Part I of this post provided an assessment, through the litigation in Independent State of Papua New Guinea v Tamate, that the executive and courts of Papua New Guinea (PNG) have not been able to rectify the human rights implications of inmates’ prolonged duration on death row – which in some cases has now surpassed 17 years. Whilst there were significant constitutional matters to be determined, an important lens for the human rights issues was the international standards on the death penalty. The majority decision side-stepped considering the thresholds on duration on death row, and the Government has been similarly reticent in engaging with international standards. This post examines recent observations from international mechanisms on the issue of the death penalty in PNG. It argues that the abolition of capital punishment would be an important step in meeting PNG’s international commitments, and that these observations can be helpfully informed by contemporary social science research.
United Nations Special Procedures
UN Special Procedures mandate holders have reported on PNG at various points in time. In 2012, Juan E. Méndez, then UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, stated that PNG’s then purported use of hanging would result in cruel, inhuman or degrading treatment.[i]
In 2014, Christof Heyns, then UN Special Rapporteur on extrajudicial, summary or arbitrary executions, stated that the death penalty in PNG provided a “false sense of security” which “divert[s] attention away from effective long-term solutions such as better policing, economic development, robust correctional institutions and education,” and that he was, “informed of shortcomings” in fair trial standards and violations including “extraction of confessions under duress, ill-treatment of persons in custody, lengthy proceedings, or high levels of corruption among various authorities.”[ii]
The Universal Periodic Review
The views of the Special Rapporteurs have been reinforced through the wider perspectives of the Governments participating in PNG’s Universal Periodic Review (UPR). The UPR is a state-driven process under the auspices of the UN Human Rights Council, in which all states’ human rights records are reviewed during a cycle of 4.5 years. PNG’s first and second cycle National Reports did not engage with the death penalty, even though death sentences were imposed during the review periods.
On 1 November 2021, in the third cycle National Report, the government noted that it retains the death penalty as an example of state prerogative and that:
The death penalty is prescribed for several serious offences including; Piracy, Treason, Willful Murder on account of Accusation of Sorcery and Rape, however since the introduction of the death penalty, there have been no executions as the National Executive Council is yet to determine the method of execution and set up the administrative and physical facilities to enforce it.[iii]
Over the UPR’s three cycles, the formal recommendations received by PNG demonstrate a call for an incremental removal of the punishment from national law, through:
a) endorsing the de facto abolitionist position by establishing an official moratorium;
b) amend national law for de jure abolition; and,
c) affirm abolition at the international level through ratification of the Second Optional Protocol to the ICCPR.
In the third cycle, the Joint Submission of the UN Country Team recommended that PNG “[m]aintain the moratorium on the death penalty and ratify the [Second Optional Protocol to the International Covenant on Civil and Political Rights] with a view to abolish it de jure.”
In the UPR, governments have also made recommendations for PNG to establish a National Human Rights Commission in accordance with the Paris Principles. Such a Commission could provide an important mechanism for the safeguarding of human rights, and advise the government on the amendment process for abolition.
PNG have previously raised financial challenges as a justification for the country’s inability to fully comply with UN treaty body reviews. The first cycle report conceded that “[i]n PNG, lack of capacity exists at all levels of government,”[iv] while the second cycle stated that the “PNG Government invites the international community to consider providing technical and financial assistance,”[v] and reemphasised the capacity issue in that, “due to resource limitation the Government is not able to implement and report [to the UN treaty bodies].”[vi]
It is hoped that the UN will provide this needed support, which has been requested in the UPR and by the UN Special Procedures, as it would help to solidify the national impetus to promote human rights generally, and specifically for the abolition of the death penalty.
The Scientific Benefit of Abolition
PNG should consider adopting the UPR recommendations in an expression of mutual reinforcement of commitments to promote the Sustainable Development Goals (SDGs). The human rights values expressed in both the UPR and the SDGs can be woven together to promote policy coherence. SDG 16 provides for ‘Strong Institutions and Access to Justice and Build Effective Institutions,’ but the application of the death penalty is inconsistent with this goal.
Of course, the PNG executive and courts want to create a society in which all people can flourish and live in safety. The positive processes to create such a society, however, do not include the death penalty. This punishment is not part of the solution, and in fact it never was and never will be. Roger Hood and Carolyn Hoyle have cogently explained:
[t]hose who favour capital punishment ‘in principle’ have been faced with yet more convincing evidence of the abuses, discrimination, mistakes, and inhumanity that appear inevitably to accompany it in practice. Some of them have set out on a quest to find the key to a ‘perfect’ system in which no mistakes or injustices will occur. In our view, this quest is chimerical.[vii]
Reflecting Hood and Hoyle’s argument, PNG’s domestic and international conversations on the death penalty must be informed by the fact that its people have the right to benefit from the progress of social science research. Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone “[t]o enjoy the benefits of scientific progress and its applications.” The UN Special Rapporteur on cultural rights has affirmed:
The right to enjoy scientific progress and its application covers all sciences: life, physical, behavioural and social, as well as engaging with the health professions.
Social science investigations now demonstrate that reflecting appropriate government means that whilst capital punishment could be ‘created’ within a legitimate parliamentary process, it is clear that the ‘application’ of the death penalty renders an illegitimate and inhumane outcome. The death penalty cannot be a justifiable part of a government’s regulation, control and punishment of its people. Removing this punishment will not have a detrimental political impact upon PNG. It should be viewed as a significant moral achievement if the government takes this important step to fully join the abolitionist community. It is now time to remove this brutalising punishment from the people of PNG once and for all.
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.
[v] ibid, para 104.