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In the Matter of Complaints of Unlawful and Unreasonable Detention by Michael Walge [2006] PGNC 232; 2006-3-22 (22 March 2006)

N3022

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NOS 109-113 0F 2006

IN THE MATTER OF COMPLAINTS
OF UNLAWFUL AND UNREASONABLE DETENTION BY
MICHAEL WALGE, MATHIAS WARPIN, DONALD BENSON, MANUEL NALLY, DEREK KOPMAN, MICHAEL POMAIO AND SIMON TEMBE

AND IN THE MATTER OF ENFORCEMENT
OF BASIC RIGHTS UNDER THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
SECTION 57
ON THE OWN INITIATIVE OF THE NATIONAL COURT
RE CONDITIONS OF DETENTION AT
BIALLA POLICE LOCK-UP, WEST NEW BRITAIN PROVINCE

Bialla, Kimbe : Cannings J
2006: 16, 17, 22 March

REASONS FOR DECISIONS

HUMAN RIGHTS – right to liberty of the person – Constitution, Section 42 complaints of unlawful and unreasonable detention in police lock-up – duty of National Court to inquire into complaints – duty to order release in prescribed circumstances – entitlement to bail.

HUMAN RIGHTS – conditions of detention for remandees – police lock-up – need for conditions of detention to comply with constitutional requirements – Constitution, Section 36: freedom from inhuman treatment – Section 37: protection of the law.

CONSTITUTIONAL LAW – Basic Rights – enforcement of basic rights – Constitution, Section 57: 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 unlawful or unreasonable detention from seven detainees and inspected the conditions in which they and 12 other detainees were held. The Judge inquired into the complaints and indicated that consideration would be given to making orders for the release of some of the detainees and for remedying the conditions of the lock-up, using the powers of the National Court under Sections 42(5) and Section 57 of the Constitution.

Held:

(1) The detention of seven of the detainees was unlawful and/or unreasonable, having regard to its length, the amount of bail imposed, the circumstances of their detention and the conditions of the lock-up.

(2) Accordingly orders were made under Section 42(5) of the Constitution for their release subject to conditions.

(3) The Bialla police lock-up is run-down, putrid and poorly ventilated. Detaining any person there for more than a short period amounts to physical and mental torture and 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 Constitution.

(4) 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 Constitution, Section 57(3).

Cases Cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969

Abbreviations

The following abbreviations appear in the judgment:

eg – for example
N – National Court judgments
OK – okay; all right

Tables

The following tables appear in the judgment:

ENFORCEMENT OF BASIC RIGHTS

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

Counsel

O Oiveka and B Tanewan, for the Complainants
F Popeu, for the State

22^nd March, 2006

1. CANNINGS J: INTRODUCTION: This judgment gives my reasons for deciding to exercise the power of the National Court under Sections 42(5)(b) and 57(3) of the Constitution to order the release of seven detainees being held at the Bialla police lock-up, and to order that immediate steps be taken to clean and fix that facility to make it comply with the human rights provisions of the 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 Constitution of the Independent State of Papua New Guinea.

BACKGROUND

3. On Thursday 16 March 2006 I conducted an official ‘visiting justice’ visit of the Bialla 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. A Judge can visit any correctional institution in the country when the Judge thinks fit and, amongst other things, inquire into the treatment and conduct of the detainees and other matters as the Judge thinks fit. A Judge has the power to inquire into complaints of human rights abuses and under the Constitution has the power – and duty – to make orders aimed at correcting such abuses.

5. I was conducting a National Court circuit in Bialla during the week commencing Monday 13 March 2006. This was my first visit to the Bialla police lock-up. I stayed for one hour. I met the Acting
Police Station Commander, Major Mathew Balupa, on arrival. He escorted me through the lock-up and facilitated the interviews I conducted with seven detainees and a general discussion with all detainees held there.

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

THE BIALLA POLICE LOCK-UP

7. The police lock-up stands apart from the police station. It is separated by a courtyard measuring approximately 15 x 25 metres. The courtyard is grassed.

