N417

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TOM AMAIU

V

THE COMMISSIONER OF CORRECTIVE INSTITUTIONS AND 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani
Bredmeyer J

24 November 1982
26 November 1982
14 December 1982
23-25 February 1983
2-4 March 1983
5-8 April 1983
15 April 1983

CRIMINAL LAW - Administration of prisons - Discipline and conduct of prisoners - Powers of Commissioner - Infringement of constitutional rights - What constitutes - Solitary confinement - Illegal punishments - Total ban on visitors etc. - Remedies for breaches - Order closing prison division - Constitution, ss 37(1), 57, 58 - Corrective Institutions Act, 1957 (Ch. No. 63) s. 46 - Corrective Institutions Regulations, reg. 111(3).

HUMAN RIGHTS - Fundamental rights - Protection of law - Prisoner detainees - Treatment which is cruel, inhuman, harsh and oppressive - Nature of rights - Solitary confinement - Illegal punishments - Total ban on visitors etc. - Remedies for breaches - Order closing prison division - Constitution, ss 37(1), 57, 58 - Corrective Institutions Act 1957 (Ch. No. 63) s. 46 - Corrective Institutions Regulations, reg. 111(3).

Section 111 of the Corrective Institutions Regulations made pursuant to powers contained in the Corrective Institutions Act 1957 (Ch. No. 63), provides that:

"(3) Where, in his opinion, it is necessary for the preservation of order and discipline in an institution, or for the good of the detainee or other detainees, the Commissioner may separate a detainee from other detainees of his class.

(4) The separation of a detainee from other detainees under Sub-s. (3) must not be of the nature usually known as ‘solitary confinement’."

On an application, by a prisoner confined in the "B" Division of the Bomana Corrective Institution, for enforcement of his constitutional rights and for damages, the prisoner complained inter alia of having been kept in solitary confinement, of being punished by doubling up, and of alleged infringements of constitutional rights in being deprived of visitors, newspapers, sport, radio, etc.

Held

(1) In the absence of validly made orders or general instructions issued by the Commissioner of Corrective Institutions for the discipline and conduct of warders and detainees pursuant to s. 46 of the Act, the treatment of prisoners in "B" Division is regulated by the Act and the Regulations made thereunder.

(2) The power of the Commissioner of Corrective Institutions under s. 111 "to separate and detain" includes a power to separately confine a prisoner either in a smaller prison or into cellular confinement as a preventative measure: it is not a power to punish.

(3) "Solitary confinement" which is not permitted under s. 111(3) means the confining of a prisoner by himself so that he is unable to see or talk to any fellow prisoner.
Sunil Batra v. Delhi Administration (1978) 65 All India Reports 1675, considered.

(4) A prisoner in a corrective institution has no rights to visitors, newspapers, sport, radio, etc., but he has an individual constitutional right to be treated in a way which is not cruel, inhuman, harsh, or oppressive, and which respects the inherent dignity of the human person.

(5) A total ban on visitors, newspapers, sport, radios, etc. constitutes a breach of the individual prisoners constitutional rights and is compensable.

(6) Punishment of a prisoner for breach of a prison rule by doubling up is not a method of punishment permitted by the Act or Regulations and is therefore illegal, and deprives the prisoner of the "full protection of the law" guaranteed to him as a prisoner by s. 37(1) of the Constitution.

(7) In order to give effect to the protection of the law guaranteed by s. 37(1) of the Constitution, the "B" Division of the Bomana Corrective Institution should be closed forthwith and remain closed until new regulations or standing orders are issued by the Commissioner under the Act and which provide for the treatment of prisoners within that division and which accord with the constitutional requirements.

(8) In the circumstances, the applicant should be awarded reasonable damages for the infringement of his constitutional rights and exemplary damages for the flagrantly illegal acts of solitary confinement.

Cases Cited:

Arbon v. Anderson [1943] K.B. 252; 1 All E.R. 154.
Sunil Batra v. Delhi Administration (1978) 65 All India Reports 1675.
Becker v. Home Office [1972] 2 Q.B. 407; 2 All E.R. 676.
Constitutional Reference No. 2 of 1978; Re Corrective Institutions Act 1957 [1978] P.N.G.L.R. 404.
Heni Pauta and Kenneth Susuve v. The Commissioner of Corrective Institutions (Unreported National Court judgment No. 337 dated April, 1982).
Williams v. Home Office (No. 2) [1981] 1 All E.R. 1211.

Notice of Motion

This was an application by an inmate of Bomana Corrective Institution seeking enforcement of constitutional rights and damages.

Counsel

B. D. Brunton, for the applicant.
J A. Ross, for the Commissioner of Corrective Institutions and the State.

15 April 1983

BREDMEYER J: This is an application by Tom Amaiu for enforcement of his constitutional rights and for damages. Amaiu is an inmate in "B" Division of the Bomana Major Corrective Institution — the country’s only maximum security prison. This is the first case of its kind. I have heard 21 witnesses, conducted a view of "B" Division and have received a host of documents tendered to me. The trial was conducted over 13 days.

I begin by describing the laws applicable to "B" Division and how the applicant has the right to bring this case. The relevant laws are found in certain sections of the Constitution, the Corrective Institutions Act and the Corrective Institutions Regulations. The relevant sections of the Constitution can be divided into two categories. The first is s. 37(1):

"37. Protection of the law

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences."

This subsection means that every aspect of treatment given to a detainee in "B" Division must be covered by a law which for practical purposes means a provision contained in the Corrective Institutions Act, Regulations or in the Commissioner’s Orders and Instructions. This constitutional provision means that no aspect or at least no major aspect of a prisoner’s treatment in "B" Division should be at the whim of the officer-in-charge of that Division or of any warder; the warders must treat a prisoner in accordance with the laws. If they fail to do so, the prisoner can seek redress under s. 57 of the Constitution which gives wide powers to the National Court and the Supreme Court to enforce fundamental rights provisions. Section 37(1) means that if some aspect of the prisoner’s treatment in "B" Division is not regulated by a law then the section has been breached. It also means that if there is a law on some aspect of prison treatment, and that law is breached by the prison staff, the prisoner can claim that he has not been given the full protection of the law and under ss 57 and 58 can get redress from the courts in the form of damages or an order compelling the warders to do something or ordering them not to do something. As will be seen later, Amaiu claims in this case that s. 111(4) of the Corrective Institution Regulations which prohibits treatment in the nature of solitary confinement has been breached and as such he is entitled to seek redress under the Constitution.

I mention here in passing that the Constitution places a prisoner in a much more favourable position than a prisoner in England whose rights are determined by the Common Law. In England if a prison rule is breached by the authorities, the prisoner has no right of action against the authorities. I quote from the two leading English cases on this point. In Arbon v. Anderson [1943] K.B. 252 at 255, Goddard L.J having said that the rules do not confer any rights on prisoners, observed:

"It would be fatal to all discipline in prisons if governors and warders had to perform their duty always with the fear of an action before their eyes, if they, in any way, deviated from the rules. The safeguards against abuse are appeals to the governor, to the visiting committee, and finally to the Secretary of State, and those, in my opinion, are the only remedies."

In Becker v. Home Office [1972] 2 Q.B. 407, at 418, Lord Denning M.R. said:

"If the courts were to entertain actions by disgruntled prisoners, the governor’s life would be made intolerable. The discipline of the prison would be undermined. The Prison Rules are regulatory directions only. Even if they are not observed, they do not give rise to a cause of action."

The second category of constitutional rights which apply to prisoners in "B" Division can be grouped together and I quote:

"36. Freedom from inhuman treatment

(1) No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person."

"37. Protection of the law

(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

"41. Proscribed acts

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act."

