In the Matter of an Application for Enforcement of Human Rights pursuant to s57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218

• Jurisdiction: Papua New Guinea
• Citation: [1996] PNGLR 218
• Date: 07 May 1996
• Court: National Court
• Year: 1996

Full Title: In the Matter of an Application for Enforcement of Human Rights pursuant to s57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218

National Court: Jalina J

Judgment Delivered: 7 May 1996

1 Constitutional law—guaranteed rights and freedoms—prisoner—freedom from inhuman treatment—enforcement of—serious and severe assaults—assault beyond need for discipline and obedience—Constitutional rights breached—Constitution s57, s36 and s46

2 Constitutional Law—guaranteed rights and freedoms—prisoner—full protection of the law—enforcement for serious and severe assaults—assaults beyond what was lawful—assault unlawful—Constitutional rights breached—Constitution s57, s37(1), s41

3 Damages—awards of—breach of human rights—action resulting in breach of human rights by individual and not by employing authority—need to reduce financial burden on the taxpayer through the State—damages should be awarded against policemen, warders or soldiers personally—may also reduce frequency of unruly behaviour by members of disciplined forces

4 Peter Simabago Simbago v The East Sepik Provincial Police Commander and The State (Hinchliffe J, Unreported National Court Judgment, 25 February 1994) and David Wari Kofowei v Augustine Siviri [1983] PNGLR 449 referred to

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Jalina J: This is an application pursuant to s57 of the Constitution whereby the applicant claims that his rights guaranteed under the Constitution have been infringed. He has completed and filed two "Application for Enforcement of Human Rights and/or Freedom" forms both of which are dated 30th January 1996. In the first of the two forms he claims breaches of rights and freedom from inhuman treatment and right to the protection of the law whilst in the second form he claims two additional breaches namely protection from acts which are otherwise legal but are harsh or oppressive and freedom of expression. He has not elected which of those two applications he wished to prosecute on. However, to the extent that his second application form contains two additional breaches it would appear to me that his second application has superseded the first application. I therefore purpose to deal with the second application on that basis.

The Constitutional provision which the applicant alleges were breached are s36 (Freedom from inhuman treatment), s37(1) (Protection of the law), s41 (Proscribed Acts) and s46 (Freedom of Expression).

The breaches are alleged to have been committed near the main gate reception area of the Buimo Corrective Institution and the persons alleged to have committed such breaches are warders Benedict Magiten, Martin Arorai, David Suagu, Boas Bukal and John Bully. The Jail Commander, of Buimo Corrective Institution, Samson Jaro, has also been named in some of the documents that have been filed but in view of evidence before me which show that he was on recreation leave at the time of the alleged breaches of Constitutional rights, I find at the outset that...