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 and the need to secure funding for, build and equip a proper Correctional Institution for the Autonomous Region of Bougainville (2006) N4976

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 06 October 2006
• Citation: (2006) N4976
• Docket Number: MP NO 726 0F 2006
• Court: National Court
• Year: 2006
• Judgement Number: N4976

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 and the need to secure funding for, build and equip a proper Correctional Institution for the Autonomous Region of Bougainville (2006) N4976

National Court: Cannings J

Judgment Delivered: 6 October 2006

N4976

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 AND THE NEED TO SECURE FUNDING FOR,

BUILD AND EQUIP A PROPER CORRECTIONAL INSTITUTION

FOR THE AUTONOMOUS REGION OF BOUGAINVILLE

CANNINGS J

Buka: 28, 29 September 2006

Kimbe: 6 October 2006

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.

This is a follow-up of orders made by the National Court on 25 August 2006. The court made orders then to deal with two pressing human rights matters: the existing condition of the Buka police lock-up and the need to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency.

Held:

(1) The orders of 25 August 2006 concerning the Buka police lock-up remain in force and are supplemented by a further order that a progress report be filed, in affidavit form, to the court on 25 October 2006 with a view to completing remedial work by 25 November 2006.

(2) As to the need to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency, the Administrator of the Autonomous Region of Bougainville and the Commissioner of the Correctional Service are to file progress reports, on a monthly basis, until the court is satisfied that this pressing human rights issue has been resolved.

Cases cited

The following cases are cited in the judgment:

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 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

C Siriosi, for the Administrator of the Autonomous Bougainville Government

D Piandi, for the Commissioner of the Correctional Service

K P Isari, for the Commissioner of Police

P Kaluwin, for the applicants

R Luman, for the State

6 October, 2006

1. CANNINGS J: These are my reasons for making further orders regarding two matters:

· the Buka police lock-up; and

· the need to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency.

2. On Friday 25 August 2006 I made orders under Sections 57(1), 57(3) and 57(5) of the National Constitution and Sections 183(1), 183(3) and 183(5) of the Bougainville Constitution, to enforce the rights of any person in future detained at the Buka police lock-up or detained in custody under a sentence or other order of a court on Bougainville. The jail at Kieta was destroyed during the Bougainville Crisis and Bougainville still does not have a proper jail. The Buka police lock-up is being used as a jail. Many convicted prisoners are serving their sentences at the lock-up, which was not designed for that purpose. They are mixed together with people who have been detained for short periods after arrest and with remandees, those charged with offences and in custody awaiting trial. The conditions in which the detainees are being kept are deplorable. As explained in my judgment of 25 August 2006 the lock-up is overcrowded, there are no sleeping facilities and no proper sanitation or water supply. It 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. To enforce those human rights I made these orders:

1 The Commissioner of Police must take all reasonable steps to clean and renovate the lock-up to make it a suitable facility for detaining persons and without limiting the generality of the foregoing must ensure that proper, functioning toilet and shower facilities are installed; that adequate light and fresh air is allowed to enter the facility; that there is an adequate supply of fresh drinking water for detainees; that the facility is properly drained; and the facility is compliant with electrical supply standards and insulated from electric shock.

2 In the course of complying with order No 1, there shall be meaningful consultation conducted with all other relevant authorities, including the President of the Autonomous Bougainville Government, the officer in charge of the Bougainville Health Administration, the Commissioner of the Correctional Service, PNG Power Limited; the Buka Town Council, the Assistant Commissioner of Police for Bougainville and the Buka Police Station Commander, each of whom shall assist in compliance with order No 1.

3 All things necessary to comply with order No 1 shall be done within three months after the making of this order.

4 The Administrator of the Autonomous Bougainville Government, the Commissioner of Police and the Commissioner of the Correctional Service or their duly authorised delegates must attend the National Court at Buka on 25 September 2006 and inform the Court of the steps being taken to (a) give effect to order No 1 and (b) secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency.

5 The entire facility must be hosed and cleaned and a reliable supply of fresh running water reconnected within one week after the date of this order.

3. The orders covered two pressing human rights matters:

· the existing condition of the Buka police lock-up (order Nos 1, 2, 3, 4(a) and 5); and

· the need to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency (order no 4(b)).

4. I returned to Buka on Wednesday 27 September 2006 (a little later than planned due to flight delays) and stayed until Saturday 30 September 2006. I completed part-heard matters and delivered judgments in six cases, reserved from the August 2006 circuit, heard bail applications and conducted further hearings regarding the two pressing human rights matters referred to. I visited the lock-up on Thursday 28 September 2006 in the company of the lawyers representing the parties involved and the Assistant Commissioner of Police for Bougainville, Paul Kamuai.

THE EXISTING CONDITION OF THE BUKA POLICE LOCK-UP: ORDER NOS 1, 2, 3, 4(a) AND 5

5. On Thursday 28 September 2006 the lock-up had 68 detainees, comprising 29 convicted prisoners and 39 remandees. This was a significant reduction from the total of 103 who were being detained on the date of my previous visit, Friday 18 August 2006. This was largely due to my granting bail to 41 remandees in a special bail hearing at the end of the August 2006 circuit. (I granted bail to a further four on Friday 29 September 2006.) 68 detainees is still, however, too many. The 29 convicted prisoners should be in a proper jail, where proper health and hygiene prevails and where they can be rehabilitated and corrected. To my disappointment order No 5 – hose and clean the facility and reconnect a reliable supply of fresh running water, by 1 September 2006 – had not been complied with. The lock-up was still in a filthy, disgusting condition. It is a miracle that there has been no breakout of disease amongst...