There is some repetition of phrases in the three subsections quoted and some of the phrases appear to be saying the same thing in a slightly different way. All of the phrases are very important because they are in the Constitution, our supreme law, but it is sufficient for my purposes if I select a few of them and say that treatment in "B" Division should not be harsh, oppressive, cruel or inhuman. If there is a prison law which is harsh or oppressive, a prisoner can have the law declared unconstitutional under these sections as an infringement of his fundamental rights. Similarly if a particular treatment which a prisoner receives in prison is harsh or oppressive then, even though it is not covered by a prison law, that treatment or practice can be stopped as an infringement of his fundamental rights.

Leaving aside the constitutional provisions, the particular laws which apply to "B" Division are found in the Corrective Institutions Act, the Regulations and Commissioner’s Orders. The Corrective Institutions Act was enacted in 1957 and brought into force in 1960. It is now Ch. No. 63 of the Revised Laws and I will be quoting from the revised version. All of the provisions in the Act apply to "B" Division as to all other institutions but there is nothing in the Act particularly relating to "B" Division. There is no reference to a maximum security institution. Section 2 refers to the Commissioner of Corrective Institutions. His powers are not unlimited. Section 2(1) provides that:

"Subject to this Act and to any directions of the Minister, the Commissioner is responsible for the management and control of all corrective institutions."

I have not been told of any relevant directions given by the Minister to the Commissioner, so the section means that the Commissioner is responsible for the management and control of the corrective institutions subject to the Act. The Act is comprised of forty-seven sections and I will mention some of them. Section 12 provides for visiting justices who are magistrates or in some cases kiaps who are appointed by notice in the gazette to visit Corrective Institutions at least once a month. Their duties are set out in s. 12 and they include inquiring into any abuse or irregularity within the prison, to hear any complaints made by detainees and to try visiting justice offences. The visiting justice offences are contained in s. 25 and they number forty. It is a very comprehensive list and it must surely cover every kind of mischief which a detainee can commit: indecent language, threatening language, insubordination, idleness, obstructing a warder, talking in the cells after 9.30 p.m., quarrelling with other detainees, secreting an article, refusing to eat the food, wilfully destroying food, damaging clothing, properties, attacking a warder or a fellow detainee, disobeying a lawful order of a warder, insolence, rudeness, subversive conduct and the like. A visiting justice magistrate is required to hear and determine any V.J charge and if satisfied that the detainee is guilty can sentence him to an extra term of imprisonment not exceeding one month and, if the offence is an aggravated one, an extra term of imprisonment not exceeding six months. There is no appeal from a V.J conviction and sentence given in the Act but an appeal to the National Court is allowed by virtue of s. 37(15) of the Constitution: see Constitutional Reference No. 2 of 1978; Re Corrective Institutions Act 1957, [1978] P.N.G.L.R. 404.
Section 47 of the Act enables the Head of State acting on advice to make regulations not inconsistent with the Act prescribing all matters that are necessary or convenient to be prescribed for giving effect to the Act and it lists ten such matters. I select four of those matters for mention here:

"...
(c) for providing for the proper management and control of corrective institutions ...;

(c) for providing for the discipline, management and safe custody of detainees;

(f) for providing for the classification of detainees and the treatment of each class;

(h) for prescribing the terms and conditions under which a detainee may earn a partial remission of his sentence."

Section 46 of the Act empowers the Commissioner to issue orders and general instructions for the proper conduct of corrective institutions and for the discipline and conduct of warders and detainees. The orders and general instructions issued may be of a general application or they may be limited to a specified corrective institution. Thus the Commissioner can issue special orders and general instructions relating solely to "B" Division. I consider that the Commissioner’s power under s. 46 is limited not only by the Act but also by the Regulations. Thus for example, if the Regulations fully provide say for the "classification of detainees and the treatment of each class" mentioned in s. 47(f), then there is no room for Commissioner’s orders and general instructions on that subject. In other words, I consider that there is a complete hierarchy of laws established and the orders and general instructions must comply with the Act and the Regulations. If the Commissioner issued an order which was inconsistent with the Act or Regulations, his order would be invalid. It would be invalid in the sense of ultra vires the Act and the Regulations but it would also be constitutionally invalid under s. 37(1).

There are detailed Corrective Institutions Regulations which were made in 1959 and came into force in 1960. I will be referring to them as set out at the rear of Ch. No. 63 in the Revised Laws. I propose to describe or quote the most important of the Regulations. Section 110 is headed "Classification of Detainees" and divides detainees into various classes: those who have not been convicted (i.e. remandees), those who are imprisoned for contempt of court or for failing to obey some civil order; those who are first offenders, those who have prior convictions, etc.

"s111. Separation of detainees

(1) As far as practicable, detainees of one class shall be kept separate from detainees of any other class.

(2) The Commissioner may, in his discretion, authorize the transfer of a detainee from one class to any other class.

(3) Where, in his opinion, it is necessary for the preservation of order and discipline in an institution, or for the good of the detainee or other detainees, the Commissioner may separate a detainee from other detainees of his class.

(4) The separation of a detainee from other detainees under subs. (3) must not be of the nature usually known as ‘solitary confinement’.

(5) The Commissioner may direct the separation, within a class of detainees, of detainees who:

(a) have not reached the age of 18 years; or

(b) have not previously been imprisoned; or

(c) have previously been imprisoned."

"s148. Newspapers

Subject to this Division, a detainee may each week, through the officer-in-charge, purchase or receive from outside the institution one newspaper approved by the Commissioner."

"s149. Magazines and periodicals

(1) A detainee may, through the officer-in-charge, subscribe to or receive from outside the institution a magazine or periodical approved by the Commissioner.

(2) Subject to s. 150, a magazine or periodical purchased or received by a detainee under this section may be retained by the detainee."

"s150. Censorship of newspapers, etc

An officer-in-charge may excise or obliterate from a newspaper, magazine or periodical purchased or received by a detainee under this Division any matter that the officer in charge thinks to be:

(a) inflammatory; or

(b) undesirable reading matter for a detainee."

"s151. Seizure of newspapers, etc

In the event of misbehaviour or misconduct by a detainee, the officer-in-charge may, in addition to any other penalty imposed on the detainee:

(a) seize all or any newspapers, magazines or periodicals in the detainee’s possession; and

(b) suspend, for such period as he thinks necessary, the right to purchase or receive newspapers, magazines or periodicals under this Division."

"s152. Libraries

The Commissioner may:

(a) make provision for the establishment and conduct of libraries at institutions; and

(b) determine the detainees by whom and the conditions on which books may be borrowed from the libraries."

"s153. Motion pictures

The Commissioner may:

(a) make provision for motion pictures to be shown at institutions; and

(b) determine the detainees by whom and the conditions on which showing of motion pictures may be attended."

"s154. Recreational games

An officer-in-charge may permit a detainee to take part in a recreational game."

"s155. Handicrafts

(1) An officer in charge may permit a detainee to manufacture handicrafts on such conditions as he thinks proper.

(2) Permission under subsection (1) may be withdrawn at any time on the ground of misbehaviour or misconduct by the detainee."

There is an important regulation dealing with remissions not contained in the Revised Laws. It is new s. 140 added by Statutory Instrument No. 16 of 1981 in force on 1 September 1981. The section introduced remissions for good conduct which had previously been in force but which were repealed in 1973. The reintroduction of remissions followed a recommendation made in the Report of the Commission of Inquiry into Disturbances in Corrective Institutions in Papua New Guinea (Prison Unrest) (1980) which was chaired by Mr. Arnold Joseph.

"s140. Remission of sentence

(1) For the purposes of subsection (2), the officer in charge shall, in respect of each complete month of sentence served by a detainee in excess of:

(a) in the case of a male detainee — three months; and

(b) in the case of female detainee — one month,

submit to the Commissioner a report of the behaviour of the detainee during the period to which the report relates.

