Capital punishment in Papua New Guinea

In Papua New Guinea (PNG), also officially known as the Independent State of Papua New Guinea, capital punishment (also called the death penalty or execution) is a legal form of punishment. Despite its legality, capital punishment has not been imposed in PNG in over sixty years. The last known execution took place under the colonial administration of Australia.[1] The last execution is understood to have been done by way of hanging and took place in the capital city of PNG, Port Moresby, in November 1954.[2]

History

Within the Pacific Islands Forum, all countries (albeit not PNG) have either completely abolished capital punishment or have refrained from imposing it for numerous decades.[3] The use of capital punishment in PNG has fluctuated throughout history and has again become unsettled in recent years.

Since 1954, PNG appeared to have maintained a strong "long-standing de facto moratorium"[4] which was later passed into law. The complete abolishment of capital punishment occurred in 1970 whilst PNG was still under the colonial administration of Australia. However, in 1973, PNG took the first step towards becoming independent and began the process of self-governance. Two years later in 1975, Australia gave up its remaining powers over PNG, allowing the country to proceed to complete independence.[5]

In August 1991 the Government of PNG re-introduced capital punishment as an amendment to the PNG Criminal Code Act 1974.[6] At this point its application was limited to cases of wilful murder,[7] but the imposition of the death penalty would not be mandatory and therefore be "at the discretion of the Judge."[8] The re-introduction of capital punishment into legislation was greeted with a mixed response not only in PNG but throughout the world. The Government at the time justified its actions by arguing that it was aligning legislation to reflect public perception that there was a necessity to deter abhorrent behaviour. According to Bernard Narokobi (the Justice Minister at the time), "it reflected the community's outrage and disgust"[9] to heinous criminal offences. Despite his support for Papua New Guinean communities to express their views, Narokobi made it clear that he did not endorse the move towards the re-introduction of capital punishment.[10] However, the country's Prime Minister at the time, Rabbie Namaliu, argued that the alarming deterioration in the country's enforcement of law and order was a threat to the country's future and needed to be dealt with.[11] On the contrary, there was also strong opposition for the re-introduction of capital punishment. Amnesty International pleaded that PNG addressed the deterioration of law and order in other ways and declared that Amnesty International "opposed the death penalty in all cases on the grounds that it is a violation of the human right to life."[12]

In 2010, Manfred Nowak undertook a comprehensive review of PNG's use of "torture and other cruel, inhuman or degrading treatment or punishment"[13] and subsequently recommended that PNG took immediate steps to abolish the death penalty. Following this, Nowak also suggested that PNG become party to the International Covenant on Civil and Political Rights (the ICCPR) and ratify the second optional protocol,[14] aimed at abolishing the death penalty worldwide.

However, in May 2013 PNG took further steps to revive the use of capital punishment, simultaneously amending legislation to reflect harsher punishments for a variety of criminal offences.[15] Due to the failed deterrence of criminal offences following the 1991 Criminal Code amendment, the government subsequently passed another amendment to the Criminal Code.[16] Under earlier versions of the PNG Criminal Code, offences of treason, piracy and attempted piracy were also punishable by death.[17] In addition, the 2013 amendment allowed that aggravated rape and robbery, alongside wilful murder would be punishable by death. Concurrently, the Government repealed the Sorcery Act 1971[18] therefore making sorcery-related murder also punishable by death. The Prime Minister (past and present) Peter O'Neill stated "the proposed laws are tough, but they are necessary. We have to address a situation which is destroying our country."[19] The amendments came into force on 18 September 2013.[20]

Recent events

Throughout 2014, PNG's actions indicated that it was moving closer towards reinitiating capital punishment since its re-introduction in 1991 and broadened scope in 2013. The Constitutional Law Reform Commission (Commission) discussed the death penalty in a public forum which was held in November 2014[21] following the report given to the PNG Government on preferred execution methods.

