Liliura (2014) N5785); 

(f)	there is no evidence that his release would pose any threat to public safety;

(g)	the views of the victims are not known;

(h)	there is no evidence to show that public perception would be adverse to early release of the applicant.

28.     None of the above matters strongly favours the exercise of discretion to order early release. Factors (a) and (e) work against ordering early release. The others are neutral. The application for early release will therefore be refused.

REMARKS

29.     The applicant should consider filing a new human rights enforcement application to clarify his due date of release from custody (presently shown on his CS file, with remission, to be 22 August 2027, which may not be correct) and his date of eligibility for parole.  

ORDER

(1)	The application for early release from custody is refused.

(2)	For the avoidance of doubt, the orders of 23 May 2015 in HRA No 66 of 2015 and 28 July 2017 in HRA No 342 of 2016 requiring the Jail Commander, Lakiemata Correctional Institution, to ensure that the applicant is treated as a prisoner with special medical and dietary needs and is given priority for medical treatment at Kimbe General Hospital, remain in force, unless and until set aside by an order of this Court or the Supreme Court. 

(3)	The proceedings are thereby determined and the file is closed. 

Ordered accordingly.
__________________________________________________________________
Solicitor-General: Lawyer for the Respondents