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Enforcement of Basic Rights, In re Section 57 Constitution of the Independent State of Papua New Guinea [2014] PGNC 36; N5512 (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:

1. the purpose of the inquiry is explained;
   
2. the story as it appeared in the newspaper is set out;
   

100. the Court's jurisdiction is outlined;
     

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

50. 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 other, with one side bearing the onus of proving that the other side has done wrong. Instead, an inquisitorial procedure has been adopted.

4. The purpose of the inquiry has not been to finally determine which members of the Police Force, if any, are guilty of criminal or disciplinary offences or a breach of human rights arising from the allegations in the newspaper story. Nor has it been to decide who, if anyone, including the State, is liable to pay compensation, or to whom, if anyone, it should be paid. The purpose has not been to determine anyone's criminal or civil liability.

5. Rather, the purpose has been to:

1. determine how serious and genuine the allegations of human rights violations are;
   
2. assess the adequacy of the response of the Police Force to the allegations;
   
3. assess the adequacy of the response of the Public Solicitor to the allegations;
   
4. make declarations and orders that will enforce human rights.
   

B THE NEWSPAPER STORY

6. The story occupied most of the top half of page 4 and was under the headline "Brutal treatment of suspects", with no by-line. It read:

About 30 men were chopped on their Achilles tendon as they lay facing down allegedly by two policemen while others stood guard, a policeman said yesterday.

The policeman, who provided pictures of the injured civilians, expressed his shock and horror at the injuries done to the men, mostly from the Morobe settlement at 9-mile outside Port Moresby.

"I cried as I was taking pictures of the wounded men at Gordon police barracks," he said.

"The Gordon police cells looked like an abattoir with bloodied men lying in their blood."

The incident had its beginning in a fight at 8-mile settlement outside Port Moresby following the slaying of a young Morobean youth by suspects.

The body was placed in the middle of a field for all to see which incited the community and led to the burning down of seven houses belonging to people from the suspects' ethnic origin.

Police, led by Gordon police station commander Insp John Tarur, were called in to ease tensions and on Sunday. [sic]

A group carrying bush knives were told by police to walk to Gordon police station because they were too many to transport.

The group volunteered to walk peacefully, according to our police informant.

At the end of the Jackson's Airport two police cars drove alongside and ordered everyone to lie face down on the ground, he said.

And that is when two policemen in uniform proceeded to chop the men behind their heels with bush knives.

Our informant said almost 30 men were wounded in this manner.

Although NCD metropolitan commander Supt Andy Bawa had ordered the arrest of the group, none were charged and due to their injuries, were instead released to the hospital for treatment.

7. The story was accompanied by a photo of the lower parts of 16 human legs, arranged in such a way as to create an image of men whose legs had been cut around their ankles. The caption was "Police cells looked like an abattoir with bloodied men lying in their blood ...".

C JURISDICTION

8. Papua New Guinea's Constitution enshrines a number of human rights, also known as Basic Rights and constitutional rights. They are principally drawn from the United Nations Universal Declaration of Human Rights. They are conferred by the following sections of the Constitution:

• right to freedom (s 32);
• right to life (s 35);
• protection from inhuman treatment (s 36);
• protection of the law (s 37);
• proscribed acts (s 41);
• liberty of the person (s 42);
• freedom from forced labour (s 43);
• freedom from arbitrary search and entry (s 44);
• freedom of conscience, thought and religion (s 45);
• freedom of expression (s 46);
• freedom of assembly and association (s 47);
• freedom of employment (s 48);
• right to privacy (s 49);
• right to vote and stand for public office (s 50);
• right to freedom of information (s 51);
• right to freedom of movement (s 52);
• protection from unjust deprivation of property (s 53);
• equality of citizens (s 55).
  

9. As I have said in previous cases – and this is a message that needs continual reinforcement – these are not paper rights or mere expressions of principle (Re Release of Prisoners on Licence (2008) N3421, Nail Lamon v Snr Const Zakang Bumai (2008) N3468). These are justiciable, legal rights. They can be enforced in the National Court and the Supreme Court, primarily under Section 57 but also under Sections 22, 23 and 155(4) of the Constitution.

10. Section 57(1) (enforcement of guaranteed rights and freedoms) is the provision I have invoked to initiate this inquiry. It provides:

A right or freedom referred to in this Division [III.3, Basic Rights] shall be protected by, and is enforceable in, the Supreme Court or the National Court ... either on its own initiative or on application by any person who has an interest in its protection and enforcement ... [emphasis added].