(2) Subject to subsection (3), the Commissioner may, after considering a report submitted under subsection (1) and any other information that may be relevant, grant to the detainee, the subject of the report, a remission not exceeding:

(a) in the case of a male detainee — eight days; and

(b) in the case of a female detainee — ten days,

in the month of sentence to which the report relates.

(3) A remission shall not be granted in respect of:

(a) the period of any sentence imposed on a detainee in consequence of a conviction for escaping or attempting to escape from lawful custody; or

(b) that portion of a sentence which expires between the escape and recapture of a detainee who escaped from lawful custody; or

(c) the period of any sentence imposed on a detainee for a corrective institution offence or police or rural lock-up offence.

(4) Subject to subsection (3), in the case of a detainee who is in lawful custody on the date of the coming into effect of this Section, the provisions of subsections (1) and (2) apply in relation to the sentence served by the detainee prior to that date as they apply to the sentence to be served by him thereafter."

Section 140 confers a very real and powerful discretion upon the Commissioner. Remissions for good conduct are entirely in his discretion: they are not automatic. If the Commissioner receives a bad report on a prisoner from the officer-in-charge he is perfectly entitled to refuse the eight days remission for that month. A prisoner cannot insist that remissions be granted to him. For the English Common Law on this: see Zellick, ‘Is Remission Enforceable?’ 1980 Criminal Law Review 695. The withholding of remissions for good conduct is a way in which a detainee can be punished for misbehaviour. As will be seen later, it has never been used in "B" Division but the power is there for use nevertheless.

As I have said the Commissioner is empowered by s. 46 of the Act to issue orders and general instructions which can be general or which can relate to a specified institution. For brevity’s sake I will refer to this power to make orders and general instructions as a power to issue standing orders. I was tendered a 1977 document headed "Standing Orders for Maximum Security (‘B’ Division)" but I do not consider that those standing orders are standing orders as allowed by the section. The orders which I was tendered were made by the then superintendent at Bomana, Mr M. Y. Ososo; they were not made by the Commissioner. I consider them invalid. In any event the orders are largely out of date and are in no way comprehensive. The 1977 orders mainly relate to the duties of the warders. They prescribe in detail their procedures to patrol, to keep safe custody of the keys, to hand over the keys, to man the towers, to check the shotguns, be smartly dressed, and the like. There are only a few of the orders which related to the treatment of prisoners and some of those are well out of date; for example, one order refers to the detainee being unlocked and escorted to his work cell. There are in fact no work cells because no work is done there. The OIC of "B" Division, Richard Kunjip, who has held that position for two years was questioned about the 1977 standing orders and he said that some are in force and some are not. The whole tenor of his evidence was that these standing orders are not regarded as comprehensive rules for the treatment of prisoners in "B" Division. The orders are there, a copy is kept in the office, but they are not strictly followed; they are regarded as out of date and in no sense do they restrict or limit the way the OIC administers "B" Division. I propose to say no more about these rules because I consider that, because they were not made by the Commissioner, they are not binding on "B" Division at all. They should simply be ignored. Leaving aside the constitutional provisions I have quoted, the only written provisions which regulate the treatment of prisoners in "B" Division are the Corrective Institutions Act and Regulations. Other important aspects of the treatment of prisoners in "B" Division have been devised by the OIC or by his predecessor and continued by him but are not contained in any written law.

I wish now to describe in some detail the Commissioner’s powers in relation to "B" Division and to emphasize how limited they are and likewise how limited the powers of the OIC of "B" Division. I quote again the key provisions relating to "B" Division which are:

"s111 ....

(3) Where, in his opinion, it is necessary for the preservation of order and discipline in an institution, or for the good of the detainee or other detainees, the Commissioner may separate a detainee from other detainees of his class.

(4) The separation of a detainee from other detainees under subsection (3) must not be of the nature usually known as ‘solitary confinement’ ."

Acting under that section, when the Commissioner wishes to send a detainee to "B" Division, he signs an order for separate confinement. The form was tendered to me and it does not strictly comply with the subsection. The subsection gives three reasons for separation:

(i) for the preservation of order and discipline in the institution; or

(ii) for the good of the detainee; or

(iii) for the good of other detainees.

The form however only states the latter two reasons. But that is a minor matter. When the Commissioner considers a detainee should come out of "B" Division he signs an order for release from separate confinement. I consider that he has power to do so — the power to confine someone implies a power to release from confinement. Clearly then, the Commissioner has power to separately confine a detainee in "B" Division.

"B" Division should be contrasted with "A" Division. "B" Division consists of 45 night cells, 17 day cells and 15 shower/toilet cells. All prisoners in "B" Division are locked in a cell 24 hours a day apart from brief periods when they are in transit from one kind of cell to the other or when they are allowed exercise in the exercise yard. All prisoners, for example, visit the shower/toilet cells three times a day. "A" Division of Bomana Corrective Institution, like all other corrective institutions in Papua New Guinea, is an open prison. Prisoners are locked in at night in dormitories, they are unlocked during the day, they may work, but otherwise are free to move around and talk with one another during the day.

The Commissioner’s power under s. 111(3) is to separate a detainee from others of his class. It can be a separation out of a large open prison like "A" Division to a smaller open prison, or it can be a separation into cellular confinement like "B" Division. The Commissioner’s power under s. 111(3) is a power to separate, not to punish. Let me explain by an example. If a prisoner fights another prisoner in "A" Division he can be legally punished in one or more of three ways:

(1) He can be charged with a Visiting Justice offence under s. 25 of the Act and, if convicted, given extra imprisonment.

(2) Whether charged or not with a Visiting Justices offence the Commissioner, after receiving an adverse report from the OIC, may refuse his eight-days remissions for that month. That power is contained in s. 140 for the Regulations quoted above.

(3) He may lose a privilege, e.g. books or radio or sport. The power is implied in ss 148-155 of the Regulations quoted above. Those regulations all use the word "may" — "the Commissioner may" — which implies that those privileges may also be withdrawn for good reason.

Whether a detainee who fights another detainee is punished in one or more of those ways, or not, the Commissioner may decide for one of the three reasons stated in s. 111(3) that the detainee ought to be separately confined. Now a detainee who has received an extra month’s imprisonment from the visiting justice for fighting and maybe lost his remissions for that month as well, may understandably consider that his confinement to a cell resulting from the same incident is an additional punishment imposed on him by the Commissioner. Nevertheless the two things are legally distinct: the only permissible punishments are the three mentioned above. The separation into "B" Division is not a punishment for past misconduct but rather a security measure to protect against future misconduct. This means that the conditions of prisoners in "B" Division should, apart from the cellular confinement, be no worse than conditions in "A" Division. For the Commissioner to issue special standing orders for "B" Division and to provide a particularly harsh regime in "B" Division such as no work, no talking, no visitors, no books, no recreational games, no newspapers, no magazines, no movies, etc. would be illegal, as contrary to the Act and Regulations, which only provide for the three means of punishment which I have mentioned.

