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VII. The Roles of Other Government Bodies

Government mechanisms external to the police that might hold accountable officers who beat, torture, and rape, and provide victims with redress are difficult for victims to gain access to and are often ineffective when they do. Judges often ignore abuse even when the wounds are fresh and plainly visible. The public solicitor’s office and ombudsman’s commission are overwhelmed with other cases and have little capacity to investigate reports of police abuse. Access to civil redress is hampered by burdensome procedural barriers.There are periodic initiatives to create a national human rights commission, but these efforts have stalled in Parliament.

The Judiciary

Judges bear a share of the responsibility for addressing police violence and monitoring conditions under which children are detained. The Juvenile Court Protocol for Magistrates requires judges to “monitor the use of physical force used against a juvenile.”³⁷⁴  At the very minimum, magistrates should exclude evidence obtained through threats or actual violence: the Evidence Act provides that confessions induced by threats shall not be received into evidence.³⁷⁵

Many of the injuries children described, particularly on the face, should be obvious to the magistrates they appear before. For example, Edmund P., age fifteen, told Human Rights Watch that when he went before a judge five days after his arrest, he had a scraped and blackened eye, a sliced pinky, and cuts on his head from the police, but the judge did not ask him about his injuries.³⁷⁶ (As described above, Human Rights Watch researchers saw obvious bruising, redness, and scabs around Edmund P.’s eye and other injuries roughly two weeks after his arrest.) Elias C., age twelve, said that he had a black eye when we went before a judge.³⁷⁷ Some children said they had even told a judge that they had been beaten and that the judge did not respond. For example, Nelson R., age fourteen, said, “When I saw the magistrate [at Boroko], my eye was swollen and black. I told him that the police hit me.”³⁷⁸

Although not a child, a man described his interaction with a judge in 2002 in terms that show the larger problem:

I saw the judge one week later, after I spent one week in Bomona. There were still marks in my face. The judge asked me why I had marks. I told the judge I was beaten. The judge asked me questions; he asked whether I did the crime. I said no. The judge said that most people are beaten up by the police because they did the crime. “Everyone is beaten because of the crime they commit,” he said. The way I took it, every person arrested has to be beaten by the police because it’s something that’s done. The judge asked the inspector. The inspector read out the crime [I was charged with] and said that’s the reason I got beaten up.

After a year, the man was found not guilty and set free.³⁷⁹

Judges are also required to visit prisons to inspect general conditions and to determine whether children are being detained illegally or mistreated.³⁸⁰ However, visits have reportedly become increasingly infrequent and have never included police lockups.³⁸¹  In April 2005, a National Court judge reportedly criticized the prolonged detention of remandees in police cells.³⁸²

The Ombudsman’s Commission

The ombudsman’s commission is highly regarded and widely viewed as one of the more effective government bodies. However, at present it focuses on official corruptionand lacks the capacity to investigate and pursue actions against the police.

The Constitution and the Organic Law on the Ombudsman Commission empower the commission to investigate, either on its own initiative or on an individual complaint, conduct by a state service or its members, including the violation of basic rights.³⁸³ During the course of its investigations, the commission can require the production of documents and summon individuals to testify under oath.³⁸⁴ The commission can then report its findings and recommend action to the relevant government minister and require the minister to report back on implementation of the commission’s recommendations, or it can refer the matter to the public prosecutor.³⁸⁵ In practice, the commission refers almost all allegations of crimes by police back to police at the local level: “Beatings by police, rape by police, abduction—these are matters that are dealt with by the police at the local level,” explained Peter Peraki, an official in the commission’s office.³⁸⁶

In 2004, the commission dedicated two staff persons to form a human rights unit, which pulled four police violence cases from the files on which to focus.³⁸⁷ In May 2005, the Anti-Discrimination and Human Rights Unit was established in the Ombudsman Commission, funded by the U.N. Development Program (UNDP). The unit focuses on providing advice regarding the proposed human rights commission, building capacity within the Ombudsman Commission, human rights campaigning, and strengthening the Commission’s partnership with civil society.³⁸⁸ The unit does not handle individual cases and transferred the four cases mentioned above, and three others, to a different unit within the Commission. According to a staff member of the unit, investigations in these cases had not been concluded as of July 2005.³⁸⁹

The Office of the Public Solicitor

The public solicitor’s office is intended to provide legal advice and representation in court for those with financial need. In practice, the office lacks the resources to provide representation to many who need it. Many of the children whom we interviewed were unrepresented in court, even when charged with serious crimes.