11. Sections 22 and 23 are specifically directed at the National Court and reinforce the principle that that Court has an obligation to ensure that the Basic Rights are actually put into effect. These provisions are further addressed towards the end of the judgment, under the heading "Sanctions". The combined effect of these provisions is to authorise, and oblige, the National Court, if it identifies a case of apparent breach of the Basic Rights, to act on its own initiative to protect and enforce them. If it is satisfied that Basic Rights have been breached, it is empowered to:

• make 'all such orders and declarations as are necessary or appropriate' for the purpose of protecting and enforcing the Basic Rights (s 57(3)); and
  
• supply any lack of supporting, machinery or procedural laws to ensure that the Basic Rights are 'not left without effect' (s 22); and
  
• if it 'thinks it proper to do so', make 'any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty' imposed on a person who has breached the Basic Rights of others (s 23(2)); and
  
• make, in such circumstances as seems to it proper, such orders 'as are necessary to do justice in the circumstances of the particular case' (s 155(4)).
  

D PROCEDURES

12. This inquiry was commenced in accordance with Rule 8 (commencement of proceedings by the court) of the Human Rights Rules 2010 (Order 23 of the National Court Rules), which states:

(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.

13. The originating process, bearing the file reference HROI No 2 of 2013, was issued in Form 126 of the National Court Rules, on the same day that the story appeared in the newspaper, in the following terms:

THE NATIONAL COURT, having taken notice of a report in The National newspaper of 28 May 2013 at page 4 "Brutal treatment of suspects", which contains allegations of Police conduct that would if true be evidence of serious human rights violations, under Section 57(1) of the Constitution, COMMENCES THESE PROCEEDINGS on its own initiative to enforce the rights and freedoms of the suspects referred to in the newspaper report, those rights being:

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

AND FOR THE PURPOSES OF THESE PROCEEDINGS THE FOLLOWING PERSONS ARE UNDER SECTION 57(3) OF THE CONSTITUTION SUMMONED TO APPEAR BEFORE THE NATIONAL COURT AT WAIGANI ON 29 MAY 2013 AT 3.00 PM 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 NCD Metropolitan Police Commander;
   
2. the Police Station Commander, Gordon Police Station;
   
3. the Public Solicitor, or a senior officer from the Office of the Public Solicitor appointed by the Public Solicitor who is in a position to receive directions from the Court;
   
4. any person who wishes to make a complaint to the Court or to consider taking any form of legal action regarding these allegations.
   

AND TAKE NOTICE that failure 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.

DATED THIS 28th DAY OF MAY 2013

JUSTICE CANNINGS

A JUDGE OF THE NATIONAL COURT OF JUSTICE

14. The originating process was served immediately on the three main targets and they appeared before the Court, answering the summons, the next day, 29 May. They were:

• Superintendent Andy Bawa, the NCD Metropolitan Commander;
• Senior Inspector John Tarur, Gordon Police Station Commander;
• Ms Emma Wurr, senior lawyer, Office of the Public Solicitor.
  

15. I announced at the hearing on 29 May that the allegations in the newspaper report were of great concern to the Court, as if they were true, this would amount to very serious abuse of human rights committed by members of the Police Force. By inquiring into the matter the Court was giving the opportunity to the Police Force and its members to show that the allegations were untrue, or that the incident had been misreported. I ordered Supt Bawa and Snr Insp Tarur to prepare affidavits, responding to the allegations in the newspaper story and to file and serve them by 3 June, so that they could be considered by the Court at the next hearing on 5 June.

16. I invoked Section 177(2)(b) (functions of the Public Prosecutor and the Public Solicitor) of the Constitution and directed the Public Solicitor to provide legal aid, advice and assistance to the alleged victims. Section 177(2)(b) states:

The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular ... he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court.

17. The following table diarises the inquiry and the procedures adopted.

E EVIDENCE GIVEN ON BEHALF OF THE POLICE FORCE

18. I will summarise the evidence in relation to two matters. First, the incident of 26 May 2013. Secondly, the response of the Police to the allegations arising from the events of that day.

The incident of 26 May 2013

19. Evidence of the incident that was the subject of the newspaper story, what led up to it and what happened immediately afterwards came from two witnesses, Supt Bawa and Snr Insp Tarur, whose evidence is summarised in the following table.

Response to allegations

20. Evidence of the Police response to the allegations of human rights violations came from two witnesses, Supt Bawa and Chief Sgt Yakapu, whose evidence is summarised in the following table.

