N4478

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 726 0F 2006

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS AND HUMAN RIGHTS UNDER
THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
SECTION 57 AND THE CONSTITUTION OF THE AUTONOMOUS REGION OF BOUGAINVILLE, 
SECTION 183

RE CONDITIONS OF DETENTION AT BUKA POLICE LOCK-UP,
AUTONOMOUS REGION OF BOUGAINVILLE

Buka: Cannings J
2006: 25 August

REASONS FOR DECISION

HUMAN RIGHTS – conditions of detention for detainees – prisoners and remandees – police lock-up – need for conditions of detention to comply with constitutional requirements – Constitution of the Independent State of Papua New Guinea, Section 36: freedom from inhuman treatment – Section 37: protection of the law – Constitution of the Autonomous Region of Bougainville, Section 178: basic rights.

CONSTITUTIONAL LAW – Basic Rights – enforcement of basic rights – Constitution of the Independent State of Papua New Guinea, Section 57: enforcement of guaranteed rights and freedoms – Constitution of the Autonomous Region of Bougainville, Section 183: enforcement of guaranteed rights and freedoms – power of National Court to enforce human rights – National Court shall protect and enforce rights on application or on its own initiative.

A Judge conducted an official visit of a police lock-up, received complaints of human rights breaches from detainees and inspected the conditions in which the detainees were held. The Judge made orders to remedy the conditions of the lock-up, using the powers of the National Court under Section 57 of the National Constitution and Section 183 of the Bougainville Constitution.

Held:

The Buka police lock-up is a health hazard to the detainees and everyone working nearby. Detaining any person there for more than a short period amounts to treatment that is cruel and inhuman and inconsistent with respect for the inherent dignity of the human person contrary to the human rights guaranteed to all persons under Sections 36(1), 37(1) and 37(17) of the National Constitution and Section 178 of the Bougainville Constitution. 

(1)	The National Court has a duty to enforce the basic rights guaranteed by the Constitution. That duty was exercised by the making of orders under Section 57(3) of the National Constitution and Section 183(3) of the Bougainville Constitution.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
In the matter of applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969
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

ENFORCEMENT OF BASIC RIGHTS AND HUMAN RIGHTS

This is an enforcement of basic rights, also known as human rights, by the National Court acting on both application and its own initiative.

Counsel

P Kaluwin, for the applicants
R Luman, for the State

INTRODUCTION

1. CANNINGS J: This judgment gives my reasons for deciding to exercise the power of the National Court under 57(3) of the National Constitution and Section 183(3) of the Bougainville Constitution to order that immediate steps be taken to clean and fix the Buka police lock-up to make it comply with the human rights provisions of each Constitution. 

2. I use the term ‘human rights’ interchangeably with the terms ‘constitutional rights’ and ‘basic rights’. These words mean the same things. They refer to the rights conferred on all citizens, and in some cases non-citizens, by Division III.3 (basic rights) of the National Constitution. Those rights continue to apply in the Autonomous Region of Bougainville by virtue of Section 178 of the Bougainville Constitution. The Bougainville Constitution has been fully operational for more than a year.

BACKGROUND

3. On Friday 18 August 2006 I conducted an official ‘visiting justice’ visit of the Buka police lock-up. It is also called the ‘police cell’ or polis sel. A police lock-up is deemed to be a "correctional institution" by Section 2 of the Correctional Service Act 1995. I inspected it using my powers as a Judge under Sections 144, 145 and 148 of the Correctional Service Act. 

4. As I pointed out in In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up, (2006) N3022 and 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, a Judge can visit any correctional institution in the country when the Judge thinks fit and, amongst other things, inquire into the treatment and conduct of the detainees and other matters as the Judge thinks fit. A Judge has the power to inquire into complaints of human rights abuses and has the power – and duty – to make orders aimed at correcting such abuses.

5. The purpose of the visit was twofold:

•	to inspect the lock-up and check its compliance with the standards required by the Correctional Service Act, the National Constitution and the Bougainville Constitution; and

•	to hear any concerns, queries or complaints of the detainees about their detention.

PREVIOUS VISIT 

6. I inspected Buka police lock-up in March 2005 during a National Court circuit. I was alarmed then by what I saw and recorded my concerns in a judgment on an application by four Bougainvilleans who were prisoners, not to be transferred to Kerevat Correctional Institution. I granted their application as an enforcement of their constitutional right to be imprisoned close to where their relatives reside. I noted that it seemed incredible that they would want to stay in the Buka police lock-up, given the appalling conditions. But their rights were respected and enforced.

7. I made a number of remarks about the condition of the lock-up. Under the heading "Need for Urgent Action", I stated:

… Bougainville requires a purpose-built, clean, hygienic and functional correctional facility. This is an urgent infrastructural priority.

Having inspected the police lock-up last week, it is apparent that a number of constitutional rights of detainees are being infringed. The place is badly overcrowded. Some of the toilets do not work. The place smells. There is little natural light. There is next to no space in which detainees can walk or exercise. Sleeping quarters are virtually non-existent. They evidently sleep on flattened out cardboard containers on the concrete floors, jammed into their cells and in corridors like sardines. There is a strong argument to say that:

•	The detainees (ie remandees plus prisoners) are being subjected to cruel and inhuman treatment and punishment, which is inconsistent with respect for the inherent dignity of the human person, contrary to Sections 36(1) and 37(17) of the Constitution.

