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 Beon Correctional Institution, Madang Province and Re Constitution, Sections 36 and 37 (2006) N2969

• Jurisdiction: Papua New Guinea
• Citation: (2006) N2969
• Date: 02 February 2006
• Docket Number: MP No 23 of 2006
• Court: National Court
• Year: 2006

Full Title: MP No 23 of 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 Beon Correctional Institution, Madang Province and Re Constitution, Sections 36 and 37 (2006) N2969

National Court: Cannings J

Judgment Delivered: 2 February 2006

1

REASONS FOR DECISION

Human rights—conditions of detention for convicted prisoners—commission of disciplinary offences within prisons—confinement cells—need for conditions of confinement 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 correctional institution and inspected the conditions in which prisoners and remandees were being detained. The Judge, having inspected the separate confinement cells in which four prisoners who had committed internal disciplinary offences were being detained, expressed concern about whether the conditions of detention complied with constitutional requirements or guaranteed human rights. The Judge heard from the four prisoners and, having heard the views of the Gaol Commander, indicated to the Commander that consideration would be given to making an order regarding the future use of the cells, using the powers of the National Court on its own initiative under s57 of the Constitution.

Held:

(1) The use of the separate confinement cells at Beon correctional institution to punish detainees and/or to impose discipline within the gaol is in breach of the human rights guaranteed to all persons under s36(1), s37(1) and s37(17) of the Constitution.

(2) The conditions in which four prisoners are being detained in dark, confined spaces without natural or artificial light or an appropriate supply of fresh air for lengthy periods amounted to physical and mental torture and treatment that is cruel and inhuman and inconsistent with respect for the inherent dignity of the human person.

(3) The National Court has a power and duty under s57 of the Constitution to protect and enforce the basic rights; and such power and duty can be exercised either in its own initiative or on application by an interested party.

(4) The National Court has a duty to act quickly and decisively to enforce the basic rights guaranteed by the Constitution. That duty was exercised by the making of orders under Constitution, s57(3).

Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212, Application by Benetius Gehasa (2005) N2817, Constitutional Reference No 1 of 1977, Re s42 of the Constitution [1977] PNGLR 362, In The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819, John Alex v Martin Golu [1983] PNGLR 117, Supreme Court Reference No 3 of 1979; The State v John Rumet Kaputin [1979] PNGLR 532, The State v Ass Medron Nangil, Pius Moro, Batla Mahen, Jacob Peni, Weite Bumari, Paulus Bill (2005) N2823, The State v Bafe Quati and Others [1990] PNGLR 57, Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87 referred to

Abbreviations

The following abbreviations appear in the judgment:

CJ—Chief Justice

DCJ—Deputy Chief Justice

eg—for example

J—Justice

N—National Court judgments

OK—okay; all right

SC—Supreme Court judgments

Tables

The following tables appear in the judgment:

1 — Beon correctional institution detainee break–up, 1 February 2006.

2 — Prisoners in separate confinement at Beon, 1 February 2006.

ENFORCEMENT OF BASIC RIGHTS

This is an enforcement of basic rights by the National Court acting on its own initiative.

_______________________________

CANNINGS J:

INTRODUCTION

This judgment gives my reasons for deciding to exercise the power of the National Court under s57 of the Constitution to enforce the human rights of four prisoners being detained at Beon Correctional Institution, Madang Province. I have decided to order that the separate confinement cells at Beon be closed and that the four prisoners being kept in them be released from those cells and detained elsewhere within the prison.

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.

BACKGROUND

On Wednesday 1 February 2006 I conducted an official 'visiting justice' visit of the Beon correctional institution, Madang Province. It is also called a gaol or prison. I inspected it using my powers as a Judge under s144, s145 and s148 of the Correctional Service Act.

A Judge can visit any correctional institution in the country when the Judge thinks fit and, amongst other things, inquire into the treatment and conduct of the detainees and other matters as the Judge thinks fit. A Judge has the power to inquire into complaints of human rights abuses and under the Constitution has the power—and duty—to make orders aimed at correcting such abuses.

I have been the circuit Judge in Madang since November 2005. This was my first visit to Beon. I stayed for three hours. I met the Acting Gaol Commander, Mr Gubag, on arrival. He escorted me to the various compounds comprising Beon Gaol:

· the female compound;

· the juvenile compound;

· the minimum security compound;

· the main compound—this is the place of detention for both convicted 'maximum security' or 'high risk' prisoners and remandees.

I gained the impression that the first three compounds were clean, hygienic and reasonably spacious. The minimum–security compound and the juvenile compound are located very close to each other. These buildings were opened in 2000 with Australian Government funding assistance. It is a credit to the gaol...