6. EVIDENCE GIVEN ON BEHALF OF THE PUBLIC SOLICITOR
   

21. No direct evidence was presented in relation to the incident of 26 May. Evidence given on behalf of the Public Solicitor was confined to what had been done in response to the incident and to the direction of the Court to provide legal aid to the victims. The evidence came from the lawyer with carriage of the matter, Ms Wurr.

7. HOW SERIOUS AND GENUINE ARE THE ALLEGATIONS OF HUMAN RIGHTS VIOLATIONS?
   

22. I reiterate that these are not findings of fact in the conventional sense. It was not the purpose of the inquiry to make final, binding findings as to what happened on 26 May, on which could be based a determination of criminal or civil liability. That will come later when, it is expected, the Police suspects are prosecuted and when civil proceedings are tried in the National Court. The purpose of the inquiry has always been to find out what the details of the allegations are, and to determine how serious and genuine they are, and whether they have been adequately responded to by the Police and the Public Solicitor. This inquiry is the beginning of the process of justice, not the end.

Allegations of fact

1. On Sunday 26 May 2013 in the daytime (the evidence is not precise as to the time of events, but I estimate at about 3.00 pm) a group of at least 74 youths and men were walking from Eight Mile towards Six Mile, NCD.
   
2. The ethnic origin of those men, who are referred to as "the victims", is Morobe Province.
   
3. They had earlier that day attended a mediation session at Eight Mile, supervised by the Police, relating to ethnic tension that was brewing between them and a group of people from the Sepik. The tension arose as a result of the death of a Morobe youth, allegedly killed by Sepik youths, the previous day, and the subsequent burning by Morobe people of houses belonging to Sepik people.
   
4. The Morobe men were armed with various weapons and behaving in a manner that was, from the point of view of Police, suspicious, so four Police units, travelling in 10-seater Landcruiser vehicles, were dispatched to intercept and apprehend them.
   
5. The Morobe men were intercepted by the Police, led by Snr Insp Tarur, the Gordon Police Station Commander, at Seven Mile, within the Jackson Airport precinct, near the Helifix and Airlines PNG buildings. Snr Insp Tarur directed them to lie face down on the ground (on the grass), in a straight line that stretched about 50 metres.
   
6. The Morobe men did as they were told and the Police went along the line searching for weapons.
   
7. In the process of conducting the body searches, some members of the Police assaulted the men in various ways and to various degrees. Some Police assaulted them by kicking and hitting them, with weapons such as gun butts and tree branches. Some Police used bush knives to cut the men, mainly on the lower part of their legs, the ankles and Achilles tendons of the men being targeted.
   
8. According to the evidence of Snr Insp Tarur, he and the officer who was supporting him in command of the operation, Insp Yosman, did not take part in the assaults on the victims and actively tried to stop what was happening. They directed the members of the Police who were assaulting the victims to stop, but their directions were ignored and openly rebelled against in the case of Insp Yosman who had a gun pointed at him by one of the members involved in the assaults. There appears to have been a breakdown in command, control and discipline.
   
9. The Metropolitan Commander, Supt Bawa, was not present but was aware of the ethnic tension and the suspicious behaviour of the Morobe group and had given instructions by Police radio to Snr Insp Tarur to intercept them; and he was made aware of the apprehension of the victims and ordered that they be arrested and taken to Gordon Police Station.
   
10. After they had been searched, assaulted and wounded, the 74 Morobe men were taken by the Police to Gordon Police Station and detained in confined spaces there for several hours. Many of them were bleeding from wounds inflicted by the Police, thereby exposing members of the group to the risk of infection and exposure to transmissible diseases such as HIV/AIDS.
    
11. When the seriousness of their injuries became clear, the victims were taken to Gerehu Clinic for medical treatment.
    
12. None of the victims has been charged with any offences.
    
13. The two Police members identified as being primarily involved in the assault on the victims are:
    
    • ➢ Const Hilary Weni (Waigani Police Station) and
    • ➢ Const Steven Siskii (Hohola Police Station).
      

Others implicated are:

➢ Sgt Gwaibo (aka Jack) Gimana (Central Highway Patrol),
➢ Sgt Jack Wesel (Waigani Police Station),
➢ Const Jimmy Baiyo (Central Highway Patrol),
➢ Const Marven Pepa (Gordon Police Station),
➢ Const William Hoiba (Central Highway Patrol).

Allegations about human rights violations

23. The allegations about the circumstances and manner in which the 74 men were arrested, searched, assaulted, wounded and detained would, if sustained, appear to amount to a breach of at least five of their human rights.

1 Their right to freedom from inhuman treatment under Section 36(1) of the Constitution, which 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.

