In The Matter of Enforcement of Basic Rights Under The Constitution of The Independent State of Papua New Guinea, s57 on The Own Initiative of The National Court; Re Conditions of Detention at Beon Correctional Institution, Madang Province and Re Constitution, Sections 36 and 37 (2006) N2969

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 02 February 2006
• Citation: (2006) N2969
• Docket Number: MP No 23 of 2006
• Court: National Court
• Year: 2006
• Judgement Number: N2969

Full Title: MP No 23 of 2006; In The Matter of Enforcement of Basic Rights Under The Constitution of The Independent State of Papua New Guinea, s57 on The Own Initiative of The National Court; Re Conditions of Detention at Beon Correctional Institution, Madang Province and Re Constitution, Sections 36 and 37 (2006) N2969

National Court: Cannings J

Judgment Delivered: 2 February 2006

N2969

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 23 0F 2006

IN THE MATTER OF ENFORCEMENT

OF BASIC RIGHTS UNDER THE CONSTITUTION

OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,

SECTION 57

ON THE OWN INITIATIVE OF THE NATIONAL COURT

RE CONDITIONS OF DETENTION AT

BEON CORRECTIONAL INSTITUTION, MADANG PROVINCE

AND

RE CONSTITUTION,

SECTIONS 36 AND 37

MADANG : CANNINGS J

1, 2 FEBRUARY 2006

REASONS FOR DECISION

Human rights – conditions of detention for convicted prisoners – commission of disciplinary offences within prisons – confinement cells – need for conditions of confinement to comply with constitutional requirements – Constitution, Section 36: freedom from inhuman treatment – Section 37: protection of the law.

Constitutional law – Basic Rights – enforcement of basic rights – Constitution, Section 57: enforcement of guaranteed rights and freedoms – power of National Court to enforce human rights – National Court shall protect and enforce rights on application or on its own initiative.

A Judge conducted an official visit of a correctional institution and inspected the conditions in which prisoners and remandees were being detained. The Judge, having inspected the separate confinement cells in which four prisoners who had committed internal disciplinary offences were being detained, expressed concern about whether the conditions of detention complied with constitutional requirements or guaranteed human rights. The Judge heard from the four prisoners and, having heard the views of the Gaol Commander, indicated to the Commander that consideration would be given to making an order regarding the future use of the cells, using the powers of the National Court on its own initiative under Section 57 of the Constitution.

Held:

(1) The use of the separate confinement cells at Beon correctional institution to punish detainees and/or to impose discipline within the gaol is in breach of the human rights guaranteed to all persons under Sections 36(1), 37(1) and 37(17) of the Constitution.

(2) The conditions in which four prisoners are being detained in dark, confined spaces without natural or artificial light or an appropriate supply of fresh air for lengthy periods amounted to physical and mental torture and treatment that is cruel and inhuman and inconsistent with respect for the inherent dignity of the human person.

(3) The National Court has a power and duty under Section 57 of the Constitution to protect and enforce the basic rights; and such power and duty can be exercised either in its own initiative or on application by an interested party.

(4) The National Court has a duty to act quickly and decisively to enforce the basic rights guaranteed by the Constitution. That duty was exercised by the making of orders under Constitution, Section 57(3).

Cases cited

The following cases are cited in the judgment:

Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212

Application by Benetius Gehasa (2005) N2817

Constitutional Reference No 1 of 1977, Re Section 42 of the Constitution [1977] PNGLR 362

In The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819

John Alex v Martin Golu [1983] PNGLR 117

Supreme Court Reference No 3 of 1979; The State v John Rumet Kaputin [1979] PNGLR 532

The State v Ass Medron Nangil, Pius Moro, Batla Mahen, Jacob Peni, Weite Bumari, Paulus Bill (2005) N2823

The State v Bafe Quati and Others [1990] PNGLR 57

Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87

Abbreviations

The following abbreviations appear in the judgment:

CJ – Chief Justice

DCJ – Deputy Chief Justice

eg – for example

J – Justice

N – National Court judgments

OK – okay; all right

SC – Supreme Court judgments

Tables

The following tables appear in the judgment:

1 – Beon correctional institution detainee break-up, 1 February 2006.

2 – Prisoners in separate confinement at Beon, 1 February 2006.