If a detainee misbehaves in "B" Division, if say he fights another detainee as they move to the shower block, he can be punished by one or more of three ways mentioned above. There is no power in the Commissioner to order some special confinement for the detainee within "B" Division either as a punishment or to prevent the misbehaviour happening again because the detainee is already in separate confinement. As will be seen later, the OIC of "B" Division has devised a system of special confinement within "B" Division for certain prisoners who are regarded as big troublemakers. This is a kind of imprisonment within an imprisonment and because the conditions in that special confinement are much harsher than those experienced by the other detainees in "B" Division it amounts to a punishment. For the OIC of "B" Division to impose his own form of special punishment for misconduct in "B" Division, or for detainees who come to "B" Division with bad reputations as troublemakers elsewhere, is ultra vires the Act and the Regulations which, as I have said, only allow for three forms of punishment. It is also ultra vires s. 37(1) of the Constitution because it is a form of punishment not regulated by the law. In other words, apart from the confinement in separate cells, conditions for detainees in "B" Division should be much the same as conditions for detainees in "A" Division. Indeed I go on to say in a later part of these reasons, there is a constitutional argument that conditions in "B" Division should be better than in those in "A" Division. If the authorities wish to establish a particularly tough regime for detainees in "B" Division, the Act would need to be amended. If, for example, the authorities wished to introduce a system of instant punishments for misconduct by detainees in "B" Division such as doubling on the spot 100 times, 50 push-ups, reduced rations, confinement in a totally dark cell for a certain period, or a number of lashings with a cane, in order that the very existence of this kind of ‘horror’ institution would strike fear in the hearts of the detainees in "A" Division and thereby promote their good behaviour, it would be necessary to amend the Act. It would also be necessary to ensure that any instant punishment devised was not cruel, harsh or oppressive, etc., which are prohibited by the fundamental rights sections of the Constitution I have already quoted. But here I am particularly concerned about the Act. To allow such instant punishments would require an amendment to the Act because at the moment a prisoner who misbehaves in any of the forty ways listed in s. 25 is entitled to have his misconduct judged and punished by a visiting justice magistrate, or to suffer no more than the loss of eight-days remissions or the loss of privileges. To reiterate the point I have been making, s. 111(3) provides for the preventive confinement of detainees. Punishment is not within the ambit of the Regulation. So for the Commissioner to devise, or to allow his OIC of "B" Division to devise, a regime for prisoners in "B" Division which is different from and much worse than "A" Division is outside the ambit of the Regulation. In this I respectfully follow what was said by Tudor Evans J in the English case of Williams v. Home Office (No. 2) [1981] 1 All E. R. 1211, at 1235. The English prison rule under consideration in that case, r. 43(1), is so similar to our s. 111(3) that it is worth quoting. To see its context I also quote r. 43(2) and r. 43(3) which have no equivalent in our Regulations:

"Rule 43 provides:

(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner’s removal from association accordingly.

(2) A prisoner shall not be removed under this rule for a period of more than 24 hours without the authority of a member of the board of visitors, or of the Secretary of State. An authority given under this paragraph shall be for a period not exceeding one month, but may be renewed from month to month.

(3) The governor may arrange at his discretion for such a prisoner as aforesaid to resume association with other prisoners, and shall do so if in any case the medical officer so advises on medical grounds."

It is of interest that the categories of prisoners who are separately confined by our Commissioner under s. 111(3) are similar to those who are separately confined under the equivalent rule in England. Our Commissioner said the detainees whom he confines fall into the following categories:

(1) a detainee who might attack other inmates.

(2) a detainee who might injure himself or commit suicide.

(3) a detainee who might attack the staff.

(4) a detainee who might damage government property.

(5) a dedicated escapist.

(6) a detainee who is a danger to the whole well-being of the Institution.

In this latter category are those who incite, instigate or plan things which could eventually cause a disturbance in the institution. The Commissioner said that the biggest category of those confined in "B" Division are those in category six whom I could call stirrers or instigators — the ones who upset prison discipline. I was surprised to learn that escapists are not a big category in "B" Division. The Commissioner explained that there are so many escapists, so many escapes in Papua New Guinea, that if all were confined to "B" Division or even all those who escaped from Bomana were confined to "B" Division then the place would not hold them all. So the normal procedure when an escapist from "A" Division is recaptured is that he is put back in "A" Division. The other categories of those who may physically harm themselves, other detainees and the warders are not numerically so many. An experienced prison officer in the Williams case, cited above, identified five categories of prisoner for whom separate confinement under the English r. 43 was necessary:

(1) The prisoner who is extremely violent to staff and other prisoners.

(2) The prisoner who is obsessed with his own innocence and he causes damage whenever left in the general prison community.

(3) The prisoner who attacks sex offenders who will not normally identify their assailant or testify against him at an adjudication.

(4) The prisoner who practises extortion by making loans usually of tobacco to other prisoners.

(5) The prisoner who constantly plots escapes and riots.

It would appear that the conditions in England for those who are separately confined to cells under the English rule are not appreciably worse than in the main prisons because out of an annual total of 2,600 who are separately confined, some 2,000 of them are separately confined at their own request. See Zellick, "Prison discipline and preventative confinement" 1981 Criminal Law Review 218.

The evidence on how a detainee gets out of "B" Division was given by the Commissioner and the OIC of "B" Division and was undisputed. There is no section of an Act or Regulations regulating when or how a detainee’s stay in "B" Division is reviewed. In terms of s. 37(1) of the Constitution there is no law governing how a person gets out of "B" Division. In practice the OIC of "B" Division periodically recommends the release of a prisoner from "B" Division. He submits a monthly report to the Superintendent on "B" Division but it does not necessarily mention names of detainees. He submits occasional reports on detainees whom he considers should be released. If he considers a detainee should stay then he does not report on him. The Commissioner receives any recommendation for release from the OIC and may in his discretion act on it. In addition the Commissioner on occasions has gone into "B" Division himself, seen a prisoner, and ordered his release from that Division. This administrative practice of occasional review of some detainees is inadequate and contravenes s. 37(1) of the Constitution. There must be a law providing for the periodic review of each prisoner’s confinement in "B" Division. There was medical evidence from Dr. Burton-Bradley, a psychiatrist, and Dr. Wohlfahrt, the Medical Superintendent of Port Moresby General Hospital, which I accept, that confinement in "B" Division under its present regime can lead to serious mental illnesses. I thought Amaiu and the witness Winch Roger were living proof of these medical opinions. Both had received psychiatric treatment. Amaiu was neurotic and tends to cry a lot. Roger attempted suicide in "B" Division and, although now released, is still under psychiatric treatment. In view of this evidence I consider the law regulating how a detainee gets out of "B" Division should give some say to the medical officer. Whether the doctor should have power to recommend or to order the release of a detainee from "B" Division on medical grounds I express no opinion. I consider for the law on the subject to be humane and not cruel, harsh, or oppressive the medical officer should have some say in the release of a person from "B" Division.

SPECIAL CONFINEMENT

There is abundant detainee evidence that there are two kinds of confinement or treatment in "B" Division, what I will call "general confinement" and "special confinement". The general confinement which applies to most prisoners in "B" Division is to be locked up in the night cells from 4 p.m. to 6.30 a.m. There are no lights in the night cells and there are only plastic bucket toilets without any lids. Some of the night cells have beds, some do not. In the morning the detainees are unlocked from the night cells and required to double down to the shower/toilet cells which are commonly known by detainees and the warders as the ‘circle’ because these cells are contained in a circle. They double down to the circle carrying their night soil bucket, a towel, soap and sometimes their spare pair of shorts. After completing their morning ablutions some remain in the circle for the rest of the day where they are given their meals, others double back to the day cells where they remain for the rest of the day apart from two further visits to the shower/toilet cells. So the detainees in this general category spend most of the day in the day cells or the circle. There is no work done in "B" Division so the only variation on this daily programme of inactivity is when they are allowed a shave and haircut and when they are allowed to exercise in the exercise yard. The exercise consists of running around the yard a few times and doing push-ups. No sport is played in "B" Division. No visitors are allowed. No magazines or newspapers are allowed and no radio is allowed. A Bible and library books are now allowed in "B" Division. Talking among prisoners is now allowed in "B" Division provided it is not loud.