2 Their right to the full protection of the law under Section 37(1) of the Constitution, which 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.

3 Their right to be treated with humanity and with respect for the inherent dignity of the human person under Section 37(17) of the Constitution, which states:

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

4 Their right to be protected against harsh or oppressive acts or other acts that are not reasonably justifiable under Section 41(1) of the Constitution, which states:

Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

5 Their right not to be deprived of their liberty except as authorised by Section 42(1) of the Constitution, which states:

No person shall be deprived of his personal liberty except—

(a) in consequence of his unfitness to plead to a criminal charge; or

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i) his care or treatment or the protection of the community, under an order of a court; or

(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

How serious and genuine are the allegations?

24. Having regard to the evidence available to the Court, and bearing in mind that only one version of events has been supported by the evidence, and also considering that the Police, despite an open invitation by the Court, have not adduced any evidence to counter the allegations, I consider that:

• these are serious and genuine allegations of human rights abuses committed by members of the Police Force;
  
• these are the sort of allegations which, even without media publicity and without being the subject of this constitutional inquiry, demanded a full, competent and speedy investigation by the Police;
  
• the Commissioner of Police was duty-bound to ensure that such an investigation took place and that it had two strands: a criminal investigation and a disciplinary investigation;
  
• the Ombudsman Commission could, and should, have exercised its independence and initiative and undertaken its own investigation;
  
• the Public Solicitor should have taken the initiative and sought out the victims referred to in the newspaper story, he should not have waited to be told by the Court to do the obvious: provide legal aid, advice and assistance for those persons in need of help by him.
  

8. WAS THE RESPONSE OF THE POLICE FORCE ADEQUATE?
   

25. After initial assurances of cooperation with the Court and expression of sentiments such as the Police take a "zero tolerance" approach to Police brutality, the Police response has been very disappointing.

Initial action and cooperation

26. They started well. As early as 28 May, the day of the newspaper report, the NCD Superintendent of Operations, Chief Insp Perou, instructed the NCD Internal Investigation Unit to investigate the allegations. On 29 and 30 May, Police suspects were brought into Six Mile Police Station for interview. On 30 May Chief Sgt Yakapu joined the investigation team.

27. On 31 May the initial investigation team was divided into two teams, one to deal with criminal charges, the other to deal with disciplinary charges.

28. On 2 June the two members of the Force who had become the prime suspects in the alleged human rights abuses – Const Steven Siskii and Const Hilary Weni – were arrested and charged with three counts of unlawful wounding. Given the seriousness of the allegations – according to the newspaper report there were 30 victims and the Police had used bush knives to cut their Achilles tendons – the number and nature of the charges were slight. But it was only one week after the incident, and Chief Insp Perou advised Supt Bawa that more criminal charges would soon be laid and that disciplinary charges could also be imposed soon.

29. Both Supt Bawa and Snr Insp Tarur complied with the initial order of the Court to file affidavits in response to the allegations by 5 June. Snr Insp Tarur's affidavit gave a detailed account of the incident of 26 June. Supt Bawa's affidavit was short on detail and vague. But at least he complied substantially with the order, which is better than ignoring Court orders, a practice that he later developed.

June

30. Little progress was made in the criminal or disciplinary investigations during June, prompting Chief Insp Perou to send a minute to Chief Sgt Yakapu (who was in charge of the criminal investigation) stressing the need for urgency.

31. On 25 June Mr Miviri did not appear in Court, as required. Supt Bawa, though he appeared before the Court, had not complied with the order of 5 June to prepare another affidavit detailing the progress of the Police investigations, by 21 June. He eventually filed the affidavit, one week later than required, on 28 June. This was the first sign of a lack of co-operation with the Court by the Police. Supt Bawa was directed to file a further affidavit deposing to the precise steps that have been taken by the Police to investigate the incident of 26 May, by 25 July. The inquiry was adjourned to 30 July.

July

32. I was hoping to be reassured at the hearing on 30 July that after little progress in June, the Police had picked up the pace in their investigations and that the Court's inquiry could soon be closed. However, both Mr Miviri and Supt Bawa failed to appear on 30 July. I summoned them to appear the next day and warned about the prospect of contempt of court charges being laid.

33. On 31 July Supt Bawa appeared and apologised for his absence the previous day, saying that he had mixed up the date of the hearing. He had also overlooked the Court's order of 26 June, which required him to file a further affidavit by 25 July. He was given further time, to 21 August, to file the affidavit. Mrs Gelu of the Office of Solicitor-General appeared on behalf of Mr Miviri, who had made the strange decision, without notifying this Court, to give priority to his appearing in a part-heard criminal matter in the Lae District Court over a constitutional inquiry before the National Court in Waigani. The inquiry was adjourned to 28 August.

