In The Matter of Complaints of Unlawful and Unreasonable Detention by Michael Walge, Mathias Warpin, Donald Benson, Manuel Nally, Derek Kopman, Michael Pomaio and Simon Tembe; and 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 Bialla Police Lock-Up, West New Britain Province (2006) N3022

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2006
• Citation: (2006) N3022
• Docket Number: MP Nos 109-113 of 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3022

Full Title: MP Nos 109-113 of 2006; In The Matter of Complaints of Unlawful and Unreasonable Detention by Michael Walge, Mathias Warpin, Donald Benson, Manuel Nally, Derek Kopman, Michael Pomaio and Simon Tembe; and 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 Bialla Police Lock-Up, West New Britain Province (2006) N3022

National Court: Cannings J

Judgment Delivered: 22 March 2006

N3022

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NOS 109-113 0F 2006

IN THE MATTER OF COMPLAINTS

OF UNLAWFUL AND UNREASONABLE DETENTION BY

MICHAEL WALGE, MATHIAS WARPIN, DONALD BENSON, MANUEL NALLY, DEREK KOPMAN, MICHAEL POMAIO AND SIMON TEMBE

AND 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

BIALLA POLICE LOCK-UP, WEST NEW BRITAIN PROVINCE

BIALLA, KIMBE : CANNINGS J

16, 17, 22 MARCH 2006

REASONS FOR DECISIONS

Human rights – right to liberty of the person – Constitution, Section 42 complaints of unlawful and unreasonable detention in police lock-up – duty of National Court to inquire into complaints – duty to order release in prescribed circumstances – entitlement to bail.

Human rights – conditions of detention for remandees – police lock-up – need for conditions of detention 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 police lock-up, received complaints of unlawful or unreasonable detention from seven detainees and inspected the conditions in which they and 12 other detainees were held. The Judge inquired into the complaints and indicated that consideration would be given to making orders for the release of some of the detainees and for remedying the conditions of the lock-up, using the powers of the National Court under Sections 42(5) and Section 57 of the Constitution.

Held:

(1) The detention of seven of the detainees was unlawful and/or unreasonable, having regard to its length, the amount of bail imposed, the circumstances of their detention and the conditions of the lock-up.

(2) Accordingly orders were made under Section 42(5) of the Constitution for their release subject to conditions.

(3) The Bialla police lock-up is run-down, putrid and poorly ventilated. Detaining any person there for more than a short period amounts to physical and mental torture and treatment that is cruel and inhuman and inconsistent with respect for the inherent dignity of the human person contrary to the human rights guaranteed to all persons under Sections 36(1), 37(1) and 37(17) of the Constitution.

(4) The National Court has a duty 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:

Application by Benetius Gehasa (2005) N2817

In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969

Abbreviations

The following abbreviations appear in the judgment:

eg – for example

N – National Court judgments

OK – okay; all right

Tables

The following tables appear in the judgment:

1 – Detainees temporarily transferred from Lakiemata.

2 – Detainees arrested by Bialla police.

3 – Detainees remanded in custody by order of National Court.

ENFORCEMENT OF BASIC RIGHTS

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

Counsel

O Oiveka and B Tanewan for the complainants

F Popeu for the State

CANNINGS J:

INTRODUCTION

This judgment gives my reasons for deciding to exercise the power of the National Court under Sections 42(5)(b) and 57(3) of the Constitution to order the release of seven detainees being held at the Bialla police lock-up, and to order that immediate steps be taken to clean and fix that facility to make it comply with the human rights provisions of the Constitution.

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 Thursday 16 March 2006 I conducted an official ‘visiting justice’ visit of the Bialla police lock-up. It is also called the ‘police cell’ or polis sel. A police lock-up is deemed to be a “correctional institution” by Section 2 of the Correctional Service Act 1995. 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 was conducting a National Court circuit in Bialla during the week commencing Monday 13 March 2006. This was my first visit to the Bialla police lock-up. I stayed for one hour. I met the Acting
Police Station Commander, Major Mathew Balupa, on arrival. He escorted me through the lock-up and facilitated the interviews I conducted with seven detainees and a general discussion with all detainees held there.

The purpose of the visit was twofold:

· to inspect the lock-up and check its compliance with the standards required by the Correctional Service Act and the Constitution; and

· to hear any concerns, queries or complaints of the detainees about their detention.

THE BIALLA POLICE LOCK-UP

The police lock-up stands apart from the police station. It is separated by a courtyard measuring approximately 15 x 25 metres. The courtyard is grassed.

The lock-up is a concrete structure measuring approximately 45 x 25 metres, divided into five separate areas, only one of which appears to be used to keep detainees. The detainees rest and sleep in that part of the lock-up. It measures approximately 4.5 x 25 metres. Only a modest amount of natural light permeates the facility. Ventilation is extremely poor. Bialla is close to the sea at low altitude. The climate is tropical. It experiences high heat and humidity in the wet season.

The unused parts of the lock-up, taking up more than three-quarters of the total area, are dark and wet. Water and urine seems to leak into those parts. One of the cells cannot be entered as its iron door is rusted and jammed shut. At the far end of the lock-up is a large cell, in one corner of which is a small drum that serves as a toilet. There is a terrible, putrid stench emanating from this part of the lock-up. This area is also wet. In the corridor leading to that large cell there was a broken power switch, which seemed to have live current running through it. This creates a very serious electrical and fire hazard.

One of the areas seems to be used as a shower room. The shower consists of an open pipe, with no shower rose.

Other than the water on the floor, there was no fresh running water in the lock-up. The detainees complained of not being able to have a shower for several days.

There are no mattresses or chairs in the lock-up. Detainees must sit or stand on the concrete floor.

I recently inspected the separate confinement or detention cells (the ‘dark cells’ at Beon Correctional Institution, Madang Province and ordered that they be closed for being unconstitutional. I was left with the impression that the Bialla police lock-up is just like a big dark cell.

It is not possible for me to describe the condition of the lock-up, and the conditions in which people are detained there, other than in pejorative terms: unhealthy, unhygienic and uninhabitable; distressing, disgraceful and disgusting. (In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969.)

THE DETAINEES

The detainees are all males and fall into three categories:

· Those temporarily transferred from Lakiemata Gaol (the main correctional institution in West New Britain) where they are remanded in custody. They came to Bialla for various reasons, eg for their trial or a sentencing hearing or hearing of their bail application.

· Those arrested and detained at Bialla, by the police, either upon suspicion of committing various offences or, in one instance, in reliance on an order of the District Court to enforce a civil debt.

· Those detained the previous day pursuant to orders made in the National Court.

Their details are shown in the following tables.

TABLE 1: DETAINEES TEMPORARILY TRANSFERRED

FROM LAKIEMATA

No Name Age Details

1 Lucas Soroken 23 Convicted on 16.02.06 in Kimbe of armed robbery and
Sembengo...