The special confinement in "B" Division reserved for a few detainees is different from the general confinement in two major ways. The first is that the detainees in special confinement spend all of the daytime as well as the night-time confined in the night cells apart from three brief periods when they are allowed out for meals and ablutions. The night cells are dark during the daytime; the only window in each cell is high up and I do not consider that a detainee would be able to read in the cell during the daytime. There are cement walls separating one cell from another but there is a piece of Marsden matting in the front of each cell so since the "no talking" rule has been lifted detainees can see and talk to a detainee in the cell opposite. The detainees’ first preference for daytime confinement is in the day cells because those cells are shaded by a corrugated iron roof and they are enclosed on all sides by arcmesh or wire so that the fresh air circulates among those cells. The detainees’ second preference are the shower/toilet cells. These cells are bounded on three sides by concrete walls and on the front by iron bars but being arranged in a circle the detainee, by standing at the iron bars, can see a detainee in a cell two or three removed from him and can talk to him. The shower/toilet cells are quite clean, there is no offensive odour from them, the main draw-back from the detainee’s point of view is that they are not roofed and thus have no protection from the sun. The detainees’ third and last preference for daytime confinement is in the night cells. As I have said they are dark. It is only possible to talk to a detainee opposite, and with only six or seven locked up in those cells during the daytime, there may not be a detainee opposite; and the cells are permeated throughout the day as indeed throughout the night by the odour of faeces and urine. So confinement in the night cells during the daytime is much more unpleasant than the confinement in the day cells or the toilet/shower cells. Secondly, those detainees who are specially confined are only allowed three to five minutes for meals. This is because the practice is to feed these detainees first and then lock them up before allowing the other detainees out to feed. All the detainees in "B" Division are allowed out one at a time or perhaps in twos and threes from the night cells to the shower/toilet cells. This practice takes a considerable time. In order to speed up the overall time allowed for meals the practice is to allow only three to five minutes for those in special confinement for their shower, emptying their toilet bucket and eating their meal.

All of the detainee witnesses who were asked gave detailed and consistent evidence of the two main kinds of confinement in "B" Division.

All of those who were asked had first-hand experience of special confinement. Amaiu had two periods of it (four months and then five months), Winch Rodger (one year), John Tambai (11 months), John Pundari (approximately three years), Petrus Kanawi (three months), John Un (nine months), Sakumai Kuam (three months and two shorter periods) and Lipo Maima (a State witness) had six months in special confinement. This system of special confinement for troublemakers certainly existed when Amaiu came to "B" Division in July 1980. He was immediately placed in special confinement. The special treatment thus predates the appointment of Richard Kunjip as OIC of "B" Division in December 1980 but he has been a vigorous supporter of its continuance. I accept the Commissioner’s evidence that he had no knowledge of the two kinds of confinement until this court case; that he thought that all prisoners in "B" Division were treated in the same way.

All three warders who were asked admitted that the system of special confinement existed. [His Honour then considered the evidence thereon.]

SOLITARY CONFINEMENT

I am satisfied on the evidence that Amaiu was placed in special confinement for two periods, when he first came to Bomana from Laiagam from 14 July to 24 November 1980, and again on his return from Kerevat on 5 October 1981, to an unknown date in March 1982. Did those two periods of confinement amount to solitary confinement?
The separation of a detainee from others of his class which is permitted under s. 111(3) must by s. 111(4) "not be of the nature usually known as solitary confinement". There is no definition of solitary confinement contained in the Act or the Regulations. However when the Regulations came into force in 1960 the concept of solitary confinement was known to the law of Papua New Guinea. At that time judges in Papua and New Guinea had power to order that a sentence be served in solitary confinement. That power was given under s. 654 of the Criminal Code which then applied in each Territory. That section read:

"654. Solitary confinement

When an offender is sentenced to solitary confinement, the Court is required to give directions in the sentence as to the confinement, and may direct that the defendant be kept in solitary confinement, but not in darkness, for any portion or portions of the term of his imprisonment, whether it is with or without hard labour, not exceeding one month at any one time, and not exceeding three months in any one year."

That section put two limits on the solitary confinement. The word "solitary" is defined in the Concise Oxford Dictionary as "living alone, not gregarious, without companions, single, lonely, solo". A reasonable definition of solitary confinement would therefore be the confinement of a prisoner by himself without being able to talk to one or more fellow prisoners. As I have said it was previously allowed provided it did not exceed one month at a time and did not exceed three months in any one year and was not in darkness. That section was repealed in 1974 when the new Criminal Code was enacted. Thus the judges no longer had power to impose solitary confinement and that power which the judges formally exercised was not given to anybody else. Indeed the Commissioner in reg. 111(4) was expressly prohibited from separating detainees to result in solitary confinement. To assist me determine the meaning of solitary confinement, Mr Brunton referred me to a leading Indian decision on the point and on many other aspects of imprisonment: Sunil Batra v. Delhi Administration (1978) 65 All India Reports 1675. The National Court is entitled to look at the relevant decisions of other countries. Mr Brunton also referred me to Gour’s Penal Law of India (8th ed) (1966) a book found in the UPNG Library. That case and Gour’s book at 386 contain much interesting history on the origins of solitary confinement. Solitary confinement was a well-known 19th century punitive device. The theory behind it was that the feeling of loneliness induced by solitary confinement would have a chastening influence upon a man. He would feel the pains of solitary confinement, think about the wrongs he had committed, and resolve never to commit them again. It was also thought however that on the baser natures solitary confinement had no good effect at all. The punishment was reserved for hardened criminals and for crimes of particular atrocity or brutality. It was found in England that solitary confinement tended to send prisoners mad, so it was rarely awarded, and finally abolished in 1893. It lingered on in Papua New Guinea until 1974 and remains in India to the present time. I have been assisted by the discussion in that case of the phrase which confirms the view that I would have reached unaided by that case, namely, that solitary confinement is being unable to see and talk with at least one other prisoner.

During Amaiu’s two periods of special confinement he was in the night cell 24 hours a day apart from three meal and shower breaks of three to five minutes each. He was able to see other prisoners through the Marsden matting of his cell. He could see them walking along the corridor and could see the prisoner opposite if he too stood at the Marsden matting part of his cell. He could see prisoners in the shower cells where he also took his meals. But a rigid no-talking rule was then in operation in "B" Division. It remained in operation until July 1982. He was thus not allowed or able to talk to any other prisoners and that amounts to solitary confinement.

I consider that Amaiu was not in solitary confinement from March 1982, when he came out of special confinement, to July 1982, when the no-talking rule was abolished, because, although the no-talking rule persisted, being locked in the day cells, separated only by wire from the adjoining prisoners, on each side he probably had chances to whisper to them when the warders were not looking.

THE PRISON REGIME IN "B" DIVISION

[His Honour considered the evidence on the regime in the "B" Division and made the following findings:]

I find that the following matters occurred in "B" Division and I consider they infringed fundamental rights in that they were cruel, harsh, oppressive, did not respect the inherent dignity of the human person and were not warranted by or were disproportionate to the requirements of the particular circumstances of the particular case. I explain later in some detail why I consider these fundamental rights were infringed.

(1) Until July 1982 there was a strict no-talking rule in "B" Division. Although I heard no argument on the point I consider that this rule was probably illegal under the Act because s. 25(h) makes it an offence punishable by a visiting justice to talk after 9.30 p.m. This shows a clear legislative intent to allow talking before 9.30 p.m. If a prisoner was prosecuted for talking before 9.30 p.m. he would be acquitted. For a Superintendent or an OIC of an institution to impose a no-talking rule before 9.30 p.m. is thus ultra vires the Act. It is also an infringement of the fundamental rights I mentioned given by the Constitution.