34. July therefore passed without any tangible progress in the Police investigations, and with the Court's inquiry stalled due to a lack of diligence on the part of the Police.

August

35. August saw, at last, some progress in the Police criminal investigation. The court was told that there was sufficient evidence to charge each of five members of the Police Force with 44 counts of stealing with armed robbery and 31 counts of unlawful wounding. The stumbling block was, according to the evidence of Chief Sgt Yakapu, "computer problems". This was a lame excuse for inaction. But at least the conclusion of the criminal investigation seemed to be in sight.

36. Mr Miviri thankfully made an appearance at the hearing on 28 August. It was on that day that Chief Sgt Yakapu first gave oral testimony. The Police were showing signs of again co-operating with the Court. However, it was not all good news as Supt Bawa failed, again, to comply with the Court's order to provide a further affidavit deposing to the precise steps that have been taken by the Police to investigate the incident of 26 May. That order was made on 26 June and required him to file the further affidavit by 25 July, so it could be considered at the hearing on 30 July. He missed that deadline, so on 31 July he was given further time, to 21 August. The inquiry was adjourned to 17 September.

September-October

37. A decision appears to have been made in September to reduce the number of members to be criminally charged to four: Sgt Gwaibo Gimana, Sgt Jack Wesel, Const Hilary Weni and Const Steven Siskii. The Court was assured that the evidence to charge them had been compiled and that it was still the plan to charge each of them with 44 counts of armed robbery and 31 counts of unlawful wounding. But were they actually charged?

38. Chief Sgt Yakapu gave oral evidence that Const Weni and Const Siskii had been charged, but could not produce copies of the charges or the informations by which the District Court committal proceedings had been commenced. These are indictable offences and the accused must initially face the District Court, which has to examine whether there is prima facie evidence in support of the charges to warrant the accused being committed for trial before the National Court.

39. As for Sgt Gimana and Sgt Wesel, they had not been charged, Chief Sgt Yakapu said, because they were not co-operating. Messages had been passed to them through their Police Station Commanders but they had not come in for interviews. This was a poor excuse for a senior Police investigator to give for the failure to arrest members of the Police Force alleged to be involved in such serious criminal conduct.

40. The court hearing on 17 September was the last before the day set for submissions, 1 November. The Police (in particular the NCD Metropolitan Commander and the Gordon Police Station Commander) were given until 17 October to file further affidavits to explain the steps they had taken to respond to the alleged human rights violations. The inquiry was adjourned to 1 November.

Submissions of 1 November

41. The Police failed by the day of this hearing to present any further evidence. Mr Miviri submitted that appropriate steps had been taken by the Police to respond to the allegations arising from the incident of 26 May. Two members of the Force are facing serious charges, and they will be prosecuted in accordance with law, he submitted.

42. I reject that submission. Despite extremely serious and genuine allegations of human rights violations and criminal conduct against up to seven members of the Police Force, for offences committed against 74 (or 75) victims, despite five months having passed since the incident, despite an internal investigation conducted by five or six Police investigators, despite a senior Police officer who was present at the incident giving direct evidence of what happened and who was involved, despite this incident receiving extensive media coverage and being the subject of a constitutional inquiry, despite the Court's repeated urging for the Police to act more quickly, and despite court orders directed specifically at Supt Bawa to provide the Court with evidence as to what precise steps the Police are taking:

• the Police can only say that two members of the Force have been charged;
  
• evidence of the charges actually laid has not been provided;
  
• no information has been provided on the progress, if any, of the committal proceedings in the District Court;
  
• no explanation has been given of why all members of the Force implicated have not been charged;
  
• the Police have made no attempt to persuade the Court that the allegations reported in the newspaper story are untrue;
  
• no attempt has been made to justify the actions of the members of the Force who have been implicated in the assault and wounding of 74 men, so why haven't more members been charged?
  
• there is no evidence of any member being charged with a disciplinary offence under the Police Act, despite clear evidence of a breakdown in discipline, command and control during the apprehension of the suspects;
  
• the excuses given for not taking more decisive and speedy 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;
  
• the counsel for the Police, Mr (Chief Supt) Miviri, has failed on numerous occasions to discharge his duty as an officer of the Court to assist the Court in this inquiry;
  
• the NCD Metropolitan Commander, Supt Bawa, has failed repeatedly to comply with orders to provide the Court with evidence of the precise steps being undertaken by the Police to investigate the allegations and charge those members implicated.
  