On 5 February 2015 the Secretary of the Department of Justice and Attorney General of PNG, Lawrence Kalinoe indicated that there are currently 13 people on death row in PNG. All of whom have exhausted their appeals and will likely be executed this year.[22] Kalinoe also confirmed that the PNG government had "approved an interagency committee to oversee the implementation of the death penalty."[23] A new facility will be built at Bomana Prison in Port Moresby to accommodate the executions of the 13 people currently on death row.[24] Papua New Guinea and Tonga is one of last countries in Oceania to not have abolished the death penalty and is most likely to abolish it in the 2020s.

Cases

Charles Bougapa Ombusu

On 20 February 1995 Charles Bougapa Ombusu was the first person to be sentenced to death after PNG's re-introduction of capital punishment in 1991, following his supposed "fatal shooting of the father of a girl he had raped"[25] in Popondetta, Northern Province. Ombusu was later acquitted in April 1995. The Supreme Court found that Ombusu had acted in self-defence. Critics of capital punishment have raised concerns that this form of punishment risks executing innocent people.[26] Since 1995 other death sentences have been handed down, but no executions have been carried out due to an absence of regulations surrounding the appropriate process.[27]

Steven Loke Ume

On 2 December 1995, the three appellants were among a group of nine who abducted and brutally killed a woman. The trial judge deemed the facts of the case to accord with the worst kind of wilful murder and thus sentenced each of the appellants to death. The issue in the case on appeal was whether or not the trial judge had erred in reaching the conclusion of imposing the death sentence. The question was essentially whether or not there were "extenuating circumstances or mitigating factors which warranted lesser punishment"[28] than the death penalty. The PNG Supreme Court quashed the death sentences imposed on each appellant and concluded that without further guidance from legislation, "Parliament may wish to consider prescribing the types of aggravating circumstances in wilful murder cases which warrant the death penalty."[29] Or further, clarify when "extenuating circumstances"[30] are relevant. Finally, the PNG Supreme Court concluded with situations in which the imposition of the death penalty would be more appropriate;[31]

  1. The killing of a child, a young or old person, or a person under some disability needing protection;
  2. The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for fee who are killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. policeman, correctional officer, government officer, school teacher, church worker, company director or manager:
  3. The killing of a leader in government or the community, for political reasons;
  4. The killing of person in the course of committing other crimes perpetrated on the victim or other persons such as rape, robbery or theft;
  5. The killing for hire;
  6. The killing of two or more persons in the single act or series of acts;
  7. For an offence committed by a prisoner in detention or custody serving sentence for another serious offence of violence; or
  8. The prisoner has prior conviction(s) for murder offences.

Applying this case, prosecutors are to determine whether the death penalty is the appropriate sentence in light of the facts and circumstances of the particular case.

Methods of execution

The preferred method of capital punishment in New Guinea is hanging. Whilst precise statistics of all execution cases are unknown, it is known that "at least 67 people were executed by hanging" [32] under the colonial administration of Australia, the United Kingdom and Germany between World War I and World War II.

Following the 2013 amendment of the Criminal Code, the government introduced capital punishment by way of lethal injection, deprivation of oxygen ("medical" asphyxiation),[33] firing squad and electrocution[34] in addition to the pre-existing option of hanging. With the addition of four alternate methods of execution, the Commission was requested to report on the best method of execution and the most appropriate for PNG to utilise.[35] The Commission travelled to countries with experience in capital punishment: United States, Malaysia, Indonesia, Thailand and Singapore "in order to provide advice to the government on what methods of execution should be adopted."[36]

Following the report by the Commission, the PNG Cabinet endorsed hanging, firing squad and lethal injection as appropriate execution methods. One of these three methods would likely be used if an offence punishable by death is committed and a sentence of capital punishment is imposed.[37]

Exceptions

There are three situations in which a sentence of capital punishment may be adjusted or denied; individuals under 18 years of age at the time the offence was committed; pregnant women; and mentally ill persons.