(2) When in special confinement Amaiu was normally served his tea and wheatcake whilst holding his overnight slop bucket, towel and sometimes soap and pair of shorts, and was then made to double down to the shower/toilet cells. In so doing his tea often spilt.

(3) On many occasions Amaiu was given inadequate time to shower. Whilst in special confinement the normal time allowed for going to the shower/toilet cells, slopping out his slop bucket, having a shower, eating his meal, and returning to the night cells was three to five minutes. On many occasions the warder standing on the gang plank above the shower turned the tap off before Amaiu had a reasonable time to shower. This had two consequences: that he could not get the soap off his body and that he was forced to replenish his mug of tea and his billycan of water from the small flush tap which serves the toilet. This small tap is deeply recessed into the concrete wall and is six to eight inches above the Asian squat type toilet and it is obviously unhygienic to put a drinking vessel or water container in such proximity to a toilet.

The reasons for these practices mentioned in (2) and (3) above become apparent from reading the shift reports. Only one hour or so was allowed for each meal period and the practice was to take the detainees out one by one or sometimes in twos or threes from the night cells to the showers. It was therefore necessary to hurry to get the meal over in the allotted time. The shift reports show that the universal practice was to feed the specially confined detainees, usually numbering six or seven, first. It was thus necessary to rush to get them to the shower cells, fed, back to the night cells and locked up again before the other prisoners were brought out one by one. When the other prisoners were brought out one by one, their meals were served in the day cells and in the shower/toilet cells and they were then given as much time as they liked to eat their meals.

(4) There was a total ban on sport in "B" Division from 1981.

(5) There were no visitors allowed in "B" Division for the whole period covered by this case from July 1980 to the present.

(6) Warder Giblen used to swear at Amaiu.

(7) In 1981 Warder Giblen gave joke haircuts to Amaiu and to other detainees. His method was to cut their hair close with scissors and to shave several strips off the head in what used to be known as a Mohawk haircut leaving a strip of hair in the middle. On another occasion he shaved the head of detainee Sakumai Kuam in a circle leaving a tuft of hair in the middle and explained that the tuft of hair left in the middle represented Manus Island — Sakumai being a Manus man.

(8) There was a total ban on newspapers and magazines.

(9) There was a total ban on private radios in "B" Division and no government radio after 14 February 1982.

(10) No lids were supplied to the plastic buckets used as toilets in the night cells.

(11) Amaiu was supplied with a mosquito net but no string so that it could not be hung.

The above matters all breach the fundamental rights which I have mentioned and I give further reasons for that view in a moment. The following matters were not proved or did not breach fundamental rights:

(1) The applicant alleged that he and other detainees were required to strip naked for an evening body search which was a visual search to see that no objects were concealed about their bodies. The warders all denied this; they said the way they searched a prisoner before being locked up for the night was to require him to hold his laplap loosely about his body and then to shake himself. It is not necessary for me to resolve this conflict of evidence for I consider that even if the method of search used involved a twirl around by the naked detainee in front of a warder I would regard that as necessary and not an infringement of fundamental rights.

(2) It was alleged that the total ban on movies in "B" Division was an infringement of fundamental rights but I do not agree with this argument. I consider there are logistic problems in showing movies in "B" Division which would be difficult to overcome.

(3) It was alleged that Amaiu was denied adequate medical treatment in "B" Division. I find this allegation unproved....

I wish to explain my ruling on some of the matters listed above. Regulations 122 to 127 relate to visitors. Detainees may have one visitor, or in a case of family visitors more than one visitor; the visit can last half an hour. Certain categories of prisoners may receive a gift package from a visitor on Christmas Day and Easter Day. The policy in "A" Division, and I believe in all the Corrective Institutions in Papua New Guinea apart from "B" Division, is to allow weekly visits which are much appreciated by the prisoners. Visitors were allowed in "B" Division until 1979, the prisoners used to be taken to "A" Division by vehicle where proper facilities exist for visitors, for the Sunday visits. Visitors to "B" Division were stopped after the Rooney disturbances in 1979 by the former Commissioner and present Commissioner who took office in mid-1980 has continued that policy. There is thus a total ban on visitors in "B" Division. I consider that as inhuman, harsh, oppressive and not warranted by the circumstances of the case. The reason is that the normal regime or treatment of prisoners in "B" Division is harsh. There is abundant evidence that it can be and has in some cases led to mental disturbances and illnesses. Even the general confinement practised in "B" Division amounts to confinement in the night cells for the night period which commences at 4 p.m. and lasts for 15 hours plus nine hours confinement in the day or shower/toilet cells. I consider that this general confinement as it is practised now without any privileges or amenities, apart from library books and occasional exercise, is a breach of the fundamental rights in that it is harsh, oppressive, not justified by the circumstances, etc. Allowing visitors is one of the ways in which harshness of that confinement can be mitigated; one of the ways in which treatment which is unconstitutional because it is harsh and oppressive, etc. can become reasonable and humane and thus constitutionally valid. I have heard no arguments on whether a detainee has a right to receive family visitors or whether it is a privilege. I assume for the purposes of this case in favour of the Commissioner that the detainee has no right but only a privilege to see visitors. That being so I see no constitutional objection to the Commissioner allowing visitors dependent on the detainee’s good behaviour. This can be done in one of two ways. The first is that the frequency of visits allowed can be increased dependent on good behaviour, for example, monthly visits for the first three months, fortnightly visits for the next three months and then weekly visits depending on progressively good behaviour. A system whereby a prisoner progresses from fewer privileges to more privileges is quite common in gaols and is useful as a method of discipline. It is a way of granting positive incentives or rewards for good conduct thus reinforcing good conduct. The second way is to allow visitors on a regular basis and to withdraw that privilege on occasions if a particular prisoner misbehaves in some way. But the withdrawal of the privilege of having visitors must be restricted to a particular prisoner. The total ban on all visitors for all prisoners because one or more detainee’s misbehaviour is harsh and oppressive to the other detainees who have not misbehaved.

Regulation 154 provides that the OIC may permit a detainee to take part in recreational games which for the moment I will call "sport". Sport for detainees thus lies in the discretion of the OIC. But his discretion must be exercised in a way which is not inhuman, cruel, harsh or oppressive and must respect "the inherent dignity of the human person" and must not be "disproportionate to the requirements of the particular circumstances of the particular case". The OIC Kunjip said that sport was banned in "B" Division in 1981 whilst he was on leave due to an argument that occurred in a six-a-side volleyball game and that he has continued the ban ever since. Other detainees said that sport was banned in "B" Division before that date. Winch Rodger, who was a detainee pre-1979, says that sport was banned at the time of the Rooney affair, September 1979. Sakumai Kuam, another long-term detainee, said that sport was banned in "B" Division by OIC Kunjip in 1980. In view of the fact that Kunjip took up duty in December 1980 this appears incorrect. Accepting Kunjip’s evidence on the date of the ban I consider that a total ban on sport because of misbehaviour in 1981 infringes the fundamental rights of the 1983 inmates of "B" Division many or most of whom were not there in 1981. As I have said above in relation to visitors, the 24-hour a day cellular confinement in "B" Division with no amenities whatsoever is inhumane, harsh and oppressive. That condition can be mitigated, among other ways, by allowing the detainees to play sport. It is a privilege to play sport and the Commissioner can regulate that privilege so that it is a privilege which must be earned by good conduct or it is a privilege which can be withdrawn following misconduct.

The phrase "recreational games" used in reg. 154 would include chess and draughts. To allow prisoners the privilege of playing those games, perhaps when locked two to a cell in the day cells and to withdraw that privilege from time to time for misbehaviour would be a humane way to help mitigate the otherwise harsh regime of "B" Division. It would also be an incentive for good conduct from the prisoners. Prisoners would have to buy the sets themselves.

