In the matter of enforcement of basic rights and human rights under The Constitution of The Independent State of Papua New Guinea, Section 57 and The Constitution of The Autonomous Region of Bougainville, Section 183; Re Conditions of Detention at Buka Police Lock-Up, Autonomous Region of Bougainville (2006) N4478

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 August 2006
• Citation: (2006) N4478
• Docket Number: MP NO 726 0F 2006
• Court: National Court
• Year: 2006
• Judgement Number: N4478

Full Title: MP NO 726 0F 2006; In the matter of enforcement of basic rights and human rights under The Constitution of The Independent State of Papua New Guinea, Section 57 and The Constitution of The Autonomous Region of Bougainville, Section 183; Re Conditions of Detention at Buka Police Lock-Up, Autonomous Region of Bougainville (2006) N4478

National Court: Cannings J

Judgment Delivered: 25 August 2006

N4478

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 726 0F 2006

IN THE MATTER OF ENFORCEMENT

OF BASIC RIGHTS AND HUMAN RIGHTS UNDER

THE CONSTITUTION OF THE INDEPENDENT STATE OF

PAPUA NEW GUINEA, SECTION 57

AND

THE CONSTITUTION OF THE

AUTONOMOUS REGION OF BOUGAINVILLE, SECTION 183

RE CONDITIONS OF DETENTION AT BUKA POLICE LOCK-UP,

AUTONOMOUS REGION OF BOUGAINVILLE

Buka: Cannings J

2006: 25 August

REASONS FOR DECISION

HUMAN RIGHTS – conditions of detention for detainees – prisoners and remandees – police lock-up – need for conditions of detention to comply with constitutional requirements – Constitution of the Independent State of Papua New Guinea, Section 36: freedom from inhuman treatment – Section 37: protection of the law – Constitution of the Autonomous Region of Bougainville, Section 178: basic rights.

CONSTITUTIONAL LAW – Basic Rights – enforcement of basic rights – Constitution of the Independent State of Papua New Guinea, Section 57: enforcement of guaranteed rights and freedoms – Constitution of the Autonomous Region of Bougainville, Section 183: 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 human rights breaches from detainees and inspected the conditions in which the detainees were held. The Judge made orders to remedy the conditions of the lock-up, using the powers of the National Court under Section 57 of the National Constitution and Section 183 of the Bougainville Constitution.

Held:

(1) The Buka police lock-up is a health hazard to the detainees and everyone working nearby. Detaining any person there for more than a short period amounts to 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 National Constitution and Section 178 of the Bougainville Constitution.

(2) 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 Section 57(3) of the National Constitution and Section 183(3) of the Bougainville Constitution.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817

In the matter of applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819

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

In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022

In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06

ENFORCEMENT OF BASIC RIGHTS AND HUMAN RIGHTS

This is an enforcement of basic rights, also known as human rights, by the National Court acting on both application and its own initiative.

Counsel

P Kaluwin, for the applicants

R Luman, for the State

25th August, 2006

1. CANNINGS J: This judgment gives my reasons for deciding to exercise the power of the National Court under 57(3) of the National Constitution and Section 183(3) of the Bougainville Constitution to order that immediate steps be taken to clean and fix the Buka police lock-up to make it comply with the human rights provisions of each 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 National Constitution. Those rights continue to apply in the Autonomous Region of Bougainville by virtue of Section 178 of the Bougainville Constitution. The Bougainville Constitution has been fully operational for more than a year.

2. On Friday 18 August 2006 I conducted an official ‘visiting justice’ visit of the Buka 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. As I pointed out in In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up, (2006) N3022 and In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up MP No 624 of 2006, 30.06.06, 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 has the power – and duty – to make orders aimed at correcting such abuses. 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, the National Constitution and the Bougainville Constitution; and

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

3. I inspected Buka police lock-up in March 2005 during a National Court circuit. I was alarmed then by what I saw and recorded my concerns in a judgment on an application by four Bougainvilleans who were prisoners, not to be transferred to Kerevat Correctional Institution. I granted their application as an enforcement of their constitutional right to be imprisoned close to where their relatives reside. I noted that it seemed incredible that they would want to stay in the Buka police lock-up, given the appalling conditions. But their rights were respected and enforced. I made a number of remarks about the condition of the lock-up. Under the heading “Need for Urgent Action”, I stated:

… Bougainville requires a purpose-built, clean, hygienic and functional correctional facility. This is an urgent infrastructural priority.

Having inspected the police lock-up last week, it is apparent that a number of constitutional rights of detainees are being infringed. The place is badly overcrowded. Some of the toilets do not work. The place smells. There is little natural light. There is next to no space in which detainees can walk or exercise. Sleeping quarters are virtually non-existent. They evidently sleep on flattened out cardboard containers on the concrete floors, jammed into their cells and in corridors like sardines. There is a strong argument to say that:

· The detainees (ie remandees plus prisoners) are being subjected to cruel and inhuman treatment and punishment, which is inconsistent with respect for the inherent dignity of the human person, contrary to Sections 36(1) and 37(17) of the Constitution.

· They are being denied the right to the full protection of the law, contrary to Section 37(1) of the Constitution.

· Accused persons (ie the remandees) are not segregated from convicted persons (such as the four applicants in the present case) and the remandees are not subject to separate treatment appropriate to their status as unconvicted persons, contrary to Section 37(18) of the Constitution.

· Juveniles are not (despite the evidence to the contrary given in the present case) all being separated from mature-age detainees, contrary to Section 37(19) of the Constitution.

The fact that the conditions are so appalling made the present case even more unusual. How could it be that four individuals desire to be imprisoned in such conditions, rather than being transferred? As stated earlier the court was satisfied that that desire was genuine, and that in the circumstances of this case it is a right that needs to be enforced.

Recommendation

In the meantime, I will do what Cory J did in Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212, 20 years ago, and make a formal recommendation under Section 57(3) of the Constitution, aimed at protecting and enforcing constitutional rights. The recommendation is addressed to:

· the National Government and in particular the Minister for Correctional Services, the Minister for Inter-Government Relations, the Minister for Internal Security and the Minister for Justice; and

· all of the members of the National Parliament...