Under 18 years of age

If a person under the age of 18 commits a criminal offence that is punishable by death, they will not be executed.[38] PNG has ratified the ICCPR[39] and the Convention on the Rights of the Child (CRC),[40] both of which are international instruments that prohibit the execution of a person under 18.[41]

Pregnant women

If a woman is pregnant or not, she will be executed if it is decided by law, authorities will not wait until birth of a child.

Mentally ill persons

A person with the incapacity to understand or control their actions will not be liable for a criminal offence which they have committed. Secondly a person who commits an offence due to a delusion will only be "held liable insofar as the delusion would support criminal liability if it were true."[42]

PNG is governed by a mixture of national and international laws and regulations.

National

PNG has two notable pieces of legislation concerning capital punishment. The Criminal Code Act 1974 and the Constitution of the Independent State of Papua New Guinea (Constitution) are at the forefront of the law. Imposing capital punishment for wilful murder in PNG is prescribed in section 299(2) of the Criminal Code Act 1974 and is validated by the country's constitution. The right to life provision states "no person shall be deprived of his life intentionally except...in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law”.[43] The provision concerning the freedom from inhuman treatment confirms that the killing of a person under section 35(1)(a) does not contravene section 36(1).[44] Therefore, confirming that imposing a sentence of capital punishment is legal in PNG.

International

The ICCPR and the CRC are fundamental human rights documents both of which PNG is a party to. On 21 July 2008, PNG ratified the ICCPR. However PNG is not party to the Second Optional Protocol to the International Covenant on Civil and Political Rights which is predominately aimed at abolishing the death penalty. In the same year, PNG abstained from the vote on the UN moratorium on the death penalty and went on to oppose a similar notion in 2011. PNG signed the CRC on 30 September 1990 and ratified it on 2 March 1993.

