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
• Citation: (2006) N4478
• Date: 25 August 2006
• Docket Number: MP NO 726 0F 2006
• Court: National Court
• Year: 2006

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

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, s36: freedom from inhuman treatment— s37: protection of the law—Constitution of the Autonomous Region of Bougainville, s178: basic rights.

CONSTITUTIONAL LAW—Basic Rights—enforcement of basic rights—Constitution of the Independent State of Papua New Guinea, s57: enforcement of guaranteed rights and freedoms—Constitution of the Autonomous Region of Bougainville, s183: 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 s57 of the National Constitution and s183 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 s36(1), s37(1) and s37(17) of the National Constitution and s178 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 s57(3) of the National Constitution and s183(3) of the Bougainville Constitution.

Cases cited

The following cases are cited in the judgment:

Re Application by Benetius Gehasa Buka (2005) N2817; Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819; Re Conditions of Detention at Beon Correctional Institution, Madang Province (2006) N2969; Re Conditions of Detention at Bialla Police Lock-Up, WNBP (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.

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 s183(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 s178 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...