•	They are being denied the right to the full protection of the law, contrary to Section 37(1) of the Constitution.

•	Accused persons (ie the remandees) are not segregated from convicted persons (such as the four applicants in the present case) and the remandees are not subject to separate treatment appropriate to their status as unconvicted persons, contrary to Section 37(18) of the Constitution.

•	Juveniles are not (despite the evidence to the contrary given in the present case) all being separated from mature-age detainees, contrary to Section 37(19) of the Constitution.

The fact that the conditions are so appalling made the present case even more unusual. How could it be that four individuals desire to be imprisoned in such conditions, rather than being transferred? As stated earlier the court was satisfied that that desire was genuine, and that in the circumstances of this case it is a right that needs to be enforced.

Recommendation

In the meantime, I will do what Cory J did in Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212, 20 years ago, and make a formal recommendation under Section 57(3) of the Constitution, aimed at protecting and enforcing constitutional rights. The recommendation is addressed to:

•	the National Government and in particular the Minister for Correctional Services, the Minister for Inter-Government Relations, the Minister for Internal Security and the Minister for Justice; and 

•	all of the members of the National Parliament for Bougainville;

•	the Bougainville Provincial Administration and the soon-to-be Government of the Autonomous Region of Bougainville; and

•	the Commissioner of the Correctional Service and the Commissioner of Police.

The recommendation is: 

•	that all arrangements must be made and steps taken to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency.

THE SITUATION ON 18 AUGUST 2006

8. Conditions at the Buka police lock-up are now worse than they were 17 months ago. On 18 August 2006, it had 103 detainees, including both remandees and prisoners. I found one juvenile – a 14-year-old Buin boy – who had been detained there for five days. He was shy and looked traumatised. That was a shocking breach of human rights. He is now in the care of the Bougainville Welfare Officer but I was left with the impression that had I not intervened he would still be in the lock-up. There are two detainees who appear to have severe psychiatric problems. They need specialist care. There are still no sleeping facilities. There is no proper toilet. There is no privacy in the toilet. The toilet facilities are in an open cell. 

9. I was told that the water pump often does not work. I saw the wheelbarrows that are used to transport water into the facility. This is used for both drinking and washing. The shower does not work. The place is like a human zoo.

10. The facility is divided into ‘cell 1’ (for maximum security) and ‘cell 2’ (for minimum security). Each cell has both prisoners and remandees, which is a direct violation of the constitutional segregation required to exist between those classes of detainees. Some of those in cell 2 sleep in broken down police vehicles, in lofts, sheds or wherever they find space.

11. During the last month there has been a severe food shortage. The Public Solicitor’s lawyer for the current circuit, Mr Kaluwin, has provided rice and tinned fish to the detainees to relieve their plight.

12. It is not clear who is in charge of the facility. Nobody could tell me who was in charge. There are apparently four officers of the Correctional Service who are supposed to work there. I was informed that they are often not at work. I was escorted through the facility by the Assistant Commissioner of Police for Bougainville. Even he was surprised by the poor conditions. He could not convince me that any proper management structure was in place.

13. The human rights provisions of the National Constitution are expressly recognised in the Bougainville Constitution and there can be no excuse for not understanding and applying them. 

HUMAN RIGHTS OF DETAINEES IN A POLICE LOCK-UP

14. In light of what I saw, the obvious question to ask was whether keeping detainees in such conditions complies with the Constitution. Four provisions of the National Constitution are particularly relevant.

15. Section 36(1) (freedom from inhuman treatment) states:

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.

16. Section 37(1) (protection of the law) states:

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.

17. Section 37(17) (protection of the law) states:

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

18. These rights are intended to be real and enforceable. This is made clear by the preamble to the National Constitution, which includes these pertinent statements:

WE HEREBY ACKNOWLEDGE that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:—

(a)	life, liberty, security of the person and the protection of the law; and
(b)	the right to take part in political activities; and
(c)	freedom from inhuman treatment and forced labour … [Emphasis added.]

19. Section 178 of the Bougainville Constitution (basic rights) states:

The basic rights set out in Division III.3 (basic rights) of the National Constitution apply in the Autonomous Region of Bougainville.

20. Section 18(1) of the Bougainville Constitution (assistance to institutions protecting and supporting human rights etc) enshrines the following as one of the ‘Bougainville Objectives and Directive Principles’:

The Autonomous Bougainville Government shall guarantee and respect institutions which are charged by this Constitution with the responsibility for protecting and promoting human rights by providing them within adequate resources to function effectively.

ARE HUMAN RIGHTS BEING BREACHED?

21. The answer to this question is a resounding yes. This was highlighted by my brother Justice Mark Sevua in his recent National Court circuit on Bougainville. I support everything his Honour has said.