I find that the Police response has been woefully inadequate.

1. WAS THE RESPONSE OF THE PUBLIC SOLICITOR ADEQUATE?
   

43. The first thing to say about the Public Solicitor's response is that it has been much better than that of the Police. The Public Solicitor has been represented at each Court hearing. Two specific orders (dated 5 and 26 June) have been directed at the Public Solicitor requiring him to detail the precise steps taken to give legal aid, advice and assistance to the persons affected by the incident of 26 May. Both orders were complied with by Ms Wurr, on behalf of the Public Solicitor, and the Court did not have to give any reminders or extensions of time.

44. However, after an initial surge of activity in June (meetings with victims and families, identification of the number of victims, creation of file for each victim, medical report sought for each victim) progress was slow. It was not until 30 July – two months after the incident – that all medical reports were received. It is important in cases such as this, where medical evidence is vital, to obtain reports quickly after the incident while the examination of the patient and the treatment given are fresh in the mind of the medical practitioner preparing the report. Ms Wurr said that the victims were having difficulty raising the K3,700.00 required for the medical reports. I would have thought that there would be a fund available within the Office of Public Solicitor that could be drawn on in such situations.

45. A further three months passed before the Public Solicitor gave notice to the State under Section 5 of the Claims By and Against the State Act of the victims' intention to make a claim against the State. This was a critical step to take. Such a notice must be given "within a period of six months after the occurrence out of which the claim arose". It had to be given by 25 November 2013. It was given on 31 October 2013, one day before the final day of the Court's inquiry. That was cutting it too fine. It meant that the inquiry would be completed without any civil proceedings being instituted. This reinforced the impression gained throughout the inquiry that the Public Solicitor's response to the allegations of human rights violations was too slow and reactive, not proactive.

46. The Public Solicitor should not have waited to be summoned to the Court on 29 May and directed by the Court to provide legal aid, advice and assistance to the victims. He should have taken the initiative. He should have sought out the people referred to in the newspaper story.

47. As the Supreme Court recently pointed out in the case relating to the constitutional challenge by the Leader of the Opposition to the arrangements between Papua New Guinea and Australia regarding the regional processing centre for asylum seekers at Manus (Namah v Pato (2014) SC1304) the Public Solicitor is a constitutional office-holder who should feel a great responsibility for protection and enforcement of human rights in Papua New Guinea. He should be constantly alert to alleged breaches of human rights, particularly those committed on a mass scale and in such a cruel and vindictive manner as reported in the newspaper on 28 May. He should be aware that the issue of Police brutality is a burning issue in Papua New Guinea.

48. Too many people do not trust or respect the Police. Too many people fear them. This incident, as it was reported in the newspaper, shows why.

49. The Public Solicitor, Mr Frazer Pitpit, should have been right on top of this case. It should have been a cause célèbre. It still might be. But the impression given by his handling of the matter is that he sees it as just a routine case of no particular interest or significance.

50. Mr Pitpit has not made a single appearance in this inquiry. I take judicial notice of the fact that during the course of 2013 he did not have a current practising certificate issued to him under the Lawyers Act. That unsatisfactory state of affairs appears to have continued in 2014. The Public Solicitor had no right of appearance in this inquiry. He could, however, have sought the leave of the Court to make an appearance. That would have at least been a gesture by which he could reassure the Court of his interest in this matter and his awareness of its significance.

51. The Public Solicitor is a constitutional office-holder. He is one of the three Law Officers of Papua New Guinea (the others are the principal legal adviser to the National Executive and the Public Prosecutor). He has an inherent and constitutionally recognised interest in the protection and enforcement of human rights. He is an integral part of the National Justice Administration. He has a great measure of independence. He cannot, except in limited ways provided for by the Constitution, be directed or controlled in the discharge of his constitutional functions, which are primarily "to provide legal aid, advice and assistance for persons in need of help by him" (see Constitution, Sections 57(2), 154, 156, 176(1), 176(2), 176(5), 177(2) to (6), 221(b)).

52. The best way for the Public Solicitor to provide legal aid, advice and assistance to needy persons whose human rights have been allegedly violated on a mass scale is to represent them in Court. To be the principal advocate for the needy. To be the country's leading human rights lawyer. To provide leadership to the lawyers in his office whose duty it is also to protect and enforce human rights. How can Mr Pitpit do this if he does not appear in Court?

53. I find that the Public Solicitor's response, though much better than that of the Police, has been too slow, and reactive rather than proactive, demonstrating a failure to appreciate the significance of the matter.

