In The Matter of An Application for Enforcement of Human Rights under Sections 57 & 58 of the Constitution; Nail Lamon and Sinclair Mafuk and Andrew Wangiak and Mupape Map and Namure Kanai v Senior Constable Zakang Bumai and Constable Henry Angau and Constable Simon Noke and Constable Daniel Kapen and Sergeant John Kupang and Constable Mathew Bakani and Constable Jack Moyas and Commissioner of Police and The Independent State of Papua New Guinea (2008) N3468

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 September 2008
• Court: National Court
• Citation: (2008) N3468
• Docket Number: MP NO 353 0F 2005
• Year: 2008
• Judgement Number: N3468

Full Title: MP NO 353 0F 2005; In The Matter of An Application for Enforcement of Human Rights under Sections 57 & 58 of the Constitution; Nail Lamon and Sinclair Mafuk and Andrew Wangiak and Mupape Map and Namure Kanai v Senior Constable Zakang Bumai and Constable Henry Angau and Constable Simon Noke and Constable Daniel Kapen and Sergeant John Kupang and Constable Mathew Bakani and Constable Jack Moyas and Commissioner of Police and The Independent State of Papua New Guinea (2008) N3468

National Court: Cannings J

Judgment Delivered: 17 September 2008

N3468

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 353 0F 2005

IN THE MATTER OF AN APPLICATION

FOR ENFORCEMENT OF HUMAN RIGHTS

UNDER SECTIONS 57 & 58 OF THE CONSTITUTION

BY

NAIL LAMON

First Plaintiff

SINCLAIR MAFUK

Second Plaintiff

ANDREW WANGIAK

Third Plaintiff

MUPAPE MAP

Fourth Plaintiff

NAMURE KANAI

Fifth Plaintiff

AGAINST

SENIOR CONSTABLE ZAKANG BUMAI

First Defendant

CONSTABLE HENRY ANGAU

Second Defendant

CONSTABLE SIMON NOKE

Third Defendant

CONSTABLE DANIEL KAPEN

Fourth Defendant

SERGEANT JOHN KUPANG

Fifth Defendant

CONSTABLE MATHEW BAKANI

Sixth Defendant

CONSTABLE JACK MOYAS

Seventh Defendant

COMMISSIONER OF POLICE

Eighth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Ninth Defendant

Madang: Cannings J

2008: 15, 27 May

17 September

JUDGMENT

HUMAN RIGHTS – enforcement – right to freedom – protection from inhuman treatment – right to liberty – freedom from forced labour – freedom from arbitrary search and entry – equality of citizens.

The police entered a village and arrested and detained a number of young men (the plaintiffs) on suspicion of involvement in a murder. The plaintiffs allege that they were subject to torture and inhuman treatment by the police and detained for an extended period without charge. They commenced proceedings under Section 57 of the Constitution seeking enforcement of their human rights. A trial was held to determine whether the defendants, including the State, were liable for breach of human rights.

Held:

(1) The plaintiffs adduced credible evidence. The defendants failed to adduce any evidence or attend the trial. The court found that the allegations were proven and made findings of fact accordingly.

(2) A number of the plaintiffs’ human rights were breached, viz

· right to freedom (Constitution, s 32);

· protection from inhuman treatment (Constitution, s 36);

· right to liberty (Constitution, s 42);

· freedom from forced labour (Constitution, s 43);

· freedom from arbitrary search and entry (Constitution, s 49).

(3) The claim for breach of the right of equality (Constitution, s 55) was denied.

(4) The plaintiffs established a cause of action for breach of human rights against all defendants, with damages to be assessed.

Cases cited

The following cases are cited in the judgment:

In the Matter of Enforcement of Basic Rights under the Constitution, Section 57, Re Release of Prisoners on Licence (2008) N3421

Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022

APPLICATIONS

This was a trial to determine whether the plaintiffs’ applications for enforcement of human rights should be upheld.

Counsel

W Akuani, for the plaintiffs

No appearance for the defendants

1. CANNINGS J: This is a human rights case. There are five plaintiffs, all young men from Sawoi and Suang villages in the Rai Coast district of Madang Province. They say that they are victims of human rights abuses committed by members of the Police Force at or near their villages in April 2004.

2. They say that the police entered Sawoi village at 4.30 one morning, and arrested and detained a number of them on suspicion of their involvement in a murder. They say that they were subject to torture and inhuman treatment and detained for three weeks without charge, before being brought to Madang and remanded in custody for a month. They were released by order of the District Court, after the police failed to pursue the case.

3. They have brought proceedings in the National Court under Section 57 of the Constitution seeking enforcement of their human rights.

