Re lack of Correctional Service (CS) Facilities in the Enga Province

• Jurisdiction: Papua New Guinea
• Judge: Ellis J
• Judgment Date: 02 February 2010
• Citation: (2010) N3886
• Court: National Court
• Year: 2010
• Judgement Number: N3886

Full : MP 14 of 2010; In the matter of enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea Re lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886

National Court: Ellis J

Judgment Delivered: 2 February 2010

N3886

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP 14 of 2010

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER

THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

RE LACK OF CORRECTIONAL SERVICE (CS) FACILITIES IN ENGA PROVINCE

Wabag: Ellis J

2010: 2 February

REASONS FOR DECISION

HUMAN RIGHTS – conditions of detainees – lack of facilities for prisoners in Enga Province – a prison with no prisoners in Mukurumanda – Police cells in Wabag condemned by the Department of Health – prisoners from Enga Province held in Western Highlands Province – conditions in Baisu prison near Mount Hagen in Western Highlands Province

CONSTITUTION - rights – breaches of basic rights set out in sections 36, 37(1), 37(17) and 37(18) – enforcement of basic rights under section 57 by the court on its own initiative

Cases cited:

Ana Komidese and others v Commissioner of Correctional Services [1985] PNGLR 212

In The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumbi and Andrew Amid [2005] PGNC 139; N2819 (23 March 2005)

2nd February, 2010

1 ELLIS J: Introduction: “The rule of law” is a phrase used to describe the system under which people are governed by laws passed by parliament and the courts determine whether one of those laws has been broken and, if so, what orders should be made. For example, when a judge hears a criminal trial, the question to be decided is whether one of the laws of Papua New Guinea, usually a section of the Criminal Code, has been broken by the accused person and, if so what should be the punishment.

2 The Constitution of the Independent State of Papua New Guinea (the Constitution) sets minimum standards in a number of areas which are called basic rights (sometimes referred to as human rights). When it appears that those basic rights have been breached, it is not necessary for a judge to wait for someone to make an application and present the case in support of the alleged breach since a judge is permitted to commence an inquiry in order to decide whether those basic rights have been breached and, if so, what orders should be made by the court. This is such a case, arising from the conditions under which people from Enga Province who have either been sentenced to prison or are awaiting trial are currently being held.

Basic rights in the Constitution

3 There are many basic rights set out in the Constitution. They include such basic rights as the right to vote and freedom of religion. Only those relevant to these proceedings are set out below.

4 Section 36, headed “Freedom from inhuman treatment”, says:

“No person shall be submitted … to treatment that is cruel or otherwise inhuman, or is inconsistent with the inherent dignity of the human person.”

5 Section 37 is headed “Protection of the Law”. It has many sub-sections. Again, only those relevant to these proceedings are set out below.

“(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

(4) A person charged with an offence –

(a) shall be presumed innocent until proved guilty according to law…”

(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(18) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(20) An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made, the reason for doing so shall be endorsed on the file of the offender.

6 Obviously, it was not enough to just set out basic rights in the Constitution: it was also necessary to set out how those basic rights may be enforced. That is why section 57, headed “Enforcement of guaranteed rights and freedoms” was included in the Constitution. Set out in full, it reads as follows.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2) For the purposes of this section–

(a) the Law Officers of Papua New Guinea; and

(b) any other persons prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.

Prison visits by judges

7 The effect of sections 144, 145 and 148 of the Correctional Service Act 1995 is that a judge in Papua New Guinea may inspect prison facilities at any time in order to do such things as:

(a) inquire into the treatment and conduct of the detainees; and

(b) inspect and observe the correctional facilities and programmes; and

(c) hear any complaints made to him by members; and

(d) review the document of commitment of every detainee received into the correctional institution since the last visit of a judge or magistrate for apparent error or excess and to assist a detainee in the initiation of a review if appropriate; and

(e) hear and determine appeals from hearings by the Commanding Officer of offences committed by detainees; and

(f) inquire into such matters as he thinks fit or the Commissioner directs.

8 These proceedings were commenced by me as a result of deciding to inquire into the treatment and conditions of detainees from Enga Province when I was recently appointed to be the resident National Court judge in Wabag.

The criminal justice system

9 For the benefit of those with little or no experience of the legal system in Papua New Guinea in relation to criminal cases, the following summary is provided. When the Police believe they have enough evidence to prove that someone has committed a crime, they charge that person. In between the time when that person is charged and when the court decides his/her case, they are either released back into the community (on bail) or they are kept in prison (on remand). Since section 37(4) of the Constitution requires that people are presumed innocent until proven guilty, people who are on remand have a different status to those who have been convicted (ie found guilty by a court). When brought before court, a person may enter a plea or guilty or not guilty. If the plea is not guilty then a trial is conducted. Those who are found not guilty are released. Those who are found guilty and those who plead guilty are convicted and then sentenced.

10 For less serious crimes, the case is heard by a Magistrate in the District Court. For more serious crimes, the District Court Magistrate conducts what is known as a committal hearing to make sure there is enough evidence to justify sending the case for hearing in the National Court. Until he or she can be brought before a District Court magistrate, a person charged with a crime (commonly called the accused) will usually be held...