By PNG Echo
No pregnant mother in PNG can ever again be accused of the draconian charge of ‘killing an unborn baby’ under section 312 of the criminal code – an offense that carries a maximum sentence of life imprisonment – all thanks to a judgment of the Supreme Court this week.
Ostensibly, this court, with a three-person bench of Justices Gavara-Nanu, David and Lindsay, has differentiated, at least to a degree, the difference between abortion and murder – although, it could have gone further.
Let me explain:
The case in Buka
On 6 October, 2015, the National Court in Buka convicted a young mother of ‘killing her unborn child’.
What the young, distressed mother had actually done was to terminate an early to mid-term pregnancy with the help of her husband and a Community Health Worker.
The conviction sent shock waves through various women’s groups and gained international attention. It was rightly seen as draconian – the available sentence impossibly harsh.
It was not only about the injustice to this young mother (although that too) – because it’s true that the sitting Judge, Sir Kina Bona, seemed sympathetic to her plight and while returning a finding of ‘guilty’, he did not impose a heavy sentence giving her 4 years imprisonment with 3 of them suspended – it was just that he had created a precedent – and a dangerous one at that.
At the time Justice Bona had been sitting on the bench (National and Supreme Courts) for less than a year and the case had been muddied when the defendant, with advice from her lawyer, pleaded guilty. It would seem to have given the learned judge little leeway.
It is a problem when judgments are single-judge based (ie no juries) but that’s a discussion for another day.
Precedents
To understand how dangerous this judgment was (how it then stood) one must understand ‘precedents’.
In order to create a measure of certainty, courts must be consistent.
Therefore, should this judgment not have been quashed by the Supreme Court this week then any other woman who procured an abortion – no matter the circumstances (are there any circumstances that would make abortion legal in PNG?) could be charged with ‘killing an unborn baby’ and face lifetime imprisonment and, as the precedent was in the jurisdiction of the PNG Courts, the new trial judge would be obliged to follow suit – no choice.
Perhaps the next judge would not have the compassion of Sir Kina Bona. Under these circumstances, the possible consequences for PNG women would have been far-reaching.
The Supreme Court rectified…
However, this week, the Supreme Court overturned the National Court ruling finding that what this pregnant mother was charged with (under section 312 of the criminal code ) was not applicable. The section did not apply to a pregnant mother, under the particular circumstances present.
There is, however, a section of the criminal code (Section 225) that deals with pregnancy termination – this section carries a maximum seven year sentence if found guilty – a far cry from life imprisonment.
So, according to the Supreme Court of Papua New Guinea, she had not ‘killed an unborn baby’ she had, allegedly, procured an abortion and that’s very different.
…But not everything
One other important ground that Desmond Kipa of Twivey lawyers was ready to present to the court and argue was that the National Court Judge had not made a proper finding of whether the foetus was a human being capable of being killed, especially as the aborted foetus weighed no more than 100 grams when expelled. How can you kill something that isn’t living?
It is the perennial question of when life starts.
With the judgment overturned on another ground, the court saw no need to consider the matter further.
This is a shame because, although there were some past cases to which Mr Kipa was prepared to refer, a current Supreme Court ruling on the matter of when life begins would make things a lot clearer for future cases – for now the waters remain muddy.
Traversing the minefield
The law on abortion and the high emotions which abortion evokes is a minefield on which many women are forced to go dancing – never gladly. At least, with this ruling, the Supreme Court has given her some steel capped boots for protection.
