The PNG Parliament abolishes the death penalty for the second time

The PNG Parliament abolishes the death penalty for the second time

Moses Sakai | 27 January 2022

On 20 January 2022, the Papua New Guinea (PNG) Parliament repealed the death penalty through the Criminal Code (Amendment) Act Bill 2022, replacing it with life imprisonment (both with and without parole). This is the second time the PNG Parliament has repealed the death penalty: the death penalty was abolished for ordinary crimes in 1974, but it was reintroduced through the Criminal Code Amendment Act 1991.

A colonial legacy: introduction and abolition of the death penalty

The history of the death penalty in PNG’s Criminal Code goes as far back as 1884, when the country was first annexed and colonised by Germany and Britain. The two Territories (Papua and New Guinea, respectively) were then colonised by Australia after the First World War, until political independence was attained in 1975. Although laws on the death penalty were applied in both Territories between 1884 and 1905, capital punishment was first formally introduced in Papua through the adoption of the Criminal Code of Queensland 1899, based on the Criminal Code Ordinance of 1902. The same Criminal Code was later adopted in New Guinea in 1921 after it became a mandated territory based on the Laws Repeal and Adopting Ordinance of 1921. According to the Code, the death penalty was mandatory for all capital offences upon conviction. This Code was used following the joint administration of the two Territories between 1949 and 1974, and despite several amendments during this period, the mandatory death penalty remained unchanged.

The last execution carried out in Papua New Guinea took place in 1954, when a convicted murderer was hanged. However, the courts continued meting out death sentences until 1971, when the last person sentenced to death successfully appealed against the sentence and received life imprisonment on the basis of extenuating circumstances. In 1973, Papua New Guinea was granted self-governance, and the late Michael Somare became the Chief Minister. That same year, a Law Reform Committee was established by the self-governing members of the Third House of Assembly to draft a new Criminal Code for PNG. The new Criminal Code of PNG was adopted in 1974, and was retained after PNG’s independence in 1975. According to the new Code, all capital offenses were repealed and replaced with life imprisonment based on the recommendation by the Law Reform Committee on two grounds. First, the death penalty had not proven effective in deterring capital crimes; second, there were problems defining the meaning of ‘extenuating circumstances’. PNG’s abolition of the death penalty may have also been influenced by Australia, who abolished the death penalty federally in 1973 while still colonising PNG.

A step backward: reintroduction of the death penalty

Due to a perceived increase in violent crimes, PNG reinstated the death penalty for capital crimes in 1991 to act as a deterrent. This time, the death penalty was not mandatory; rather, it was available at the discretion of the judge. The reinstatement of the death penalty was strongly opposed by the wider public including prominent political figures on various reasons. In response to such outcry, the then Justice Minister Bernard Narokobi, who was also the chairman of the Law Reform Committee in 1974, declared that although he opposes the death penalty, the death penalty had been reintroduced in response to the community’s ‘outrage and disgust’ toward violent crime. Sir Peter Barter, a senior minister at the time, opposed the death penalty based on the lack of prior research and public consultation, while the late Sir Michael Somare and Supreme Court Judge Sir Buri Kidu justified their opposition on the basis that the death penalty was not the right measure to address law and order issues.

At the time of parliamentary voting, only 48 MPs voted in favour of passing the Bill, while 19 voted against it and an overwhelming 42 MPs were absent. However, despite long-standing opposition to the death penalty, the courts had continued to impose death sentences since 1995. As a result of a perceived increase in killings related to sorcery accusations, Parliament amended the Criminal Code (Amendment) Act (No.6) in 2013, making sorcery accusation murder a capital crime.

It was at that point that the government gave serious attention to the implementation of the death penalty. In 2013, the Government sent a team led by the Chief Secretary on a fact-finding tour to the United States, Thailand, Malaysia, Singapore, and Indonesia to seek appropriate modes of execution that could be applied in PNG. In 2014, a Committee made up of key government agencies was established to oversee the implementation of the death penalty. The tour team, which cost US$600,000 (K2million), also submitted their final report entitled ‘Implementing the death penalty in PNG’ for approval, but got rejected seven times by the National Executive Council (NEC, PNG’s cabinet) despite the fact that guidelines for the implementation of the death penalty recommending hanging, lethal injection and firing squad as modes of execution had already been approved. However, the implementation of the death penalty could not proceed due to lack of infrastructure within the existing prison. In 2016, the Government secured 27 hectares of land on an isolated island in Manus province to build a stand-alone facility for high-risk offenders and death row inmates. There is no information as to whether the prison has been built or not.