8. The lock-up is a concrete structure measuring approximately 45 x 25 metres, divided into five separate areas, only one of which appears to be used to keep detainees. The detainees rest and sleep in that part of the lock-up. It measures approximately 4.5 x 25 metres. Only a modest amount of natural light permeates the facility. Ventilation is extremely poor. Bialla is close to the sea at low altitude. The climate is tropical. It experiences high heat and humidity in the wet season.

9. The unused parts of the lock-up, taking up more than three-quarters of the total area, are dark and wet. Water and urine seems to leak into those parts. One of the cells cannot be entered as its iron door is rusted and jammed shut. At the far end of the lock-up is a large cell, in one corner of which is a small drum that serves as a toilet. There is a terrible, putrid stench emanating from this part of the lock-up. This area is also wet. In the corridor leading to that large cell there was a broken power switch, which seemed to have live current running through it. This creates a very serious electrical and fire hazard.

10. One of the areas seems to be used as a shower room. The shower consists of an open pipe, with no shower rose.

11. Other than the water on the floor, there was no fresh running water in the lock-up. The detainees complained of not being able to have a shower for several days.

12. There are no mattresses or chairs in the lock-up. Detainees must sit or stand on the concrete floor.

13. I recently inspected the separate confinement or detention cells (the ‘dark cells’ at Beon Correctional Institution, Madang Province and ordered that they be closed for being unconstitutional. I was left with the impression that the Bialla police lock-up is just like a big dark cell.

14. It is not possible for me to describe the condition of the lock-up, and the conditions in which people are detained there, other than in pejorative terms: unhealthy, unhygienic and uninhabitable; distressing, disgraceful and disgusting. (In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969.)

THE DETAINEES

15. The detainees are all males and fall into three categories:

• Those temporarily transferred from Lakiemata Gaol (the main correctional institution in West New Britain) where they are remanded in custody. They came to Bialla for various reasons, eg for their trial or a sentencing hearing or hearing of their bail application.
  
• Those arrested and detained at Bialla, by the police, either upon suspicion of committing various offences or, in one instance, in reliance on an order of the District Court to enforce a civil debt.
  
• Those detained the previous day pursuant to orders made in the National Court.
  

16. Their details are shown in the following tables.

TABLE 1: DETAINEES TEMPORARILY TRANSFERRED
FROM LAKIEMATA

TABLE 2: DETAINEES ARRESTED BY BIALLA POLICE

TABLE 3: DETAINEES REMANDED IN CUSTODY
BY ORDER OF NATIONAL COURT

COMPLAINTS OF UNLAWFUL OR UNREASONABLE DETENTION

17. The seven detainees in the second category (see table 2) all had concerns and queries about the particular circumstances of their detention. Those in the first and third categories (tables 1 and 3) understood the reasons for their detention but had general complaints about the conditions of the police lock-up, which are addressed below.

18. I interviewed each of the detainees in the second category. Michael Walge, Mathias Warpin and Donald Benson were interviewed together as they are jointly charged. I interviewed the other four individually. I dealt with their concerns and queries as complaints of unlawful or unreasonable detention under Section 42(5) (liberty of the person) of the Constitution which states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit. [Emphasis added.]

19. Section 42(5) is an enforcement provision that bolsters the constitutional right to personal liberty, the nature and extent of which is prescribed by Sections 42(1), (2) and (3). Section 42(5) works in this way:

• Every person has the right to complain to a Judge that he or she is detained unlawfully or unreasonably (by anybody, particularly the police or Correctional Service).
  
• If such a complaint is made the Judge is obliged to do two things: order that the person be brought before the Judge or the National Court can inquire into the complaint.
  
• The purpose of the Judge’s inquiry is to ascertain whether the detention of the person (who can be labelled the detainee or the complainant) is lawful and, in the case of someone detained on remand pending trial, not an unreasonable detention.
  
• In forming an opinion on whether a detention is unreasonable the Judge is required to have regard in particular to the length of the detention. Other considerations can also be taken into account, eg the physical conditions of the place of detention, whether access to a lawyer, friends and relatives has been permitted.
  
