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
• Citation: (2006) N3918
• Date: 30 June 2006
• Docket Number: MP NO 624 0F 2006
• Court: National Court
• Year: 2006

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

REASONS FOR DECISION

HUMAN RIGHTS—right to liberty of the person—Constitution, s42 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, s36: freedom from inhuman treatment—s37: protection of the law.

CONSTITUTIONAL LAW—Basic Rights—enforcement of basic rights—Constitution, s57: 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 s42(5) and s57 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 s36(1), s37(1) and s37(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, s57(3).

Cases cited

The following cases are cited in the judgment:

Re Application by Benetius Gehasa Buka (2005) N2817; Re Conditions of Detention at Beon Correctional Institution, Madang Province (2006) N2969; Re Conditions of Detention at Bialla Police Lock-Up, WNBP (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.

30 June, 2006

1. CANNINGS J: This judgment gives my reasons for deciding to exercise the power of the National Court under s57(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 s144, s145 and s148 of the...