The same remarks I made in relation to sport and recreational games apply to newspapers and magazines. I have already quoted the regulations relating to newspapers and magazines which apply to all Corrective Institutions in the country. Newspapers and magazines were allowed in "B" Division prior to the Rooney disturbances in late 1979. I consider that total ban on all newspapers and magazines for all prisoners in "B" Division as inhumane, harsh and oppressive. The Commissioner was concerned that he did not have funds for newspapers and magazines but neither the regulations nor the Constitution require the government to supply them. The regulations contemplate that the prisoner has to pay for them. A detainee should be allowed to purchase a newspaper once a week, and magazine or periodical approved by the Commissioner. Or voluntary agencies could be allowed to donate old newspapers and magazines. Section 151 expressly allows the OIC to seize newspapers and magazines in the detainee’s possession or suspend his right to purchase or receive newspapers and magazines for misconduct. Even without that regulation I would imply into the power to grant a privilege the power to withdraw it on occasions for misconduct. The power to seize newspapers, etc. given by s. 151 appears adequate for the OIC to prevent newspapers getting to detainees at times of national crisis or at times of prison disturbances.

I consider that to ban all private radios in "B" Division from all prisoners for all time is inhumane, harsh and oppressive. As I have said before the normal cellular confinement in "B" Division without any amenities whatsoever is harsh and oppressive. To allow a private radio to a detainee to entertain and inform him of outside events is one way of making that harsh treatment humane.

I wish to make a few general points about privileges. A detainee has no constitutional rights to visitors, to play sport, to have a newspaper, a magazine and a radio. That is over-simplification of what I am saying and I do not wish to be misunderstood. A prisoner has a constitutional right to be treated in a way which is not cruel, inhuman, harsh or oppressive and which respects the inherent dignity of the human person, etc. The normal cellular confinement in "B" Division such as exists at present and has existed over the past three years, which is approximately the period covered by the evidence heard in this case, breaches those fundamental rights in a number of ways which I have elaborated. To make the treatment in "B" Division humane and not cruel and not oppressive requires the intelligent exercise of the Commissioner’s discretion in relation to privileges. So although a prisoner does not have a constitutional right to have a newspaper in "B" Division, for example, he does have a constitutional right to be treated in a humane way, and the total ban on all newspapers for all prisoners for all time in "B" Division is a breach of his constitutional right. And the same remarks apply to the total ban on all visitors, radios, sport, magazines and the like.

The Commissioner is concerned about the cost of these privileges. He says there are no funds or there are only limited funds for these items but none of my findings on these privileges require any funds. The prisoners and or the voluntary agencies such as the Prison Fellowship and the Churches can pay for them. Then the Commissioner is concerned that if he grants the privileges to "B" Division, the word will get out to "A" Division at Bomana and to all other Corrective Institutions in the country, and all the prisoners will clamour for the same privileges, and that he will be forced to grant the same privileges to other institutions. I do not agree with this argument. These privileges are especially needed, they are constitutionally needed in "B" Division, because the normal prison routine there, being confined in the cell 24-hours a day with no work to do, is harsh and oppressive. So to grant some or all of these amenities is constitutionally necessary to make confinement in "B" Division humane. It is probably not necessary to grant those privileges in the other institutions where the prison routine is much easier on the prisoners, where they are only locked up at night and are free to move around and mix in the daytime and have the opportunity to work. In other words, there is a constitutional necessity to grant these privileges in "B" Division which does not exist in "A" Division and in the other Corrective Institutions. The granting of the privileges can be dependent on good conduct and the privileges can be withdrawn following bad conduct.

To turn aside from the constitutional aspects of privileges I wish to say that the intelligent granting and withdrawal of privileges are important for the discipline and good order of a prison. There are two ways to promote good conduct of prisoners, one is to reinforce their good conduct and the other is to punish their misconduct. The total granting or withdrawal of a privilege, to or from all prisoners for all times, achieves very little. The total granting of a privilege probably makes the detainees happier with the warders and more cooperative for a while, then its effect wears off. The only effective way to use privileges is to grant and withdraw them according to certain designated rules and not arbitrarily at the whim of an individual OIC or a warder. The granting and withdrawal of privileges should be largely to individual detainees. I think that the Constitution requires that, the fundamental rights given there are to individuals. Also to promote good conduct from prisoners the granting and withdrawal of privileges should be on a personal basis, for example, to ban all library books in "B" Division because one detainee misused the privilege by trying to smuggle letters out in a returned library book can only produce an attitude of resentment by the other detainees towards the staff. Since July 1980, which is the period covered by the evidence I have heard, there has been no use of privileges in this way. There is either been a total ban on privileges or the total granting of a privilege such as the introduction of library books. The failure to use privileges as a means of promoting good behaviour is dramatically illustrated by the warders attitude to remissions. Remissions for good conduct were reintroduced in 1981 and I have already quoted reg. 140 in full. Regulation 140(1) says the officer-in-charge shall submit to the Commissioner a report of the behaviour of the detainee for each month. This has never been done in "B" Division. The reports are not done and no prisoner in "B" Division in recent years has lost his remissions. Remissions for good conduct are granted automatically to ail prisoners in "B" Division. The Commissioner and OIC have never forfeited the remissions of a prisoner in "B" Division in recent years. They are not using this important disciplinary power in the way in which it was intended.

TWO ASSAULTS

This action was by notice of motion for the enforcement of constitutional rights. There were no pleadings as in an action commenced by writ of summons, but at the outset Mr. Brunton, counsel for the applicant, supplied particulars of the allegations and of the case he sought to prove. The particulars of assault read:

"During the period October 1981 to March 1982 he was beaten up three times by Assistant Correctional Officer Giblen, the beatings consisted of punches and kicks and resulted in the applicant’s eye swelling up."

No better particulars were sought by the State. Although these particulars refer to three assaults, evidence was led on two assaults in the period and a forcible doubling up of Amaiu by Giblen on an unspecified date in April 1982.

[His Honour considered the evidence finding that the applicant had failed to prove his case.]

DOUBLING UP AS A PUNISHMENT

[His Honour considered the evidence and concluded:]

I therefore find that Giblen did double up Amaiu until exhausted as a punishment for breaking the no-talking rule. There was and is no law applicable to detainees in "B" Division allowing a warder to punish a detainee for breach of a prison rule by doubling up. The only way allowed by law to punish a detainee in "B" Division transgression is:

(1) to charge him with a Visiting Justice offence under s. 25 of the Act and have that charge heard by a visiting justice magistrate; or

(2) recommend to the Commissioner that the detainee lose his remissions for good conduct which he would otherwise earn for that month; and

(3) the withdrawal of one or more privileges.

Because Giblen illegally punished Amaiu by doubling up the latter was deprived of the "full protection of the law" guaranteed to him as a prisoner by s. 37(1) of the Constitution. By ss 57 and 58 of the Constitution I am required to enforce and protect the fundamental rights given in the Constitution and I do that by awarding K50 damages to Amaiu together with K50 exemplary damages. In awarding the latter I am following the decision of the Chief Justice in Heni Pauta and Kenneth Susuve v. The Commissioner of Corrective Institutions (No. 2) (unreported judgment No. 337 of 1 April 1982). Exemplary damages are in order because I consider Giblen knew that he was acting illegally; that is why he denied it.