• If the Judge is not satisfied that the person’s detention is lawful or, in the case of someone detained on remand pending trial, does not constitute an unreasonable detention, the Judge must order the person to be released.
  
• Release can be either unconditional or subject to such conditions as the Judge thinks fit.
  

(See generally Application by Benetius Gehasa (2005) N2817, National Court, Cannings J.)

20. After interviewing the seven detainees (the complainants) in category No 2, I held a discussion in the courtyard with all 19 detainees. They complained about the conditions of the lock-up. I took those matters into account in the course of my inquiries into the seven complaints under Section 42(5)(a).

21. I then ordered that the seven complainants be brought before the National Court that afternoon to allow my inquiries to be completed in open court. They were all brought to the courthouse (which is only 100 metres from the police station), as ordered.

22. Mr Tanewan of Paul Paraka Lawyers represented Michael Walge, Mathias Warpin and Donald Benson. Mr Oiveka of the Office of the Public Solicitor represented Derek Kopman, Michael Pomaio and Simon Tembe. Mr Oiveka did not represent Manuel Nally as he was acting for the person who the District Court ordered Manuel Nally to pay money to in the civil proceedings that led to Manuel Nally being detained. Mr Oiveka was in a conflict of interests, but nonetheless assisted the court in the resolution of Manuel Nally’s complaint.

23. Mr Popeu of the Office of the Public Prosecutor represented the interests of the Police and other State agencies. He was unable to produce any charge sheets, bail certificates or warrants of commitment for the six detainees on remand. He produced some documentation in relation to Manuel Nally.

24. I considered each matter on its merits, asked the complainants for further details of their detention where necessary and sought submissions from counsel. I made extempore orders under Section 42(5)(b) of the Constitution for the conditional release of all complainants except Manuel Nally whose case was more complex and required further consideration. I ordered that all complainants be brought before or attend the court the next morning so that written orders could be pronounced in open court. They all attended, as ordered, and I pronounced the orders on the morning of Friday 17 March 2006. The orders and my reasons for making them are summarised below.

MICHAEL WALGE, MATHIAS WARPIN, DONALD BENSON

25. I was not satisfied that their detention was lawful or reasonable. They were arrested more than two months ago, on 31 December 2005, and have been in custody since then either at Bialla or Kimbe police lock-ups. The amount of cash bail imposed by the District Court of K500.00 is, for the sort of young village men they appear to be, manifestly excessive. They have not been brought before a court for more than two months (the last time being on 12 January 2006). They have spent most of their time at Bialla police lock-up where the conditions are, as already indicated, appalling.

26. I ordered that they be released subject to the following conditions:

1. cash bail of K500.00 imposed by the District Court reduced to K50.00 each;
   
2. must report to the Bialla District Court Registry every Monday between 8.00 am and 4.00 pm;
   
3. must notify the Registry of their exact place of residence;
   
4. must not leave WNB Province without written approval of a Judge or senior magistrate;
   
5. must not approach potential State witnesses;
   
6. must not consume alcohol or intoxicating drugs;
   
7. must be of good behaviour and keep the peace.
   

MANUEL NALLY

27. I was not satisfied that his detention was lawful. I sighted a copy of a warrant of commitment to Lakiemata Correctional Institution issued by the District Court at Bialla on 12 January 2006. The warrant fails to indicate the law under which it was issued other than mentioning the Corrective Institutions Act Chapter No 63 of the Revised Laws. That Act was repealed and replaced by the Correctional Service Act 1995. The warrant does not give sufficient details of the District Court order that the complainant failed to comply with, which led to the warrant being issued. There are elaborate provisions in Division IX.5 (imprisonment of fraudulent debtors) of the District Courts Act that delimit the power of the District Court to enforce orders it has made for payment of debts and other causes of action. I was not satisfied that these provisions had been complied with or considered. Furthermore the warrant was for commitment of the complainant to Lakiemata Correctional Institution, not to the Bialla police lock-up. He had been in the lock-up for nine days in conditions that are unconstitutional. His continuing detention was unlawful.