ENFORCEMENT OF BASIC RIGHTS

This is an enforcement of basic rights by the National Court acting on its own initiative.

CANNINGS J:

INTRODUCTION

This judgment gives my reasons for deciding to exercise the power of the National Court under Section 57 of the Constitution to enforce the human rights of four prisoners being detained at Beon Correctional Institution, Madang Province. I have decided to order that the separate confinement cells at Beon be closed and that the four prisoners being kept in them be released from those cells and detained elsewhere within the prison.

I use the term ‘human rights’ interchangeably with the terms ‘constitutional rights’ and ‘basic rights’. These words mean the same things. They refer to the rights conferred on all citizens, and in some cases non-citizens, by Division III.3 (basic rights) of the Constitution of the Independent State of Papua New Guinea.

BACKGROUND

On Wednesday 1 February 2006 I conducted an official ‘visiting justice’ visit of the Beon correctional institution, Madang Province. It is also called a gaol or prison. I inspected it using my powers as a Judge under Sections 144, 145 and 148 of the Correctional Service Act.

A Judge can visit any correctional institution in the country when the Judge thinks fit and, amongst other things, inquire into the treatment and conduct of the detainees and other matters as the Judge thinks fit. A Judge has the power to inquire into complaints of human rights abuses and under the Constitution has the power – and duty – to make orders aimed at correcting such abuses.

I have been the circuit Judge in Madang since November 2005. This was my first visit to Beon. I stayed for three hours. I met the Acting Gaol Commander, Mr Gubag, on arrival. He escorted me to the various compounds comprising Beon Gaol:

· the female compound;

· the juvenile compound;

· the minimum security compound;

· the main compound – this is the place of detention for both convicted ‘maximum security’ or ‘high risk’ prisoners and remandees.

I gained the impression that the first three compounds were clean, hygienic and reasonably spacious. The minimum-security compound and the juvenile compound are located very close to each other. These buildings were opened in 2000 with Australian Government funding assistance. It is a credit to the gaol administration and the detainees who have been kept there for the past five or six years that these compounds still appear to be in very good condition and well maintained. The female compound too appeared clean, tidy and well organized. There are three detainees there.

The same cannot be said, however, for the main compound. It seems very crowded. There is limited space for exercise. The sleeping quarters are confined. There are no mattresses for the detainees. They sleep on the concrete floor. Shortage of towels seems a major problem. Many of the detainees do not have prison uniforms. I observed the preparation of the evening meal by a team of detainee cooks. It was boiled brown rice and tinned fish, without vegetables.

It seems that the remandees (detainees who are awaiting trial) are being housed in the main compound with convicted prisoners (also known as ‘convicts’), which is a serious problem and probably unconstitutional. I estimate that there are about 200 detainees in the main compound, based on the a break-up of the total number of detainees provided to me, as shown in the table below.

TABLE 1: BEON CORRECTIONAL INSTITUTION

DETAINEE BREAKUP 1 FEBRUARY 2006

Categories High risk Med risk Low risk Total

Male adult 86 66 72 224
convicts

Male adult 63 0 0 63
remandees

Female adult 0 1 1 2
convicts

Female adult 0 1 0 1
remandees

Male juvenile 7 6 0 13
convicts

Male juvenile 11 0 0 11
remandees

Total 167 74 73 314

At each of the four compounds I addressed the detainees and invited them to ask questions. They brought many matters to my attention, some of which can only be sorted out by them being individually interviewed by me or another visiting magistrate or judge or through the making of applications in the National Court. Apparently this was the first official visiting justice visit to Beon for some time.

When I inspected the main compound I asked to be shown the separate confinement cells. Most gaols in the country have special cells where detainees who have committed a disciplinary offence within the gaol are separately confined. These are commonly known as ‘dark cells’ because often they are literally dark cells. I found this to be the case at Lakiemata correctional institution, West New Britain Province. I am the resident Judge at Kimbe and I visited Lakiemata six times during 2005. One of the major concerns of the detainees there was the over-use of the dark cells. I discussed the matter with the Acting Gaol Commander and he agreed with the concerns I expressed: the dark cells appeared to breach the human rights provisions of the Constitution. The Lakiemata dark cells are...