Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 June 2014
• Court: National Court
• Citation: (2014) N5651
• Docket Number: HRA NO 83 OF 2013
• Year: 2014
• Judgement Number: N5651

Full Title: HRA NO 83 OF 2013; In the matter of an Application for Enforcement of Human Rights pursuant to Section 57 of the Constitution; Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution and The Independent State of Papua New Guinea (2014) N5651

National Court: Cannings J

Judgment Delivered: 25 June 2014

N5651

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 83 OF 2013

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT

OF HUMAN RIGHTS PURSUANT TO

SECTION 57 OF THE CONSTITUTION

BY FRANCIS KAWAI KAUKE

Applicant

AND

COMMANDING OFFICER,

BEON CORRECTIONAL INSTITUTION

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Madang: Cannings J

2013: 5 December,

2014: 13 February, 24 April, 25 June

HUMAN RIGHTS – food and diet provided to detainees in correctional institution – application by detainee for enforcement of human rights.

CONSTITUTIONAL LAW – Basic Rights – Constitution, Section 57: enforcement of guaranteed rights and freedoms – Constitution, Section 37(1): right to the full protection of the law – Constitution, Section 37(17): persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

A prisoner brought an application for enforcement of his human rights, which he alleged were being breached by the Commanding Officer and the State who were not providing him with food that was adequate to maintain his health and well being. He claimed that as a prisoner he had a right to be protected against inhuman treatment and to be treated with humanity and respect for the inherent dignity of the human person and that the laws regulating correctional institutions gave effect to those rights by prescribing minimum nutritional requirements for food provided to detainees. He alleged that those rights were breached by his being provided with an unbalanced and non-nutritious diet: he and other detainees were with occasional exceptions provided with the same type of food every day and were rarely provided fruit, vegetables or dairy products as required by law. The respondents denied the allegations and asserted that no breach of human rights had been established.

Held:

(1) A detainee has fundamental human rights, which are conferred by the Constitution and must be adhered to and administered by all authorities in the criminal justice system.

(2) Those rights include the rights: not to be submitted to torture or treatment or punishment that is cruel or otherwise inhuman (s 36(1)), to the full protection of the law (s 37(1)), to be treated with humanity and with respect for the inherent dignity of the human person (s 37(17)) and to be protected against harsh or oppressive or otherwise proscribed acts (s 41(1)).

(3) The Correctional Service Act 1995 and the Correctional Service Regulation prescribe food and dietary requirements for detainees, which are minimum requirements that must be complied with in order to adhere to and administer the human rights of detainees.

(4) A detainee must be provided with food that is adequate to maintain his or her health and well being (Act, s 123(1)) and that satisfies minimal nutritional standards, in that food must be provided in prescribed amounts and proportions from five food groups: (a) protein, (b) staple, (c) fruit, (d) vegetables and (e) dairy (Regulation, s 70) in accordance with a monthly schedule of detainee meals authorised by the Commanding Officer of the correctional institution (Regulation, ss 69, 71).

(5) The allegations of the applicant are sustained by the evidence: the detainees are with occasional exceptions provided the same meals each day, which consist of food from groups (a) and (b), with no or negligible quantities from groups (c), (d) and (e). Further it appears that the Commanding Officer does not prepare a schedule of monthly detainee meals as required by the Regulation.

(6) The applicant proved that breaches of the human rights of himself and other detainees had been occurring in a systematic and unchecked manner, in that the failure of the Commanding Officer and the Correctional Service to comply with the minimal nutritional requirements of the Act and the Regulation meant that detainees were denied the full protection of the law, contrary to Section 37(1) of the Constitution.

(7) The breach of those requirements was not, however, so severe or committed in such bad faith as to conclude that the applicant was being treated inhumanely (s 36(1)), without humanity or respect for the inherent dignity of the human person (s 37(1)) or harshly or oppressively (s 41(1)).

(8) It was appropriate and necessary for the Court to make declarations and orders under Sections 57(1) and (3) of the Constitution to protect and enforce the human rights of the applicant and other detainees.

(9) Ordered: the Commanding Officer shall within 14 days prepare and file in these proceedings, for approval by the Court, a schedule of detainee meals for the month of August 2014 that is compliant with the food and nutritional requirements of the Act and the Regulation, and shall provide food to detainees in accordance with the schedule.

(10) Remarks: the Commanding Officer or the Commissioner of the Correctional Service is at liberty to apply to the Court for orders under Sections 57(1) and (3) and 225 of the Constitution that the National Government provide additional arrangements, staff and facilities, including funds, to facilitate compliance with the orders of the Court.

Cases cited

The following cases are cited in the judgment:

Electoral Commissioner v Whiskey Maniho [1987] PNGLR 449

Paias Wingti v Kala Rawali (2010) N3959

PNG Power Ltd v Ian Augerea (2013) SC1245

Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007

Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82

Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435

Special Reference by Morobe Provincial Executive (2010) SC1089

APPLICATION

This was an application for enforcement of human rights.

Counsel

S Ao & A Meten, for the applicant

C Waienge & S Phannaphen, for the respondents

25th June, 2014

1. CANNINGS J: Francis Kawai Kauke, a prisoner at Beon Jail, applies for enforcement of his human rights, which he alleges are being breached by the Jail Commander and the State who are not providing him with food that is adequate to maintain his health and well being. He says that he has discussed the matter with many other prisoners at the jail who share his concerns. They are worried about their poor diet and the effect this is having on their health. The applicant says that though his application is only in his name, he wants it dealt with as an application on behalf of all prisoners and other detainees at the jail.

2. He claims that as a prisoner he has a right to be protected against inhuman treatment and to be treated with humanity and respect for the inherent dignity of the human person and that the laws regulating correctional institutions gave effect to these rights by prescribing minimum nutritional requirements for food provided to detainees. He claims that these rights are breached by the detainees being provided with an unbalanced and non-nutritious diet: they are, with occasional exceptions, provided with the same type of food every day and are rarely provided fruit, vegetables or dairy products as required by law.

3. The Jail Commander and the State deny these allegations and assert that no breach of human rights has been established.

4. The following issues arise:

1 What are the human rights of detainees, in regard to food and diet?

2 What food is provided to detainees at Beon Jail?

3 Has any breach of human rights been proven?

4 What declarations or orders should the Court make?

1 WHAT ARE THE HUMAN RIGHTS OF DETAINEES, IN REGARD TO FOOD AND DIET?

5. Human rights in Papua New Guinea are conferred by Division III.3 of the Constitution, consisting of Sections 32 to 58. People who are detained in custody do not lose their human rights. In fact they gain some, as some rights have extra practical significance once a person is deprived of their liberty. Four need to be highlighted:

6. Section 36(1) (freedom from inhuman treatment) states:

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

7. Section 37(1) (protection of the law) states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

8. Section 37(17) (protection of the law) states:

All persons deprived of their liberty shall be treated with...