On 30 July 2021, the Supreme Court of Papua New Guinea handed down its judgment in Independent State of Papua New Guinea v Tamate,[i] which demonstrated that the death penalty remains a controversial criminal justice issue in the country. This post sets out the constitutional matters arising in the Tamate case, which centred on the question of whether a judge-led inquiry could examine the human rights situation of prisoners held on death row. It argues that the Supreme Court judgment assessed this question in an unclear way, which will likely lead to further litigation, while in the meantime death row prisoners will experience ongoing human rights violations due to their extended incarceration under sentence of death.

The Constitutional Assessment of Incarceration Duration on Death Row

Papua New Guinea’s (PNG) last execution occurred in 1954. The punishment was removed for ordinary crimes in 1974 and was reintroduced through the Criminal Code Amendment Act 1991. Since this time, successive governments have functioned under a politically permissible capital judicial process, but it was not clear whether the National Executive Council (NEC) had appropriately organised the Advisory Committee on the Power of Mercy (ACPM) so that it could receive clemency petitions. As a result, an institutional inertia had developed which administratively prevented the completion of the death warrant.

In 2014, in the National Court, Cannings J in Re Human Rights of Prisoners Sentenced to Death,[ii] conducted a judge-led human rights inquiry into the impact of this situation for those on death row. Evidence was presented that of the 23 people sentenced to death since 1991, 14 remained incarcerated, with some inmates now imprisoned for over 17 years (the longest serving prisoner is Kepak Langa, sentenced to death on 26 September 2003).

This inquiry was initiated under the National Court Rules,[iii] through Section 57 of the Constitution of the Independent State of Papua New Guinea, which provides:

A right or freedom…shall be protected by, and is enforceable in…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).

The National Court held that the non-functioning of the ACPM prevented death row inmates from having the opportunity to effect the full legal protection of the Constitution. Their human rights were violated due to the extended duration of time spent on death row.

This decision was appealed in Tamate. The Supreme Court’s review predominantly focused upon the procedure surrounding the inquiry, with the majority judgment quashing the decision of the National Court’s inquiry. However, the reasons for this outcome are not entirely clear.

The Supreme Court cogently explained that in an ‘adversarial process,’ the opposing sides in a proceeding are responsible for conducting their own presentation of evidence and cross-examination, whereas in an ‘inquisitorial process’ a judge takes a direct role in examining witnesses and reviewing written submissions, with the purpose of revealing evidence for informing a determination. Whilst in the court’s judgment this distinction is clear and reasonably explained, the outcome of the case is less convincing. This is due to the fact that the majority’s legal reasoning is supported by cited authorities predominantly focusing upon pre-trial and trial issues, and not a ‘post-conviction review’ which was the focus of the National Court inquiry. For example, in his citation of Ermas Wartoto v State,[iv] Kandakasi DCJ relied upon Injia CJ’s dictum that the constitutional powers should not, “be read and applied to override the criminal trial process in the National Court.”

This reasoning fails to adequately explain how this authority is fairly applied to a judge-led review of a ‘post-conviction’ issue. The focus of the majority’s legal precedent pointed to the appropriateness of the adversarial process for determining ‘pre-trial’ and ‘trial’ issues, but did not adequately deal with the question of ‘post-conviction’ proceedings, and therefore, a judge-led inquiry of such a proceeding.

Further legal research appears necessary and it is to be expected that there will be subsequent litigation seeking clarity on this judgment. A cogent basis is provided by the dissent in Tamate of Manuhu J, who pointed to the fact that the majority had adopted an unusual interpretation instead of following the ‘clear parliamentary intention’ and so:

On a plain reading of section 57, there is no doubt that the Supreme Court and the National Court may initiate proceedings on their own initiative to protect and enforce guaranteed rights and freedoms (emphasis added).

Judge-led Initiatives in the Common Law Tradition

The 2020 English case of R v. Manning[v] preceded the Tamate judgment and can be read to provide support for the dissent of Manuhu J. In Manning, the Criminal Division of the Court of Appeal reviewed the impact of COVID-19 infection rates upon UK prisons and held that, “[t]he current conditions in prisons present a factor which can be properly taken into account in deciding” the question of sentence. Hence, the assessment of significant vexatious pressures which detrimentally impact upon the normal workings of the prison system can be considered when determining an appropriate sentence. In Manning the pressure placed upon UK prisons was through the COVID-19 pandemic, and in Tamate it was caused by the non-functioning of the APCM.

The exorbitant increase of an inmate’s length of time on PNG’s death row is such a significant human rights issue that, under the circumstances, it should be reviewable within the important facility of a judge-led inquiry under s. 57 of the Constitution. Examples from the UK concerning significant questions of public policy and human rights include the 2011-12 Inquiry into the Culture, Ethics and Practices of the Press chaired by Lord Justice Leveson and the inquiry into the 2017 fire at Grenfell Tower currently being conducted by Sir Martin James Moore-Bick.

Incarceration duration on death row is a reviewable issue within an adversarial process and a judge in the National Court conducting a s. 57 inquiry may be informed by the 1993 judgment in Pratt and Morgan v The Attorney General of Jamaica and another,[vi] in which the Judicial Committee of the Privy Council held it was a violation of s. 17(1) of the Constitution of Jamaica for a prisoner to remain under sentence of death for more than five years. This case is reflective of what is termed the jurisprudence on the ‘death row phenomenon,’ which was established in the 1989 European Court of Human Rights case of Soering v UK.[vii]

All of the inmates included in the Tamate litigation have been on death row for more than five years, and Manuhu J held that this cut-off point was reasonable in supporting the findings of the inquiry in the National Court. Whilst the reasons for the quashing of the inquiry appear unclear, it is hoped that any further proceedings will demonstrate that the length of time of all of the current inmates on death row in PNG is inhumane and thus unconstitutional. As each day passes, the human rights violations of PNG’s death row population are compounded, and it cannot now be constitutional to execute any of them. It is time to commute the death sentences of all of those on death row and for the government to take the commendable action of abolishing the death penalty.  

Jon Yorke is Professor of Human Rights and the Director of the BCU Centre for Human Rights at Birmingham City University. He is a member of the UK Foreign, Commonwealth and Development Office’s Pro-Bono Lawyers Panel, in which he advises the British Government on death penalty matters and he has drafted amicus curie briefs for the UK Government’s submissions in US courts. His recent work focuses upon submitting on the death penalty as a violation of international law in Stakeholder Reports to the Universal Periodic Review.