Most lawyers in the public solicitor’s office “don’t really have time for other cases,” such as bringing claims against the state for police abuses, Isar Watta, an attorney for the office told us. Since September 2002, she explained, the office has had two lawyers “dealing with human rights matters,” including constitutional breaches, most of which are perpetrated by the police.³⁹⁰ While the office helps those who approach it to litigate, they “aren’t able to do a lot of awareness-raising because of time limitations.” The office settled a case on behalf of about thirty street vendors whose property police confiscated in 2001 on instructions by the National Capital District Constabulary, and has had a number of cases involving “youths in the streets” between the ages of sixteen and twenty-five “who are suspected of being raskols, criminals. The police take them in and beat them, then they don’t take them to the hospital.” Although, Watta said, she was aware of complaints of ill-treatment of men who have sex with men, no one had come to the office to complain.³⁹¹

Watta said the most significant barriers to successfully litigating claims against the state were a backlog of human rights cases in the courts and the requirement that notice of a claim be served on the state within six months of the event that triggered the claim.³⁹² Procedural barriers are further discussed in the following section.

Civil Claims Against the State

By law, individuals who have suffered violations of their constitutional rightsmay bring claims against the state for damages and compensation. Of all claims, around half stem from police action, such as destruction of house and property and physical violence.³⁹³ More than two hundred police claims have been settled since the Solicitor General’s office was established in 1992, Mrs. Hithelai, an attorney in the solicitor general’s office told us.³⁹⁴ Although Hithelai would not tell us what these cases have cost the state, according to news reports they have totaled around K 300 million (U.S.$96.3 million)—more than twice the annual budget for the police department.³⁹⁵Moreover, Hithelai explained, 2,613 outstanding claims against the state for acts by the police were still pending in October 2004.³⁹⁶

Despite the significant burdens civil claims place on the state, civil claims fail to provide an adequate remedy for many victims because procedural barriers prevent many from pursuing claims. Where victims are able to bring claims, these fail to deter future police violence because the police force and individual officers are not penalized.

Procedural Barriers to Victim’s Claims

Victims of police violence face a number of procedural barriers to pursuing claims against the state. These include requirements that plaintiffs personally serve officials in the capital and name individual officers, and delays in adjudication and payment of successful or settled claims.

First, notice of claims against the state must be given within six months.³⁹⁷ “If a person has been assaulted by the police or had their rights violated, section 5 governs the notice of claim. Notice has to be given within six months after the occurrence,” said Hithelai.³⁹⁸

The next hurdle is that claims must be personally served on one of several government officials in Port Moresby; service by mail is not accepted.³⁹⁹ “There is no standard form. They can just write a letter and have it personally served on the Attorney General or solicitor general, or their personal secretaries,” Hithelai said. “If personal service is made, our lawyers will acknowledge [the notice] and get instructions. We seek instructions from police officers.”⁴⁰⁰ Our researcher asked whether there were any alternative forms of service for the many potential claimants who do not live in Port Moresby. “It’s not possible to serve in any other manner,” Hithelai replied. “Some send a letter by post. Then it is not personally served.”⁴⁰¹ Nevertheless, she conceded, “There are occasions where the notice was given by post, and we’ve let it go,”⁴⁰² meaning that the government has not raised the issue of service in defending the case. However, Eastern Highlands National Court acting register Philip Kaumba told reported in March 2005 that courts have struck out many claims against the state for failure to personally serve notice on the Solicitor General in Port Moresby.⁴⁰³  From most parts of the country, Port Moresby is not accessible by road.

Even if a claimant files notice within six months and personally serves an appropriate official, the government does not consider the notice to be sufficient unless it names individual police officers. When the Individual and Community Rights Advocacy Forum (ICRAF) brought a case on behalf of women arrested in the March 2004 Three-Mile guesthouse raid, for example, “We received a letter saying that we needed to find out ‘who and which policemen were supposedly involved,’” Lady Hilan Los told Human Rights Watch.⁴⁰⁴

Hithelai confirmed that her office viewed the naming of individual officers as “very necessary’” she replied. At least some courts have agreed with the solicitor general’s office on this point. A National Court judge in Waigani found, for instance, that section 5 notice requires “sufficient details”:

such details should include dates, times, names of people and places, copies of any correspondence or such other information that could enable the state to carry out its own investigation. Only when notice is given with such details or information can one surely say that notice of his or her intended claim has been given.⁴⁰⁵

When a Human Rights Watch researcher pointed out that many people said that police officers do not wear name tags, Hithelai said, “They should wear name tags.”⁴⁰⁶ (The 2004 administrative review of police also recommended that police be required to wear their names and regimental number on their uniforms and carry an identification card.)