J SHOULD THE INQUIRY BE CLOSED?

54. I initially planned to bring this inquiry to a close a long time ago. I thought that in view of the early display of cooperation and commitment by the Police and the Public Solicitor, the inquiry could have been completed by the end of July 2013, two months after the incident and the newspaper report that triggered the inquiry. I thought that by then the Court could be confident that the members of the Police Force who needed to be charged would have been charged and that the committal process in the District Court would have been commenced. The Public Solicitor would have marshalled the necessary evidence to give notice to the State of the intention to commence civil proceedings for enforcement of human rights in the National Court.

55. If those things had happened, the Court would have achieved what it set out to do: to ensure that the allegations that appeared in the newspaper were checked out – to rule out the possibility of a media beat-up – and to ensure that the relevant authorities – who have been regarded all along as the Police and the Public Solicitor – had responded appropriately to the allegations. The intention was never to determine anyone's criminal or civil liability.

56. I was conscious throughout of the need not to make conclusive findings of fact or law, as to do so would be to pre-judge issues that can only be finally determined in criminal or civil proceedings in which all those implicated in having done wrong are given a right to be heard.

57. July came and went and I was not satisfied with the progress made by the Police or the Public Solicitor, so the inquiry continued. I announced at the hearing on 17 September that it had to wind up soon and I adjourned to 1 November. I heard final submissions that day and reserved judgment, fully intending to present a judgment in the nature of a final report on the inquiry.

58. I have changed my mind. I cannot bring the inquiry to a close as I am not satisfied of the adequacy of the response of the Police and the Public Solicitor. If this judgment is the final report too many issues would be left hanging in the air. I would just be giving the message 'the Police have done a lousy job, the Public Solicitor has done a barely adequate job, end of story'. That would not go a long way towards protection and enforcement of human rights.

59. I have to continue this inquiry. I need to be satisfied that appropriate action has been taken by the Police regarding the members of the Police who have been implicated. I need to be satisfied that proper criminal charges have been laid, that proper disciplinary charges have been laid, that charges are being pursued with vigour, that there is no soft-pedalling by the Police regarding their colleagues. The Court's orders still need to be complied with. The Court, and the People of Papua New Guinea, need to be informed about the facts of the Police investigation. They are owed an explanation. Why has the investigation gone practically nowhere?

60. The Court has been very critical of Supt Bawa. He has an extraordinarily onerous and responsible position: the senior Police officer in charge of law enforcement in one of the most dangerous cities in the world. But he failed in his duty to the Court and to the People of the National Capital District to ensure that a proper investigation was conducted. He promised much but delivered little. He failed to comply with Court orders. He and his counsel, Mr Miviri, failed to cooperate with the Court and be honest with the Court about what was happening with the Police investigation.

61. The Commissioner of Police, Mr Toami Kulunga, must also appear before the Court. He bears ultimate responsibility for the Police Force's mishandling of this case. The Commissioner was reported in The National of 30 May 2013 (the day after the opening day of the inquiry) as saying, in relation to the incident of 26 May:

The alleged actions of the policemen are totally unbelievable. ... We have no place for such evil and brutal policemen or women. We are police officers and we have sworn an oath to protect and serve, not abuse and insult, maim or kill.

62. The newspaper report of 30 May continued:

Kulunga called a special meeting yesterday with senior officers, including Deputy Commissioner operations Simon Kauba and Deputy Commissioner Administration Awan Seta where he demanded immediate police action over the case. ...

During the meeting, Kulunga was given a full briefing of the most recent incident which started last Saturday at 8-Mile outside Port Moresby.

Kulunga issued instructions for those involved in the assault and wounding case to be immediately suspended and tried both administratively and criminally.

63. Was the Commissioner misquoted in the newspaper? He needs to be given the opportunity to explain the institutional failure of the Police Force to properly investigate this matter and his apparent personal failure as leader of the Force to ensure that other members of the Force did their jobs.

64. The Public Solicitor also has much to answer for. He needs to make an appearance in Court, for a start. He needs to explain why he has taken so long to commence court proceedings. He needs to assure the Court that this important case is being given priority. He needs to notify the Court that he in fact has a current practising certificate or give a good explanation for not having one.

65. All those public officials who have been criticised in this judgment need to be given an opportunity to respond to the criticism. Is it ill-founded? Is it unfair? Has the Court been too harsh? They must also be given the opportunity to explain what they have done after 1 November 2013 (the last day of hearings) to respond to the allegations.

