In the matter of enforcement of basic rights under the Constitution of the Independent State of Papua New Guinea, Section 57; Re conditions of detention at Lakiemata Correctional Institution (2007) N4999

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 February 2007
• Citation: (2007) N4999
• Docket Number: MP No 813 of 2006
• Court: National Court
• Year: 2007
• Judgement Number: N4999

Full Title: MP No 813 of 2006; In the matter of enforcement of basic rights under the Constitution of the Independent State of Papua New Guinea, Section 57; Re conditions of detention at Lakiemata Correctional Institution (2007) N4999

National Court: Cannings J

Judgment Delivered: 16 February 2007

N4999

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 813 0F 2006

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER

THE CONSTITUTION OF THE INDEPENDENT STATE OF

PAPUA NEW GUINEA, SECTION 57

RE CONDITIONS OF DETENTION AT LAKIEMATA CORRECTIONAL INSTITUTION

APPLICATION BY JOHN BOSCO, KORAK MEKORE,

THOMAS MADI, DANIEL WALUS, JACKY VUTNAMUR,

FRANCIS SALI AND ANDREW ULO FOR AND ON BEHALF OF ALL DETAINEES

Kimbe: Cannings J

2006: 13 October, 18, 22 December,

2007: 6, 16 February

HUMAN RIGHTS – conditions of detention for detainees – prisoners and remandees – jail – need for conditions of detention to comply with constitutional requirements.

CONTEMPT OF COURT – categories of contempt – the disobedience contempt –discretion whether to lay charges – use of “no funds” as excuse – power of National Court to make orders to make funds available to give effect to court orders for enforcement of human rights.

The National Court made orders to fix serious problems with the quality of the water supplied to a jail, which had led to the deaths of at least two detainees, and to improve health and hygiene protocols in the jail. The orders were directed to (a) at the Managing Director of PNG Waterboard and the local Branch Manager of PNG Waterboard; (b) the Commissioner of the Correctional Service and the Jail Commander; and (c) the Provincial Health Adviser. Time limits were imposed on each office-holder made the subject of the orders. Those in category (a) complied with the orders; whereas those in categories (b) and (c) did not and were asked to show cause why they ought not be charged with contempt of court. This is a ruling on whether they should be so charged.

Held:

(1) Failure to comply with the orders of any court in the National Judicial System, particularly the National Court or the Supreme Court, is a serious matter, which can lead to a charge of contempt of court.

(2) Contempt of court is a criminal offence, conviction for which can result in criminal sanctions, including a jail term or a fine.

(3) A Judge can on his or her own initiative charge a person who has failed to comply with a court order and need not wait for a party to the proceedings to initiate a charge.

(4) When deciding whether to lay a charge of contempt a Judge should consider: (a) the extent of non-compliance with the court’s orders; (b) whether non-compliance appears to be manifestation of a deliberate snubbing of or disrespect for the court; (c) whether the purpose of making the orders might be defeated by laying a charge; and (d) whether the persons in whose favour the orders were made have applied or agitated for the laying of charges.

(5) In the present case: (a) the extent of non-compliance with the court’s orders is significant; (b) non-compliance is more a product of inefficiency and incompetence than a deliberate snubbing of or disrespect for the court; (c) the purpose of making the orders might be defeated by laying a charge; and (d) the persons in whose favour the orders were made have not applied or agitated strongly for the laying of charges.

(6) Having weighed those considerations, the court ruled that it would not charge anybody with contempt, but rather keep the question of compliance with the court’s orders under continuing review and consider making further orders to enforce the human rights of the applicants.

Cases cited

The following cases are cited in the judgment:

In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Lakiemata Correctional Institution MP No 813 of 2006, 09.10.06

In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (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

Peter Luga v Richard Sikani and The State (2002) N2285

Peter Luga v Richard Sikani and The State (2002) N2286

Richard Sikani v The State and Peter Luga (2003) SC807

Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533

The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303

Yap v Tan [1987] PNGLR 227

RULING

This is a ruling on whether persons who have not complied with court orders should be charged with contempt of court.

Counsel

O Oiveka, for the applicants

F Popeu, for the State

A Walne, for the Managing Director and Branch Manager of PNG Waterboard

C Wainge, for the Commissioner of the Correctional Service and the Jail Commander

A Amet, for the Provincial Health Adviser

16 February, 2007

1. CANNINGS J: This is a ruling on whether a number of public office-holders should be charged with contempt of court for failing to comply with orders of the National Court. I made the orders in response to an application for enforcement of human rights by seven detainees of Lakiemata Correctional Institution (“the applicants”). Two detainees, Michael Tavure Vele and Augustine Ailolo, had died of dysentery in the second half of 2006.

2. After hearing evidence in a special court hearing in Kimbe on 6 October 2006 I concluded that the water coming into Lakiemata Jail from the nearby Ru River was heavily polluted and not safe to drink or cook with. Bacterial levels were alarmingly high, showing heavy contamination of the water with faeces. The poor water quality had led to an outbreak of dysentery, many detainees had to be treated in hospital and two had died. The ablution blocks were in a bad state of disrepair, messing facilities were inadequate and this has increased the risk of diarrhoeal/dysenteric illnesses, especially when food handlers were infected. I concluded that the general level of health and hygiene in the jail was unacceptably low and this appeared to provide an environment ripe for an endemic of diarrhoeal disease, including cholera. The human rights of the applicants and other detainees were being breached, in that they were:

· being submitted to treatment inconsistent with respect for the inherent dignity of the human person contrary to Section 36(1) of the Constitution;

· not being given the full protection of the law contrary to Section 37(1) of the Constitution;

· not being treated with humanity and with respect for the inherent dignity of the human person contrary to Section 37(17) of the Constitution.

3. I made orders under Sections 57(1), (3) and (5) (enforcement of guaranteed rights and freedoms) of the Constitution to enforce the rights of the applicants and all Lakiemata detainees. (In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Lakiemata Correctional Institution MP No 813 of 2006, 09.10.06.) Earlier in 2006 I made similar sorts of orders regarding the conditions of detention at Bialla and Kimbe police lock-ups. Those orders have been complied with. (In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (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.)

THE ORDERS OF 9 OCTOBER 2006

4. The orders were directed to:

(a) the Managing Director of PNG Waterboard and the local Branch Manager of PNG Waterboard;

(b) the Commissioner of the Correctional Service and the Jail Commander; and

(c) the Provincial Health Adviser.

5. The orders stated:

1 The Managing Director of the PNG Waterboard and the Branch Manager of the PNG Waterboard at Kimbe must repair and install proper water treatment equipment at Lakiemata Jail, West New Britain, and ensure that the water is made fit for human consumption, within 10 days after the making of this order.

2 The Managing Director of the PNG Waterboard and the Branch Manager of the PNG Waterboard at Kimbe must thereafter maintain and service the equipment or enter into arrangements with the Correctional Service, the Provincial Health Office or some other responsible authority to do so, to ensure that a reliable supply of good quality drinking water is available within the Jail.

3 The Branch Manager of the PNG Waterboard at Kimbe must appear before the National Court at Kimbe on Friday 13 October 2006 and Friday 20 October 2006 and notify the Court of the steps taken to comply with order Nos 1 and 2.

4 The Commissioner of the Correctional Service and the Jail Commander of Lakiemata Jail must by Friday 20 October 2006, notify the National Court, of a plan of action to lift the health and hygiene levels in the Jail to an acceptable level and without limiting the generality of the foregoing, such plan must include:

(a) cleaning out both ablution blocks thoroughly;

(b) making both...