28. I inquired into the nature and details of the dispute between the complainant and the person to whom he owes money, the judgment debtor Kevin Apusa. I asked the complainant how much income he was earning and how much he could afford to pay by monthly instalments. I figured that imprisonment of a judgment debtor is a last resort that does not advance the interests of the debtor, the creditor or the State.

29. I ordered that Michael Nally be released forthwith subject to the following conditions:

1. the warrant of commitment of the complainant issued by the District Court at Bialla on 5 January 2006 in case No 104/04 is revoked;
   
2. the complainant must pay K350.00 cash to the Area Finance Office by the last Wednesday of each month, for the benefit of Kevin Apusa, beginning in March 2006, until the civil debt due in that case is fully paid;
   
3. the complainant must immediately after making each payment bring the receipt to the District Court Registry at Bialla;
   
4. the Clerk of the District Court at Bialla shall by the first Wednesday of each month report to the Assistant Registrar of the National Court at Kimbe whether the payment has been made;
   
5. if the Assistant Registrar receives a report that the payment has not been made the matter shall be brought to the attention of the presiding Judge in Kimbe or any other Judge of the National Court so that the Court may issue a warrant for the arrest of the complainant and an order that he be brought before the National Court without delay to show cause why he ought not be immediately committed to custody at Lakiemata Correctional Institution for a period of six months.
   

DEREK KOPMAN

30. I was not satisfied that his detention was lawful or reasonable. He has been in the Bialla police lock-up for one month. The amount of cash bail imposed by the police of K600.00 is manifestly excessive. He has not been brought before a court. Once he was arrested and detained he had to be brought before a court without delay. This was his right under Section 42(3) of the Constitution, which states:

A person who is arrested or detained—

(a) for the purpose of being brought before a court in the execution of an order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer. [Emphasis added.]

31. Wherever there is a right there is a duty and in this case it was the duty of the police to bring the complainant before a court without delay. It does not matter which court it is. Usually it will be the District Court. But it does not have to be the District Court. It can also be the National Court, the Supreme Court or even, apparently, the Village Court. (See Constitution, Section 155(1) (the national judicial system), which states that the National Judicial System consists of the Supreme Court, the National Court and such other courts as are established under Section 172 (establishment of other courts), and the District Courts Act Chapter No 40 and the Village Courts Act 1989.)

32. I quizzed Mr Popeu on how it could be that the National Court had been sitting for four days in Bialla only 100 metres from the police lock-up, yet the police had not brought some complainants (those who had not been brought before any court) before it. He replied that the police thought that they had to wait until the District Court sat in Bialla again. That had not happened for some time as Bialla does not have a resident magistrate and is relying on magistrates to come on circuit from Kimbe. That explanation was unsatisfactory. “Without delay” means immediately. The complainant could have been taken to Kimbe and brought before a court there. In saying that I am mindful of Section 42(4) of the Constitution, which says that difficulties in transporting a detainee to a court can be a good reason for a delay. Section 42(4) states:

The necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with Subsection (3), but exigencies of travel which in the circumstances are reasonable may, without derogating any other protection available to the person concerned, be such a ground. [Emphasis added.]

33. The word “exigencies” means urgent needs or demands. “Exigencies of travel” appears to mean that if the police or other detaining authority cannot reasonably transport the detainee to a court immediately because of some emergency, the delay caused by the exigency will be justifiable. Except in those circumstances the detainee must be taken to a court without delay.

34. In the case of Derek Kopman the delay of one month was unreasonable and in breach of Section 42(3)(b) of the Constitution. His detention was unlawful for that reason alone. He has endured the appalling conditions of the police lock-up for one month. That makes his an unreasonable detention.

35. I ordered his release subject to the same conditions as those for Michael Walge, Mathias Warpin and Donald Benson. Most importantly, cash bail of K600.00 was reduced to K50.00.