66. The inquiry will not be closed. It will only be closed when the Court is satisfied that both the Police and the Public Solicitor have responded adequately to the extremely serious and genuine allegations of human rights violations that are at the heart of the inquiry. Or when the Court reaches the point that the only way to close this case is to impose sanctions on those officials who have failed to comply with their constitutional duties.

K SANCTIONS

67. Imposing sanctions on public officials for not doing their jobs might be the best way of protecting and enforcing the human rights that have allegedly been breached in this case.

68. What do I mean by sanctions? Inspiration is provided by the Constitution. As the Supreme Court emphasised in Namah v Pato (2014) SC1304 the Constitutional Laws of Papua New Guinea are not simply statements of general principle. They impose and confer real and enforceable powers, functions, duties and responsibilities, which exist by operation of the Constitution, without the need for supporting, machinery or procedural laws to bring them into effect. This principle is reinforced by a bundle of enforcement provisions, especially Sections 11(2), 22, 23 and 57:

69. Section 11(2) (Constitution as supreme law) states:

The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

70. Section 22 (enforcement of the Constitution) states:

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.

71. Section 23 (sanctions) states:

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or

(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

72. Section 57(3) (enforcement of guaranteed rights and freedoms) 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).

73. Section 155(4) (the National Judicial System) states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

74. The Court also has power to charge those who fail to cooperate with the Court with contempt of court and impose criminal sanctions including a term of imprisonment and/or a fine on those guilty.

75. I earnestly hope that this inquiry does not get to the stage where the possibility of imposing sanctions has to be more than mentioned in passing. I trust that the criticisms of institutions and individuals in this judgment will be taken in good spirit and responded to with clear and decisive action by those who the Court has found, at this stage, to have failed.

L DECLARATIONS AND ORDERS

76. It is declared and ordered, pursuant to Sections 22, 23(2), 57(3) and 155(4) of the Constitution, as follows:

(1) It is declared that extremely serious and genuine allegations of human rights violations exist against members of the Police Force in regard to an incident that took place near Jackson's Airport, Seven Mile, National Capital District, on Sunday 26 May 2013, in that it is alleged that:

• (a) 74 youths and men – "the victims" – who were walking in a group and behaving suspiciously, were intercepted by the Police and directed to lie face down on the ground in a straight line;
  
• (b) the victims did as they were told and the Police went along the line searching for weapons;
  
• (c) in the process of conducting the body searches, some members of the Police assaulted and injured the victims, in various ways and to various degrees, some Police assaulting them, without good cause, by kicking and hitting them, with weapons such as gun butts and tree branches, some Police using bush knives to cut the men, mainly on the lower part of their legs, the ankles and Achilles tendons of the men being targeted;
  
• (d) the allegations about the circumstances and manner in which the 74 victims were arrested, searched, assaulted, wounded and detained would, if sustained, appear to amount to a breach of the following human rights:
  
  • (i) their right to freedom from inhuman treatment under Section 36(1) of the Constitution;
    
  • (ii) their right to the full protection of the law under Section 37(1) of the Constitution;
    
  • (iii) their right to be treated with humanity and with respect for the inherent dignity of the human person under Section 37(17) of the Constitution;
    
  • (iv) their right to be protected against harsh or oppressive acts or other acts that are not reasonably justifiable under Section 41(1) of the Constitution;
    
  • (v) their right not to be deprived of their liberty except as authorised by Section 42(1) of the Constitution.
    

(2) It is declared that members of the Police Force implicated in the alleged human rights violations and alleged criminal and disciplinary offences committed are:

• (a) Const Hilary Weni (Waigani Police Station);
• (b) Const Jimmy Baiyo (Central Highway Patrol);
• (c) Const Marven Pepa (Gordon Police Station);
• (d) Const Steven Siskii (Hohola Police Station);
• (e) Const William Hoiba (Central Highway Patrol);
• (f) Sgt Gwaibo (aka Jack) Gimana (Central Highway Patrol);
• (g) Sgt Jack Wesel (Waigani Police Station).
  

(3) It is declared that the steps taken by the Police Force in response to the allegations and the Court's inquiry have been woefully inadequate.

(4) It is declared that 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.

(5) It is ordered that this inquiry will continue and the persons named in the Schedule are summoned to personally appear before the Court at its next hearing to address the issues set out in the Schedule.

(6) The date, time and place of the next hearing will be set in consultation with the persons named in the Schedule.

SCHEDULE

Judgment accordingly.
_________________________________________________________
Public Solicitor: Lawyer for the suspects & Public Solicitor :
Chief Supt Nicholas Miviri: Lawyer for the Police Force & its members