THE CLOSURE OF "B" DIVISION

What orders should I make to give effect to my rulings above. The powers given to me by ss 57 and 58 of the Constitution are comprehensive and adequate. By s. 57(3) I can "make all such orders and declarations as are necessary or appropriate for the purposes of the section". By s. 58(2) a person whose fundamental rights are infringed is entitled to reasonable damages and if the court thinks proper exemplary damages in respect of the infringement. Mr Brunton seeks an order transferring Amaiu out of "B" Division, not necessarily into "A" Division, indeed anywhere so long as it is out of "B" Division. I can readily make that order and a series of orders guaranteeing the rights given by ss 36(1), 37(1) and 41 — that the practice of singling out some detainees for daytime confinement in the night cells cease, that visitors be allowed, that lids be supplied to the plastic toilet buckets, etc. But those orders would do nothing to ensure compliance with s. 37(1), that prisoners are entitled to have their treatment in prison regulated by law. To comply with that section of the Constitution, new regulations must be passed by the National Executive Council relating to "B" Division or the Commissioner must issue standing orders for "B" Division in each case covering the whole treatment of a prisoner in that division. The regulations or standing orders will need to state how a detainee gets out of "B" Division. There should be a compulsory review of his confinement at specified intervals to examine that the original reason for his separate confinement is still valid. A doctor should be given some role in that review process in view of the risk of mental illnesses to detainees which can arise through a lengthy cellular confinement. The regulations or standing orders should cover the confinement in the different kinds of cells, how many hours the detainees are to be confined in the night cells, how many to a cell, whether or not meals are to be served in the shower/toilet cells, doubling, the length of time permitted for showers and the like. The new rules must also comply with the fundamental rights provisions of the Constitution; they must be humane, not harsh or oppressive, etc. If and when the new regulations or standing orders are drafted the government may, if it wants to, get an advisory opinion from the Supreme Court under s. 19 of the Constitution on the constitutional validity or otherwise of those rules. I consider that the appropriate order I should make to ensure compliance with s. 37(1) of the Constitution is that "B" Division be closed forthwith and remain closed until new regulations or standing orders are issued. I order all the prisoners in "B" Division to be transferred out of it by 4 p.m. today and I order "B" Division to remain closed until new regulations are made and brought into force or new standing orders are issued by the Commissioner under s. 46 of the Corrective Institutions Act describing in detail how an inmate gets out of "B" Division and the treatment of inmates within that Division.

Old habits and old practices die hard. Warder Felix Andaripo has worked ten years in "B" Division, Andrew Andehika has worked there nine years, Mindey Oiye seven years, Giblen Jiputo six years and Richard Kunjip over two years. I order that these men and all warders who have served more than one year in "B" Division be barred from serving in the new "B" Division (when it reopens under the rules) for a period of two years from the commencement of the new Rules.

DAMAGES

I am empowered under s. 58(2) of the Constitution to award Amaiu reasonable damages for the infringement of his constitutional rights and I consider he deserves them. He suffered considerably through the infringement of his constitutional rights, he was locked up for two periods totalling nine months or about 285 days in solitary confinement. He suffered constantly from the stench of his and his neighbours’ toilet buckets because they had no lids, he was wrongly denied visitors, he was wrongly denied the privileges of sport, radio, newspapers, and magazines. He was given some joke haircuts. At times he was made to double with his cup of tea, wheatcake and slop bucket so that his tea spilt, on occasions the warder turned the shower off prematurely and he was left with soap on his body and was forced to get his drinking water from the tap which serves the toilet. He cried a lot, he considered suicide, he was given psychiatric treatment on several occasions at Laloki, he was and is in my view still neurotic. I have received numerous medical reports on his mental condition.

As I have said above I consider that he was lawfully confined to "B" Division so I have to consider the additional anguish and unpleasantness he has suffered in solitary confinement and through the breach of various fundamental rights compared to what he would have suffered had he been kept in "B" Division with no infringment of fundamental rights. I consider K10 per day, 285 x K10 = K2,850 compensatory damages appropriate for those two periods in solitary or special confinement.

From March 1982 to today (15 April 1982) Amaiu was kept in general confinement in "B" Division, in the day cells during the day and in the night cells during the night. During this period his fundamental rights were infringed a number of ways: toilet stench at night, no visitors, no sport, no radio, no magazines, no newspapers. There were however some changes for the better during that period which meant that his fundamental rights were infringed in fewer and fewer ways. For example, the joke haircuts stopped at the commencement of this period in March 1982 and the no-talking rule was abolished in July 1982. Again I have to consider the anguish and distress Amaiu suffered in this period because of the infringement of his fundamental rights in a number of ways compared to what he would have suffered if he was in "B" Division enjoying all his fundamental rights. I could think of a daily compensatory sum and reduce it on each date when an unconstitutional practice, for example, the joke haircuts, or the no-talking rule, was stopped. Rather than do that I take into account the various improvements in his treatment and consider overall average compensatory damages of K4 a day appropriate for this period. The figure comes from say 5 March 1982, to 15 April 1983, is 406 days at K4 equals K1,624.

EXEMPLARY DAMAGES

Section 58 allows me to award exemplary damages. They are appropriate where there has been a deliberate or flagrant misconduct by the officials. The Chief Justice Sir Buri Kidu awarded exemplary damages of K1,000 to two detainees who were beaten by warders in Bomana in December 1981 and wrongly confined to "B" Division for two and a half months when, as unconvicted men, they should have been held in the remand section of Bomana. See Re Heni Pauta and Susuve (No. 2) (unreported National Court judgment No. N337, of 1 April 1982).

I propose to award exemplary damages in respect of one matter only, the confinement of Amaiu to solitary or special confinement for the two periods mentioned, 14 July to 24 November 1980 and from 5 October 1981, to March 1982, were flagrantly illegal acts. The confinement was done by the OIC of "B" Division as a particularly unpleasant treatment for Amaiu who was regarded as a major trouble-maker. The OIC had no legal authority to do that and he did it without the authority or knowledge of his Commissioner. I do not expect a warder to know the fundamental rights provisions of the Constitution and how they impinge on the Corrective Institutions Act and Regulations or on the treatment of prisoners, although after the case of Re Heni Pauta and Susuve and after this case some knowledge of that relationship can be expected. But I expect the OIC of "B" Division, a senior officer in the Correctional Service, to know his Act and Regulations. I consider that he must have known that, in ignoring the legal methods of punishing Amaiu and resorting to a method not covered by the Act and Regulations, he was acting illegally. I therefore award K1,000 exemplary damages in respect of each period of unlawful solitary confinement. I consider that the other practices in "B" Division which infringe constitutional rights were not deliberate. Many of the practices such as the lidless toilet bucket were not covered by any regulation or standing orders and therefore the warders probably did not know their actions were illegal. The Commissioner could not have known that the blanket refusal of visitors, newspapers, sport, radio, etc. breached the Constitution. He undoubtedly knew that the granting of those privileges was in his discretion and could not have anticipated my ruling on the constitutional invalidity of the total ban on those privileges.

I have considered granting damages personally against those who have breached the Constitution, principally the OIC Kunjip and Warder Giblen. I have power to do so under s. 58 but consider that I cannot because on natural justice grounds those two men were not named as defendants in this case and therefore have not been given an opportunity to be legally represented and to be heard as defendants although, of course, I have heard them as witnesses for the State.

The total damages granted to Amaiu are:

Doubling up punishment K 100.00 
Compensatory damages for solitary confinement 2,850.00 
Compensatory damages for infringement of constitutional rights during his latter period "B" Division 1,624.00 
Exemplary damages 2,000.00 
Total: K6,574.00 

I order the State to pay these damages forthwith into Court. I order that the damages are not to be paid out to Amaiu until further order by me. The State may apply to have these damages offset against money Amaiu owes or may owe to the State under a judgment for K29,106.95 made against him on 17 October 1979, in action W.S.570 of 1979.

I grant the costs of this application to the applicant.

Judgment and orders accordingly.

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Lawyer for the applicant: B. D. Brunton.
Lawyer for the Commissioner and the State: Secretary for Justice.