“Thou shalt not kill”: renewed impetus to repeal the death penalty

On 30 July 2021, the Supreme Court quashed the temporary staying order of the National Court, which had had the effect of preventing the execution of those 12 persons currently on death row. The decision immediately prompted the government to announce the establishment of the Advisory Committee on the Power of Mercy (ACPM) – a quasi-judicial body recognised under section 152 of PNG’s National Constitution that would thoroughly review appeals made by death row inmates and determine whether to grant them mercy or not. While members of the ACPM are yet to be appointed, Prime Minister James Marape stated at the opening of PNG’s National Lutheran Church 33rd Synod in Port Moresby on 11 January 2022 that the government would end the death penalty based on the Old Testament’s ‘thou shalt not kill’ principle. This announcement appeared on the front page of The National newspaper the following day.

After 30 years without implementation following their reinstatement in 1991, the death penalty provisions in the Criminal Code were repealed by Parliament on 20 January 2022. According to Justice Minister Bryan Kramer, the amendment was made on two grounds: first, that the death penalty has not proven effective in deterring violent crimes, and second, that PNG lacks the necessary administrative mechanism and infrastructure to implement the death penalty. In commending the passing of the Bill, Prime Minister Marape stated that although some would favour the death penalty as a form of retribution based on the principle of ‘eye for an eye’ or ‘tooth for a tooth’, it would be unchristian to have it remain in PNG’s laws.

The future of the death penalty in PNG

PNG still has a very serious law and order issue. This suggests that reintroduction of the death penalty by a future government is entirely possible especially for deterrence purpose. But even if the death penalty is reinstated for the third time, implementation is highly unlikely because of the ‘payback’ system entrenched within PNG’s diverse culture. This is the most likely reason why 42 MPs, including former Prime Minister Julius Chan, were absent at the time of parliamentary voting in 1991 to reinstate the death penalty. Indeed, the then Deputy Chief Justice Mari Kapi stated that, due to the threat of payback, ‘I would have to seriously consider resigning my position as a judge’ if confronted with the legal necessity of sentencing someone to death. Despite an expensive tour mission in US and Asia, the State could not execute those on death row out of fear of retaliation or an escalation of violence. Accordingly, some death row inmates have spent almost two decades awaiting execution, which according to international law is a violation of their human rights.

As a matter of fact, this is the second abolition of the death penalty in PNG. The question now is: will PNG ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (OP2-ICCPR) aiming at permanently abolishing the death penalty? Once a country ratifies OP2-ICCPR, the current and future governments of that State are prohibited from reintroducing the death penalty in its criminal laws. Is PNG ready to be part of the growing international community committed to the abolition of the death penalty?

Since the OP2-ICCPR came into force on 11 July 1991, 89 states have ratified it. Kazakhstan signed the Protocol on 23 September 2020, but is yet to ratify is into domestic law. PNG ratified the ICCPR – the core Convention – on 21 July 2008, along with other international human rights treaties. Since becoming a party to the ICCPR, PNG has participated in the three cycles of the Universal Periodic Review (UPR), submitting reports to the UN Human Rights Committee (UNHRC) on the progress and status of human rights in PNG in 2011, 2016 and 2021. PNG is expected to submit its fourth national report to the UNHRC in 2025, with abolition of the death penalty listed alongside the passing of the Family Protection (Amendment) Act Bill 2022 as key achievements.

To date, PNG has rejected the UNHRC’s recommendations to establish a moratorium on the use of the death penalty and allow its abolition. Also, since 2007, PNG has consistently abstained or voted against the UN General Assembly’s biennial resolutions calling for a moratorium on use of the death penalty. For almost two decades, PNG was classified among 28 countries as “abolitionist in practice”, meaning a country that has not executed anyone for the last decade despite retaining the death penalty in law.

PNG has already made the decision to join more than two thirds of the countries globally who have abolished the death penalty either in law or practice. PNG’s abolition also means that Tonga is the last Pacific Island country to retain the death penalty. To demonstrate its commitment to the abolitionist movement, PNG should start voting in favour of UNGA’s biennial moratorium resolution and start the process of ratifying the OP2-ICCPR.

Moses Sakai is a post-graduate student and tutor at the University of Papua New Guinea’s School of Business and Public Policy and a freelance writer.