MICHAEL POMAIO

36. I was not satisfied that his detention was lawful or reasonable. Like Derek Kopman he has been in the police lock-up for one month. The amount of cash bail imposed by the police of K200.00 is excessive, given that he is unemployed and that he is facing a minor charge (stealing five gallons of fuel). He has not been brought before a court. His right under Section 42(3) of the Constitution to be brought before a court without delay has been breached. His detention was unlawful for that reason alone. He has also endured the appalling conditions of the police lock-up for one month. That makes his an unreasonable detention.

37. I ordered his release subject to the same conditions as those for Michael Walge, Mathias Warpin, Donald Benson and Michael Pomaio.

SIMON TEMBE

38. I was not satisfied that his detention was lawful or reasonable. He is 17 years old. He is therefore a juvenile, being aged between 7 and 18 years, for the purposes of the Juvenile Courts Act. Special procedures for the arrest and detention of juveniles are prescribed by Section 21(2) (arrest of juvenile) of that Act, which states:

Where a juvenile is arrested by a member of the Police Force ... the officer in charge of the police station shall—

(a) immediately notify a parent or a responsible person, and a Juvenile Court Officer, and shall allow access by all or any of them to the juvenile; and

(b) place the juvenile in a remand centre or in such other place as is approved by the Director for that purpose; and

(c) notify a Juvenile Court Officer of the arrest, the reasons for the arrest and the place of detention.

39. Simon Tembe informed me that he had spent two nights in the police lock-up after being arrested for stealing K200.00 from a house. He said he had not been charged. Mr Popeu said that there was a charge but could not produce a copy of it. It was apparent that the complainant’s parents, guardians or people responsible for him had not been notified of his detention. He said he hails from Pililo Island in the Kandrian District. He came to Navo in the Bialla District to stay with relatives. He does not go to school and is unemployed. He was shy and seemed traumatised by his detention.

40. His detention was unlawful as it was contrary to Section 21(2) of the Juvenile Courts Act and he had not been brought before a court without delay contrary to Section 42(3)(b) of the Constitution.

41. No attempt was made by the police to afford him special treatment as a juvenile. He was forced to spend two nights in the lock-up in close quarters with at least 18 mature aged men, two of whom have recently been convicted of sexual offences against children. His rights under Sections 37(17) and 37(18) of the Constitution (protection of the law) were breached. These provisions state:

(18) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(19) Persons under voting age [18] who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age. [Emphasis added.]

42. I ordered his immediate release without bail on the afternoon of Thursday 16 March 2006 on condition that he return to court the next morning, which he did. Other than the fact that he does not have to pay cash bail he is now subject to the same conditions as those for Michael Walge, Mathias Warpin, Donald Benson, Derek Kopman and Michael Pomaio.

OTHER ISSUES

43. That completes the summary of orders made under Section 42(5) of the Constitution. I now turn to consider the issue of compliance of the Bialla police lock-up with constitutional requirements. In light of what I saw, the obvious question to ask was whether keeping detainees in such conditions complies with the Constitution. Four constitutional provisions are particularly relevant.

44. 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.

45. 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.

46. 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.

47. These rights are intended to be real and enforceable. This is made clear by the preamble to the 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.]

ARE HUMAN RIGHTS BEING BREACHED?

48. I am left with no doubt in my mind that the answer to this question is yes. The Bialla police lock-up is run-down, putrid and poorly ventilated. 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. On the day of my visit the lock-up was overcrowded because of the number of detainees temporarily transferred from Lakiemata. This made conditions worse than normal. However, even keeping one or two people in the facility would be 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 Constitution.

HOW ARE THE RIGHTS TO BE PROTECTED AND ENFORCED?

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

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

51. 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.]

52. The provisions I rely on, in particular, are Sections 57(1), 57(3) and 57(5), which provide that the National Court:

• has a duty to protect and enforce the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution; and
  
• may make all such orders and declarations as are necessary or appropriate for the purposes of Section 57 (enforcement of guaranteed rights and freedoms); 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.
  