22. It is nothing short of a national disgrace – and it is a continuing shame for the People of Bougainville – that a public facility like this can be in such an obviously unhealthy and poorly managed condition. Detaining any person there for more than a short period amounts to physical and mental torture and treatment that is cruel and inhuman. The facility is not presently fit for human habitation. Keeping anyone in this facility is imposing treatment that is inconsistent with respect for the inherent dignity of the human person, contrary to Sections 36(1), 37(1) and 37(17) of the National Constitution.

HOW ARE THE RIGHTS TO BE PROTECTED AND ENFORCED?

23. Having identified these breaches of human rights the next thing is to decide what to do about it. 

24. The National Court has the power and duty under Section 57 of the National Constitution and Section 183 of the Bougainville Constitution to protect and enforce the basic rights; and that power and duty can be exercised either on its own initiative or on application by an interested party. 

25. I point out that I have in the last three days granted bail to 41 remandees, who have been detained at the Buka police lock-up for months and in some cases, years. This will relieve some strain on the facility. But it is a band-aid solution only and it does not diminish the duty of all concerned, especially the Autonomous Bougainville Government, to remedy the shameful state of affairs that prevails.

26. Section 57 (enforcement of guaranteed rights and freedoms) states:

(1)	A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2)	For the purposes of this section—

(a)	the Law Officers of Papua New Guinea; and
(b)	any other persons prescribed for the purpose by an Act of the Parliament; and
(c)	any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3)	A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4)	Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5)	Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6)	The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution. [Emphasis added.]

27. Equivalent provisions are found in Section 183 of the Bougainville Constitution. For example, Section 183(1) states:

Human rights shall be protected by, and are enforceable in the Bougainville High Court, the Supreme Court or the National Court either on the initiative of the Court itself or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the Court, unable fully and freely to exercise his rights under this section, by a person acting on his behalf, whether or not by his authority.

28. The provisions I rely on, in particular are Sections 57(1), 57(3) and 57(5) of the National Constitution and Sections 183(1), 183(3) and 183(5) of the Bougainville Constitution. They say that the National Court:

•	has a duty to protect and enforce human rights; and

•	may make all such orders and declarations as are necessary or appropriate for the purposes of enforcement; and

•	does not have to wait until the rights of persons are actually infringed but may make orders and declarations in cases in which there is a reasonable probability of infringement.

29. I declare that the current condition and state of the Buka police lock-up is such that any person detained there will inevitably be placed in a position in which their human rights under Sections 36(1), 37(1) and 37(17) of the National Constitution and Section 178 of the Bougainville Constitution will be infringed.

30. I will therefore make orders to enforce the human rights of any person who is in future detained at the Buka police lock-up. I will fix primary responsibility for taking immediate action to fix the lock-up on the Commissioner of Police. If the Commissioner considers that primary responsibility lies elsewhere – for example, on the Autonomous Bougainville Government – he is at liberty to apply for variation of the orders. It seems that the current condition of the lock-up is due to many different authorities duckshoving responsibility. No one seems prepared to stand up, claim ownership of the problem, and address it with the commitment and energy required.

31. I will set the matter down for further hearing in the National Court at Buka in a month’s time. The Court must be informed then of what has been done to fix the problem and what will be done in the short term and the medium term to get proper correctional facilities for Bougainville.

ORDERS

32. The National Court makes the following orders under Sections 57(1), 57(3) and 57(5) of the National Constitution and Sections 183(1), 183(3) and 183(5) of the Bougainville Constitution, to enforce the rights of any person in future detained at the Buka police lock-up, those rights being the right to freedom from inhuman treatment under Section 36(1), the right to the full protection of the law under Section 37(1) and the right to be treated with humanity and with respect for the inherent dignity of the human person under Section 37(17) of the National Constitution:

1. The Commissioner of Police must take all reasonable steps to clean and renovate the lock-up to make it a suitable facility for detaining persons and without limiting the generality of the foregoing must ensure that proper, functioning toilet and shower facilities are installed; that adequate light and fresh air is allowed to enter the facility; that there is an adequate supply of fresh drinking water for detainees; that the facility is properly drained; and the facility is compliant with electrical supply standards and insulated from electric shock.

2. In the course of complying with order No 1, there shall be meaningful consultation conducted with all other relevant authorities, including the President of the Autonomous Bougainville Government, the officer in charge of the Bougainville Health Administration, the Commissioner of the Correctional Service, PNG Power Limited; the Buka Town Council, the Assistance Commissioner of Police for Bougainville and the Buka Police Station Commander, each of whom shall assist in compliance with order No 1.

3. All things necessary to comply with order No 1 shall be done within three months after the making of this order.

4. The Administrator of the Autonomous Bougainville Government, the Commissioner of Police and the Commissioner of the Correctional Service or their duly authorised delegates must attend the National Court at Buka on 25 September 2006 and inform the Court of the steps being taken to (a) give effect to order No 1 and (b) secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency.

5. The entire facility must be hosed and cleaned and a reliable supply of fresh running water reconnected within one week after the date of this order.

Ordered accordingly.

____________________________

Public Solicitor: Lawyer for the applicants
Public Prosecutor: Lawyer for the State