Capital punishment in Papua New Guinea

Capital punishment is not a legal punishment in the Independent State of Papua New Guinea.

Capital punishment was abolished on 22 January 2022.[1] It was legal under Australian colonial rule, but was abolished in 1970 in the leadup to independence. It was reinstated in 1991, but never used. The last execution was by hanging, in Port Moresby, in November 1954.[2][3]

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.[4] 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"[5] 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.[6]

In August 1991, the Government of PNG re-introduced capital punishment as an amendment to the PNG Criminal Code Act 1974.[7] At this point its application was limited to cases of wilful murder,[8] but the imposition of the death penalty would not be mandatory and therefore be "at the discretion of the Judge."[9] 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"[10] 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.[11] 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.[12] 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."[13]

In 2010, Manfred Nowak undertook a comprehensive review of PNG's use of "torture and other cruel, inhuman or degrading treatment or punishment"[14] 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,[15] 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.[16] Due to the failed deterrence of criminal offences following the 1991 Criminal Code amendment, the government subsequently passed another amendment to the Criminal Code.[17] Under earlier versions of the PNG Criminal Code, offences of treason, piracy and attempted piracy were also punishable by death.[18] 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[19] 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."[20] The amendments came into force on 18 September 2013.[21]

Recent events

In 2014, it was indicated that the state was moving to use capital punishment since its reintroduction in 1991 and widening in 2013. The Constitutional Law Reform Commission discussed capital punishment in a public forum which was held in 11/2014,[22] following the report given to the government on preferred methods.

On 5 February 2015, the Secretary of the Department of Justice and Attorney General, Lawrence Kalinoe, indicated that there were 13 people on death row. All had exhausted their appeals and were set to be executed that year.[23] Kalinoe also confirmed that the government had "approved an interagency committee to oversee the implementation of capital punishment."[24] A new facility was planned at Bomana Prison in Port Moresby to carry out the executions of the prisoners.[25]

On 12 January 2022, Prime Minister James Marape announced plans to abolish capital punishment.[26] The Capital Punishment Act was repealed on 20 January 2022, and all sentenced prisoners had their death sentences commuted to life imprisonment.[27]

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"[28] 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.[29] 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.[30]

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"[31] 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."[32] Or further, clarify when "extenuating circumstances"[33] are relevant. Finally, the PNG Supreme Court concluded with situations in which the imposition of the death penalty would be more appropriate;[34]

  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

The primary method of capital punishment was hanging. While precise statistics of all cases are unknown, it is known that "at least 67 people were executed by hanging" [35] 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 lethal injection, gas inhalation,[36] firing squad, and electrocution,[37] in addition to hanging. With the addition of the four alternative methods, the commission was required to report the best and most appropriate method.[38] The commission travelled to the United States, Malaysia, Indonesia, Thailand and Singapore "in order to provide advice to the government on what methods of execution should be adopted".[39]

Following the report by the commission, the Cabinet endorsed hanging, firing squad, and lethal injection as appropriate methods. One of these three methods would have been used if an offence punishable by death was committed and a sentence of death was imposed.[40]

Exceptions

There were three situations in which a sentence of capital punishment would have been rejected: minors at the time the offence was committed; pregnant women; and mentally ill persons.

Juveniles

If a person under the age of 18 committed a criminal offence that was punishable by death, they would not have been executed.[41] PNG ratified the ICCPR[42] and the Convention on the Rights of the Child (CRC),[43] both of which are international instruments that prohibit the execution of a person under 18.[44]

Pregnant women

Pregnant women would not have been executed during or after pregnancy for the crime sentenced for.

Mentally ill persons

A person with the incapacity to understand or control their actions would not have been liable for a criminal offence they committed. Also, persons who committed offences due to delusions would have only been "held liable insofar as the delusion would support criminal liability if it were true."[45]

The state is governed by a mixture of national and international legislation.

National

PNG had 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) were at the front of the law. Imposing capital punishment for murder in PNG was prescribed in section 299(2) of the Criminal Code Act 1974 and was validated by the country's constitution. The right to life provision stated "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".[46] The provision concerning the freedom from inhuman treatment confirmed that the killing of a person under section 35(1)(a) did not contravene section 36(1).[47]

International

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

See also

Further reading

References
  1. "Papua New Guinea repeals death penalty 30 years after reintroduction". Guardian. 21 January 2022. Retrieved 21 January 2022.
  2. Amnesty USA "Urgent Action: Papua New Guinea plans for executions" (4 June 2013) <http://www.amnestyusa.org/sites/default/files/uaa13513.pdf>.
  3. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  4. Amnesty International "Papua New Guinea - The state as killer?" (April 2004) <https://archive.org/details/Asa340012004en>.
  5. 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>.
  6. Author Unknown "Papua New Guinea: History" (28 April 2015) <http://thecommonwealth.org/our-member-countries/papua-new-guinea/history>.
  7. Papua New Guinea, Criminal Code Act 1974, section 299(2).
  8. 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 4 March 2016 at the Wayback Machine>.
  9. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  10. Author Unknown "Death Penalty Plan for PNG" The Canberra Times (Australia, 25 March 1991) at 16.
  11. Author Unknown "Death Penalty Plan for PNG" The Canberra Times (Australia, 25 March 1991).
  12. Author Unknown "Death Penalty Plan for PNG" The Canberra Times (Australia, 25 March 1991).
  13. Amnesty International "Papua New Guinea - The death penalty: Not the solution" (February 1996) at 1.
  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. 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>.
  16. 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>.
  17. Papua New Guinea, Criminal Code (Amendment) Act (No. 6) 2013.
  18. Papua New Guinea, Criminal Code Act 1974, sections 37, 81, 82.
  19. Papua New Guinea, Sorcery Act 1971.
  20. 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>.
  21. Papua New Guinea, Criminal Code (Amendment) Act (No. 6) 2013.
  22. Cedric Pajole "Forum to discuss death penalty today" Papua New Guinea Loop (Papua New Guinea, 13 November 2014)<>.
  23. 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>.
  24. 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>.
  25. 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>.
  26. "PNG government abolishing death penalty". 7News. 12 January 2022. Retrieved 13 January 2022.
  27. "Death Penalty Act Repealed". Papua New Guinea Post-Courier. 21 January 2022. Retrieved 21 January 2022.
  28. Amnesty International "Papua New Guinea - The state as killer?" (April 2004) <https://archive.org/details/Asa340012004en>.
  29. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  30. 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>.
  31. Ume v The State [2006] SC 836 at [68].
  32. Ume v The State [2006] SC 836 at [67].
  33. Ume v The State [2006] SC 836 at [21].
  34. Ume v The State [2006] SC 836 at [67].
  35. Amnesty International "Papua New Guinea - The state as killer?" (April 2004) <https://archive.org/details/Asa340012004en>.
  36. 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>.
  37. Papua New Guinea, Criminal Code (Amendment) Act (No. 6) 2013, section 614.
  38. 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>.
  39. 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>.
  40. 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>.
  41. Papua New Guinea, Criminal Code Act 1974.
  42. International Covenant on Civil and Political Rights 1966.
  43. Convention on the Rights of the Child 1989, article 37(a).
  44. Cornell University "Death Penalty Worldwide Papua New Guinea" (23 January 2011) <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Papua+New+Guinea>.
  45. 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>.
  46. Constitution of the Independent State of Papua New Guinea, section 35(1)(a).
  47. Constitution of the Independent State of Papua New Guinea, section 36(1).
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