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 Kimbe Police Lock-Up, West New Britain Province (2006) N3918

• Jurisdiction: Papua New Guinea
• Judge: CANNINGS J
• Judgment Date: 30 June 2006
• Citation: (2006) N3918
• Docket Number: MP NO 624 0F 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3918

Full Title: MP NO 624 0F 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 Kimbe Police Lock-Up, West New Britain Province (2006) N3918

National Court: CANNINGS J

Judgment Delivered: 30 June 2006

N3918

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 624 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

KIMBE POLICE LOCK-UP, WEST NEW BRITAIN PROVINCE

CANNINGS J

Kimbe: 22 June 2006

Waigani: 30 June 2006

REASONS FOR DECISION

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 28 detainees and inspected the conditions in which they 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 57 of the Constitution.

Held:

(1) The Kimbe police lock-up is run-down, disgusting and a health hazard to the detainees and police officers. 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.

(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 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

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

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 G Pipike, for the complainants

F Popeu, for the State

30 June, 2006

1. CANNINGS J: This judgment gives my reasons for deciding to exercise the power of the National Court under 57(3) of the Constitution to order that immediate steps be taken to clean and fix the Kimbe police lock-up to make it comply with the human rights provisions of the Constitution.

2. 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.

3. During May 2006 I received a number of informal complaints and concerns from members of the public about the condition of the Kimbe police lock-up. I wrote to the Provincial Health Adviser and asked him to inspect the facility and prepare a report for my consideration. I received the report on 19 June 2006.

4. On Tuesday 20 June 2006, I conducted an official ‘visiting justice’ visit of the Kimbe 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.

5. 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, 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.

6. 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 PROVINCIAL HEALTH ADVISER’S REPORT

7. The report was prepared by the then Provinical Health Adviser, Mr Joshua Giru. He has since been appointed as Provincial Administrator. His report highlighted grave public health concerns about the condition of the lock-up. For example:

TOILETS

§ There is only one of the two original toilets being used by the remandees, but with great reluctance due to the state of the adjoining plumbing fixtures. The lone drain conveying excreta from the toilet pan to the septic tank is broken, therefore allowing excreta to be deposited outside the cell walls.

§ Run off from excessive rainwater has continued to carry raw sewage and solid wastes into the unused main cellblock carrying foul odour and subsequent deposit of human waste.

§ The other toilet has ceased to operate completely as a direct result of lack of maintenance and care.

§ Floors into the cellblocks and toilets covered with foul water from the toilet being used and tap water from a malfunctioning conveyance apply pipe. I personally thought bad about entering the cellblock and toilet areas because of the state of the facilities.

§ Walls very dirty and full of graffiti and algae where the walls meet the floor, a direct result of the stagnant water present continuously.

STRUCTURE

§ The Police Lockup constructed some 30 years ago has been neglected in terms of maintenance and is long overdue for demolition.

§ Roofing rusty and riddled with holes, therefore, contributing to rainwater entering the entire cellblocks. Remandees have been converging in the open cell areas regardless of their category. High risk and low risk remandees as well as minors continue to live together because the main cellblocks are not fit to be used in their current state.

§ Rafters and beams holding the roof structure have rotten to a stage where they cannot carry the weight of the roof resulting in the caving in of the corrugated roofing material.

LIGHTING/VENTILATION

§ Lighting within the main cellblocks, toilets and shower area are non-existent and light frames (electrical) are becoming death traps. Someone could easily commit suicide if they think fit or accidentally get electrocuted with water everywhere and leaking roof.

§ Ventilation within the entire main cell block including the two (2) unused cell blocks, toilets, shower and walk ways are so cramped that any form of ventilation will not be sufficient for the number of remandees kept at one time.

GENERAL OBSERVATIONS

The general outlook of the lockup is an indication of the conditions presented within. You even recognize the odour (Sewage) from the car park and the general office and duty counter of the Police Station. Refuse including food wrappers, plastics, buai skin, betel nut residue is seen outside the open cell areas and without regard for proper collection and disposal. I personally had to order the immediate removal of refuse during the inspection observed by members of the public and police personnel.

The continuous neglect and subsequent failure to seek funds and donations to maintain facilities left a very bad impression of the Police Department by the public.

THE DETAINEES

8. There were 28 detainees in the lock-up on the day that I inspected it. Many were emaciated and looking in very poor condition. The stench of human waste was nauseating. Some detainees had been there for several weeks. One detainee, Johnny Clement, had been detained after being picked up by the police for being drunk. He was in the lock-up for six days without being charged or brought before a court.

9. In the days following my visit I heard bail...