53. I declare that the current condition and state of the Bialla police lock-up is such that any person detained there will inevitably be placed in a position in which their basic rights under Sections 36(1), 37(1) and 37(17) will be infringed. I will therefore make orders to enforce the human rights of any person who is in future detained at the Bialla police lock-up.

RECOMMENDATIONS

54. Before pronouncing the court’s orders I make the following recommendations:

• To the Ombudsman Commission – that it dispatches officers from its New Guinea Islands office in Kokopo to Bialla to monitor compliance with the court’s orders and hear and inquire into any complaints of breaches of human rights related to alleged unlawful or unreasonable detention of persons at the Bialla police lock-up;
  
• To the Senior Provincial Magistrate – that he send magistrates on circuit to Bialla from Kimbe on a more frequent basis than in the immediate past (I am informed that the last visit by a magistrate to Bialla was two months ago) pending the appointment of a residential magistrate for Bialla;
  
• To the Chief Magistrate – that he expedite the commencement of duty of a residential magistrate in Bialla (the Chief Magistrate has given notice that an appointment has been made and the new magistrate will commence duty by early April 2006; it is imperative that that decision be put into immediate effect).
  

ORDERS

55. The National Court makes the following orders under Section 57(3) of the Constitution, to enforce the human rights of any person in future detained at the Bialla 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 Constitution:

1. The Commissioner of Police, the Police Regional Commander for the New Guinea Islands Region, the Provincial Police Commander for West New Britain and the Bialla Police Station Commander 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; and that there is an adequate supply of fresh drinking water for detainees.
   
2. In the course of complying with order No 1, there shall be meaningful consultation conducted with all other relevant authorities, including the Provincial Administrator for West New Britain, the most senior representative in the province of the national Department of Health, the officer-in-charge of the Bialla Health Centre and the President of Bialla Local-level Government, each of whom shall assist in the compliance with order No 1.
   
3. All things necessary to comply with order No 1 shall be done within 90 days after the making of this order.
   
4. The Commissioner of Police or his duly authorised delegate must attend the National Court at Kimbe on 3 April 2006 and inform the Court of the steps being taken to give effect to order No 1 and thereafter file an affidavit detailing progress on compliance with order No 1 by the end of each month until ordered otherwise by the Court.
   
5. Unless and until the Court is satisfied that order No 1 has been complied with and makes a declaration accordingly, no person shall be detained in the Bialla police lock-up for more than 24 hours except in an extreme and urgent case where there is an ongoing emergency and the Police Station Commander or the next most senior officer available decides on reasonable grounds that it is necessary to detain a person longer than 24 hours for the purposes of protection of that person or the community. In such a case the Assistant Registrar of the National Court at Kimbe shall be informed within 24 hours after the end of the 24-hour period.
   
6. The only areas of the lock-up that can be used are the courtyard, the area immediately inside the main door where the detainees have been sleeping and the shower room.
   
7. The entire facility must be hosed and cleaned and a reliable supply of fresh running water reconnected within 5 days after the date of this order.
   
8. Whenever a person is detained at Bialla police lock-up the Police Station Commander or the next most senior officer shall ensure that the detainee is brought before a court without delay, and that means that if the District Court is not sitting at Bialla the detainee shall be brought before the District Court or the National Court at Kimbe without delay.
   
9. A detainee brought before a court in Kimbe shall be detained at the Kimbe police lock-up for no more than 48 hours and in the event that the court or judicial officer concerned orders that that the detainee be further held in custody, such custody shall be at Lakiemata Correctional Institution.
   
10. The Commissioner of Police, the Police Regional Commander for the New Guinea Islands Region, the Provincial Police Commander for West New Britain and the Bialla Police Station Commander must each certify in writing to the Assistant Registrar of the National Court, Kimbe, by close of business on 28 March 2006, that these orders have been served on them.
    

Ordered accordingly.
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Public Solicitor/ Paul Paraka Lawyers: Lawyers for the complainants
Public Prosecutor: Lawyers for the State