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In re ss 37(1), 37(17), 37(18) of the Constitution [1989] PGNC 25; N786 (11 November 1989)

N786

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER of ss 37(1), 37(17), 37(18) of the Constitution and in the matter of Regulations26, 27, 29,116 of the Corrective Institution Regulations; And section 12 Corrective Institution Act, Ch No.63

AND

IN THE MATTER of the Visiting Justice inspection of Bomana Corrective Institution 28th September 19189

Brunton AJ
November 11, 1989

CONSTITUTIONAL LAW- Constitutional National Goals and Directive Principle ss 3(7), 5 37(1), 37(17), 37(18) – Corrective Institution Act s 12 – Corrective Institutions Regulations 26, 27, 29, 116, -Visiting Justice – visiting Medical Officers – prisoners rights to humanity and inherent dignity of the human person – rights of accused persons to be separated from convicted persons.

Order: the State is to show cause, before me or another Judge of the National Court, why declarations and orders should not be made against it to ensure compliance with the Corrective Institutions Regulations and the Constitution.

CASES CITED:

Tom Amaiu v. Commissioner of Corrective Institutions [1983] PNGLR 87, 88-89.

STATUTES:

Corrective Institutions Act Ch. No. 63: s12
Constitution: ss 37(1), 37(17) 37(18)
Corrective Institutions Regulations: 26, 27, 29, 116.

REASONS

On Thursday the 28th of September 1989 I made a Visiting Justice inspection of the Bomana Central Corrective Institution.

An examination of kitchen and ration-store facilities revealed that inmates were not been fed in accordance with the scale of rations set out in the Corrective Institution Regulations. The ration- scales under Regulation 116, that by law, must be given to inmates of Corrective Institutions are as follows - :

The state of the B Compound Ablution in the juvenile facility were totally unhygienic. There were shower facilities without washers, and water running. The toilets were filthy and stank There was no evidence of disinfectant or other cleansing materials being made available to clean these facilities.

The condition of the kitchens in B Block was poor. There was no flywire and consequently the food preparation area was filthy. The paintwork were decayed and covered in soot. These facilities were not unhygienic.

Both in the Juvenile Section and the Remand Section there was a lack, or total absence of beds. There were no beds at all in the juvenile section. There was a shortage of beds in proper repair in the Remand Section. Plywood was needed, in some cases, to repair metal bed frames, so as to render them serviceable.

In the Juvenile Section convicted juveniles were housed in the same facilities as unconvicted juveniles. All slept on the floor, and as has been stated, the ablution facilities (toilets and showers) stank and were filthy.

The Corrective Institution authorities at Bomana told me that they have the manpower resources available to carry out maintenance work, but funds were not available to purchase materials. I believe this to be only partially true, because the deterioration in these facilities points as much to inadequate management and supervision as it does to lack of materials. It was obvious that inmates were not supervised in the cleaning of toilets. Nevertheless the general assertion that there were no funds for cleaning materials would appear to have some basis, as no materials were seen during the inspection.

Although it was requested, the Register of the Visiting Medical Officer could not be located, indeed it was said not to exist at all. This contravened Regulation 29.

Regular visits by Dr. Taufa and Brother Andrew did take place when they consulted with their patients, but the duties imposed upon Visiting Medical Officers under Regulations 26 and 27 were not being carried out.

The Visiting Medical Officer, under Regulation 26 has a responsibility in relation to hygiene and public health within Corrective Institutions. Regulation 26 states

"(1) The Visiting Medical Officer of an institution shall –

(a) as far as practicable, at least once a month visit and inspect the institution and examine the detainees, the cooked and uncooked food, the clothing and bedding and the premises; and

(b) when –

(i) required by the Commission; or

(ii) he thinks necessary,

examine the assistant correctional officers at the institution; and

(c) at the conclusion of each inspection and examination, enter in the Medical Register any observations that he thinks proper with regard to –

(i) the condition of the buildings; and

(ii) the quantity and quality of the food, water, clothing and bedding; and

(iii) other matters concerning the health of detainees"

Prima facie the Visiting Medical Officer at Bomana appears to have been in neglect of the duties imposed by this Regulation.

Prima facie, the inspection revealed a number of breaches of the Corrective Institutions Regulations which are amenable to court orders these relate to - :

(a) the supply of fruit and vegetables;

(b) the regularity of visits by the Visiting Justices;

(c) the regularity of visits by the Visiting Medical Officers.

Section 37(1) of the Constitution specifically extends the right to the "Protection of the Law" to persons in custody Tom Amaiu v. Commr of Corrective Institutions [1983] PNGLR 87, 88-89.

The lack of maintenance and general filth of ablutions, toilets and kitchen facilities, and the absence of beds, appeared to contradict rights that rest in the inmates of Corrective Institutions to be treated humanely and in a dignified manner under s 37(17) of the Constitution.

The incarceration of convicted and unconvicted juveniles in the same facility appears to contradict specific obligation imposed upon the State by the Constitution (s 37(18)) to separate convicted offenders from unconvicted offenders.

The Visiting Justice Register maintained under Regulation 29 of the Corrective Institution Regulations showed that the last visit by a magistrate occurred in May 1989. The Regulations are quite explicit: magistrates must visit Correction Institutional facilities within their areas of jurisdiction once a month (Corrective Institution Act s 12). If the Visiting Justice cannot make a monthly inspection then the matter is to be reported to the Judicial and Legal Services Commission to enable a new Visiting Justice to be appointed. There was a certain amount of cynicism amongst detainees about the vale of the Visiting Justice as an institution. The general view was that the visits did not result in any changes, although discrepancies were all apparent.

Accordingly, I order that the State show cause before me, or another judge of the National Court, why declarations and orders should not be made against it to ensure compliance with the Corrective Institutions Regulations and the Constitution.