4. The plaintiffs are:

· Nail Lamon (1st plaintiff, age 23 years in April-May 2004, from Sawoi);

· Sinclair Mafuk (2nd plaintiff, age 24, from Sawoi);

· Andrew Wangiak (3rd plaintiff, age 23, from Suang);

· Mupape Mark (4th plaintiff, age 24, from Sawoi);

· Namure Kanai (5th plaintiff, age 19, from Sawoi).

5. The defendants are:

· the seven police officers who dealt with the plaintiffs;

· the Commissioner of Police; and

· the State.

6. The Commissioner and the State are alleged to be vicariously liable for the actions of the police.

7. Section 57 of the Constitution is the provision that allows the National Court to make orders, such as damages (payment of compensation), against those who are responsible for breaching the human rights of others. ‘Human rights’ refer to the Basic Rights conferred on all citizens (and in some cases non-citizens) by Division III.3 of the Constitution.

8. These are not paper rights or mere expressions of principle. They are justiciable, legal rights. They can be enforced in the National Court and the Supreme Court, primarily under Section 57 but also under Sections 22, 23 and 155(4) (the national judicial system) of the Constitution (In the Matter of Enforcement of Basic Rights under the Constitution, Section 57, Re Release of Prisoners on Licence (2008) N3421).

9. What I have to determine in this case is whether the plaintiffs have established a cause of action for breach of their human rights. That is: have they proven that their rights were breached?

THE EVIDENCE

10. Each of the plaintiffs has sworn an affidavit, setting out their side of the story. This evidence has been corroborated by affidavits of five other people, community leaders from Sawoi, including the former member for Rai Coast in the National Parliament, Mafuk Gainda. Sawoi is in the Saidor LLG area of the Rai Coast District.

None of the defendants gave notice of their intention to defend this case. No affidavits were filed. They did not attend the trial and were not legally represented. I am satisfied, however, that they were all given notice of the trial and have been given ample opportunity to put their side of the story.

FINDINGS OF FACT

11. I am not bound to accept the plaintiffs’ evidence. I have not automatically adopted it. I have considered it on its merits.

12. I note that each affidavit is quite detailed. There are no material inconsistencies in the versions of events given in the affidavits. I have considered the possibility that the plaintiffs’ claims are bogus, that they have made up this story to extract compensation from the State. However, that is a remote possibility. I have taken into account the corroboration provided by the community leaders’ evidence. Also, the plaintiffs’ case has been carefully put together by a reputable law firm, William Akuani Lawyers, with expertise in human rights law.

13. The plaintiffs have proven on the balance of probabilities that the events they allege in their affidavits actually took place. I make findings of fact in accordance with their allegations and summarise them as follows. The events took place in 2004.

Monday 5 April

14. At 4.30 to 5.30 am a police squad entered Sawoi village and went to a boy house and arrested a group of young men, including plaintiffs Nail Lamon, Sinclair Mafuk and Namure Kanai. The police officers involved were:

· Snr Const Zakang Bumai (1st defendant) who was in charge of the squad;

· Const Henry Angau (2nd defendant);

· Const Simon Noke (3rd defendant);

· Const Mathew Bakani (6th defendant); and

· Const Jack Moyas (7th defendant).

15. The police suspected that the plaintiffs had murdered a local man, Dumeo Gumoi, who had gone missing. His body had not been found. The police were acting on information provided by a local glasman.

16. The police tied the hands of the arrested men with power lines. At 6.00 am, they took them to Saidor station, next to the airstrip. The police verbally abused them, accused them of killing Dumeo Gumoi and beat them with tree branches until they were bleeding.

17. At 7.00 am the police took them to Saidor police station. In the meantime the police had sent word that Mupape Map, the 4th plaintiff, had to go to the police station. By the time Mupape Map got to the police station, Nail Lamon and others were detained there, their hands tied together with power lines.

18. The arrested men were put into two groups. Some, including Nail Lamon and Namure Kanai, were left outside, in the open, all day, under the sun. Others, including Sinclair Mafuk, were beaten and interrogated.

19. Mupape Mark was kicked on different parts of his body. His left arm was broken. He was taken to Saidor Health Centre, where a POP cast was applied. He was also treated for other superficial injuries to his trunk, caused by being kicked.

20. Namure Kanai had his head pushed into a bucket of water for long periods. The bucket had stones in it and Namure Kanai lost five front teeth and was close to suffocation. He admitted, falsely, to being involved in killing Dumeo Gumoi and told the police he knew how it happened. The police apologised for injuring him and...