See also

Further reading

References
  1. Amnesty USA "Urgent Action: Papua New Guinea plans for executions" (4 June 2013) <http://www.amnestyusa.org/sites/default/files/uaa13513.pdf>.
  2. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  3. Amnesty International "Papua New Guinea - The state as killer?" (April 2004) <https://archive.org/details/Asa340012004en>.
  4. Rupert Colville "UN human rights office regrets Papua New Guinea's decision to resume death penalty" (31 May 2013) <http://www.un.org/apps/news/story.asp?NewsID=45049#.VT8Cu87E-Iw>.
  5. Author Unknown "Papua New Guinea: History" (28 April 2015) <http://thecommonwealth.org/our-member-countries/papua-new-guinea/history>.
  6. Papua New Guinea, Criminal Code Act 1974, section 299(2).
  7. Sinclair Dinnen Law and order in a weak state: Crime and politics in Papua New Guinea (University of Hawaii Press, Honolulu, 2001) <http://file93.meetbooks.org/pdf/law-and-order-in-a-weak-state-crime-and-politics-in-papua-new-guinea_1go39r.pdf Archived 2016-03-04 at the Wayback Machine>.
  8. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  9. Author Unknown "Death Penalty Plan for PNG" The Canberra Times (Australia, 25 March 1991) at 16.
  10. Author Unknown "Death Penalty Plan for PNG" The Canberra Times (Australia, 25 March 1991).
  11. Author Unknown "Death Penalty Plan for PNG" The Canberra Times (Australia, 25 March 1991).
  12. Amnesty International "Papua New Guinea - The death penalty: Not the solution" (February 1996) at 1.
  13. Manfred Nowak "UN Special Rapporteur on Torture represents preliminary findings on his Mission to Papua New Guinea" (25 May 2010) <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10058&LangID=E>.
  14. Manfred Nowak "UN Special Rapporteur on Torture represents preliminary findings on his Mission to Papua New Guinea" (25 May 2010) <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10058&LangID=E>.
  15. Liam Fox "PNG death penalty condemned as 'barbaric' by Amnesty International" (29 May 2013) <http://www.abc.net.au/news/2013-05-29/amnesty-international-slams-png-death-penalty-move/4719414>.
  16. Papua New Guinea, Criminal Code (Amendment) Act (No. 6) 2013.
  17. Papua New Guinea, Criminal Code Act 1974, sections 37, 81, 82.
  18. Papua New Guinea, Sorcery Act 1971.
  19. Palash Ghosh "Papua New Guinea seeks to resume death penalty in wake of horrific crime spree, but activists object" International Business Times (USA, 2 May 2013) <http://www.ibtimes.com/papua-new-guinea-seeks-resume-death-penalty-wake-horrific-crime-spree-activists-object-1233469>.
  20. Papua New Guinea, Criminal Code (Amendment) Act (No. 6) 2013.
  21. Cedric Pajole "Forum to discuss death penalty today" Papua New Guinea Loop (Papua New Guinea, 13 November 2014)<http://www.pngloop.com/2014/11/13/forum-discuss-death-penalty-today/%5B%5D>.
  22. Kelly Buchanan "Papua New Guinea: Cabinet Approves Guidelines for Implantation of the Death Penalty" (11 February 2015) <https://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205404303_text>.
  23. Author Unknown "Church leaders condemn PNG government's decision to implement the death penalty" Papua New Guinea Today (Papua New Guinea, 5 February 2015) <https://www.google.co.nz/search?client=safari&rls=en&q=Church+leaders+condemn+PNG+government's+decision+to+implement+the+death+penalty&ie=UTF-8&oe=UTF-8&gfe_rd=cr&ei=MrlAVfb_O6Lu8weA7IHQBA>.
  24. Johnny Blades "PNG's government adamant on death penalty implementation" Radio New Zealand News (New Zealand, 6 February 2015) <http://www.radionz.co.nz/international/pacific-news/265458/png's-government-adamant-on-death-penalty-implementation>.
  25. Amnesty International "Papua New Guinea - The state as killer?" (April 2004) <https://archive.org/details/Asa340012004en>.
  26. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  27. Liam Fox "PNG 'waiting for death penalty guidelines" Australian Broadcasting Corporation (Australia, 7 July 2009) <http://www.abc.net.au/news/2009-07-07/png-waiting-for-death-penalty-guidelines/1344918>.
  28. Ume v The State [2006] SC 836 at [68].
  29. Ume v The State [2006] SC 836 at [67].
  30. Ume v The State [2006] SC 836 at [21].
  31. Ume v The State [2006] SC 836 at [67].
  32. Amnesty International "Papua New Guinea - The state as killer?" (April 2004) <https://archive.org/details/Asa340012004en>.
  33. Rob Taylor "Papua New Guinea may review death penalty, Prime Minister says" Wall Street Journal (America, 10 March 2015) <https://www.wsj.com/articles/papua-new-guinea-may-review-death-penalty-prime-minister-says-1425954144>.
  34. Papua New Guinea, Criminal Code (Amendment) Act (No. 6) 2013, section 614.
  35. Jamie Tahana "PNG says executions will go ahead this year" (28 January 2014) <http://www.radionz.co.nz/international/programmes/datelinepacific/audio/2583779/png-says-executions-will-go-ahead-this-year>.
  36. Kelly Buchanan "Papua New Guinea: Cabinet Approves Guidelines for Implantation of the Death Penalty" (11 February 2015) <https://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205404303_text>.
  37. Kelly Buchanan "Papua New Guinea: Cabinet Approves Guidelines for Implantation of the Death Penalty" (11 February 2015) <https://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205404303_text>.
  38. Papua New Guinea, Criminal Code Act 1974.
  39. International Covenant on Civil and Political Rights 1966.
  40. Convention on the Rights of the Child 1989, article 37(a).
  41. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  42. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) at 3 <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  43. Constitution of the Independent State of Papua New Guinea, section 35(1)(a).
  44. Constitution of the Independent State of Papua New Guinea, section 36(1).
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