In practice, these procedural requirements preclude many well-founded suits. In response, the public solicitor’s office has contended that section 5 of the Claims By and Against the State Act should not apply to suits that are brought to enforce fundamental rights and freedoms guaranteed by the Constitution. Isar Watta of the public solicitor’s office told us, “We have had several run-ins with the state lawyers where the client is enforcing constitutional rights. Section 5 is not applicable in such cases. It should not limit a person’s right to enforce his or her constitutional rights. The state lawyers have rejected that [argument].”⁴⁰⁷ On its face, the Claims By and Against the State Act appears to apply even to constitutional claims alleging violations of fundamental rights and freedoms. Section 2(2) of the act provides:

The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for the infringement of a right or freedom under section 58 (Compensation) of the Constitution.

Even so, Hithelai suggested that her office would be prepared to accept the public solicitor’s position. “With section 58 [of the Constitution], section 5 should not apply,” she said. “We need to clarify that, but generally the courts have not enforced” the requirements of section 5 in such suits. “We don’t enforce section 5 in a section 57 application,” she concluded.⁴⁰⁸

An additional hurdle is that cases against police are subject to considerable delay in the courts. “The problem is that for about the last five years, the courts have not had time to hear these human rights cases,” said Isar Watta. “A while back I wrote to the registrar asking for the cases to be listed [put on the court’s schedule to be heard]. . . . We’ve been asking since last year,” she told Human Rights Watch.⁴⁰⁹

Finally, if a claimant wins or reaches a settlement, he or she may face a considerable wait before the state pays the claim.⁴¹⁰ “It takes a while,” Hithelai conceded. “I don’t control that. Some people wait quite a bit of time. Sometimes it may take years. Others wait weeks or months.”⁴¹¹

As in most countries, successful claimants cannot ask the court to seize state property to satisfy the judgment.⁴¹² “You can’t garnish the state,” Hithelai explained. In the case of a judgment or a settlement, she said, “We put in a request to finance the amount. If the state doesn’t pay, you still can’t garnish it.”⁴¹³ Ms. Watta described the problems her office encountered in enforcing a claim in a 2001 case in which police harassed some thirty street vendors. “The case was settled and orders made, but fair payment was not made,” she said. “The problem is that you cannot enforce court orders against the state. Section 13 provides that there is no execution against the state.”⁴¹⁴

We asked Hithelai whether any other means of enforcement was available to claimants—for example, whether claimants could seek contempt orders against government officials for their failure to satisfy a judgment or pay a settlement. “We have had contempt proceedings,” she said. “If the state doesn’t have the money legally available, people have gone to court.” She characterized the decisions as “mixed. Some said yes; others no. The state may have to pay by installment.”⁴¹⁵

The Failure to Deter Police Violence

The Solicitor Generaldefends the state against civil claims, and successful claims are paid by the Treasury. Neither the police force nor individual officers bear any cost.⁴¹⁶ “The court awards damages. If damages are awarded against the state, it’s the state that carries the bulk of the liability, not the individuals, not the police commander. It’s the state and the people that suffer,” Hithelai told Human Rights Watch.⁴¹⁷ With no personal financial incentives to participate and apparently insufficiently strict internal police requirements that they do so, police often do not cooperate with the Solicitor General’s office in defending the case and the state loses.⁴¹⁸

The fact that police do not cooperate also creates an incentive for individuals to file false claims.⁴¹⁹ Kirsten Bishop of AusAID, which is providing technical assistance to the government in this area,explained that the Solicitor General’s office “ends up settling cases because they lack information and evidence. So people in the community know this happens and a lot of claims are fraudulent. This undermines the process and genuine claims.”⁴²⁰ “Claims are being settled out of court in the millions. Everybody is looking at some alleged abuse now,” Peter Peraki of the office of the Ombudsman’s Commission told Human Rights Watch.⁴²¹

The government and international donors should ensure that any measures to reduce the amount paid in civil claims do not create additional impediments to legitimate claims; seek ways to make civil claims serve as a deterrent to police violence; and otherwise prioritize reducing police abuses that produce these claims.⁴²²