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Lack of Correctional Service (CS) Facilities in Enga Province, In re [2010] PGNC 252; N3887 (20 February 2010)

N3887

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 14 of 2010

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER

THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

RE LACK OF CORRECTIONAL SERVICE (CS) FACILITIES IN ENGA PROVINCE

Waigani: Ellis J
2010: 19, 20 February

HUMAN RIGHTS - Basic rights - under the Constitution – conditions for detainees – Police cells in Wabag – Interim remand facility at Mukurumanda – Permanent prison facilities at Mukurumanda

Cases cited:

There are no cases cited in these reasons for decision

Counsel:

Mr C Waiange, for Correctional Services
Mr J Issack, for the Enga Provincial Government

20th February, 2010

1. ELLIS J: Representatives of the Enga Provincial Government and the Department of Correctional Services appeared in court yesterday in relation to this matter. I am grateful for their attendance although I think the time and cost of having lawyers attend the National Court in Wabag can be avoided in future in view of the progress made in this matter.

2. I am grateful for the reports which have been provided in response to my requests and I will have those documents marked as follows:

Exhibit A Progress Report from the Provincial Police Commander

Exhibit B Submission from Correctional Services

Exhibit C Submission from the Enga Provincial Government

3. Before dealing with what appears in those reports, there are some points which need to be made. First, I thank those who have been working to address the issues raised just over two weeks ago and congratulate then on what has already been achieved. All countries have problems from time to time. What distinguishes a country is not whether it has problems but how it deals with problems when they arise. In this case, it was only necessary for the court to indicate a problem in relation to prisoners from Enga Province, notably in relation to people in prison on remand (ie waiting for their trial), for that problem to be addressed by the relevant stakeholders in less than two weeks. Clearly, the extent of the problem has been reflected in the urgency of the response.

4. Secondly, I should indicate that I do not propose to name people in these reasons for decision to reflect the fact that these proceedings are not about naming, blaming and shaming but on the need to fix a problem in relation to the treatment of prisoners from Enga.

5. Thirdly, it must be noted that it was not necessary for the court to exercise the full extent of its powers to make orders which the Constitution bestows on the court: all that was required was for the court to recommend that the relevant persons meet with a view to solving the problems and provide written report to the National Court in Wabag. I trust the climate so created, of cooperation rather than confrontation, will continue in relation to the three matters which need to be addressed. I shall deal with them in turn.
Police cells in Wabag

6. The Progress Report from the Provincial Police Commander (Exhibit A) related to the need for new police cells in Wabag. On 12 October 2009 a request was made of the Wabag Works Department to prepare a Scope of Works and Design to enable a Project Submission to be prepared with a view to obtaining funding to replace the condemned building.

7. In a letter dated 22 December 2009 it was said that the delay was due to a computer being infected with a virus, no doubt different to the kind of virus which may infect anyone housed in the police cells which have been condemned by the Department of Health more than a year ago. It was said that the project planning awaited the restoration of the computer which awaits "the 2010 Wabag District Administration Budget to be completed approved by the JDP & BPC whenever it reconvenes" (emphasis added).

8. On 10 January 2010, almost three months after the request was made, since the Scope of Works had not been provided, the Provincial Police Commander had a meeting with the District Administrator and Executive Officer with a view to achieving some progress. However, more than four months after it was requested, the Scope of Works and Design has not yet been completed.

9. After it was suggested that the replacement of the police cells in Wabag was a matter for the National Government, rather than the Provincial Government, the Provincial Police Commander pursued this matter with Police headquarters, without success, and suggested in his report that "without the court's intervention in this issue, the current issue will remain unchanged for maybe the next ten to twenty years". When I first read those words, I found it hard to believe that problems such as this could take as long as ten years to fix although the documents considered below support the view that prison facilities in Enga Province have been either lacking or deficient for ten years or more.

10. In those circumstances, I propose to make further recommendations with a view to getting replacement police cells in Wabag built. If there is no response to those recommendations then I will be left with no alternative but to make orders to get this matter moving.

11. It is convenient to here recall that, when I was on circuit in Kavieng last November, I was advised that the police cells there had been or were about to be condemned by the Department of Health. Hence, it may be that the problem which exists in relation to the police cells in Wabag also exists in other places as well. I resist the temptation to make a request that the Police Commissioner advise which police cells, apart from those in Wabag, have been condemned by the Department of Health.

12. Pursuant to section 57 of the Constitution, I repeat the declaration previously made:

(1) I declare hat the condition of the Police cells in Wabag is such that housing any convicted person or unconvicted person in those cells breaches the basic rights of those persons, namely sections 36, 37(1) and 37(17) of the Constitution.

and add the following requests:

(2) I request that the District Works Coordinator provide a written report to the National Court in Wabag on or before 4pm on Monday 8 March 2010 outlining what (if anything) will be done and by when in relation to the completion of a Scope of Work and Design for the replacement of the police cells in Wabag.

(3) I request that a written report be faxed to the National Court in Wabag (547 1466) on or before 4pm on Monday 8 March 2010 by the Police Commissioner or his delegate, outlining what will be done and by when in relation to the replacement of the police cells in Wabag.

Interim remand facility at Mukurumanda

13. The reports from Correctional Services (Exhibit B) and the Enga Provincial Government (Exhibit C) indicate that the recommendation made by the Court on 2 February 2010 was adopted in that there was a meeting attending by the Acting Commissioner for Correctional Services and the Governor of Enga Province held on 12 February 2010. At that meeting it was agreed that the Enga Provincial Government would continue to pay the Gutnius Lutheran Church K25,000 a year for the use of the site on which the interim facility is located and the Correctional Service would take charge of the opening and maintenance of that interim facility.

14. As a result of that meeting, work on an interim remand facility at Mukurumanda was promptly commenced. One of the two remand facilities was able to be used quickly. Fourteen low risk prisoners with only 2 to 4 weeks of their sentence remaining were brought from Baisu and kept there to assist with the labour work so that the first batch of 40 remandees could be accommodated there by the end of February.

15. The court was advised that an inspection on 18 February 2010 revealed the following matters and that a report is being prepared for the Acting Correctional Services Commander in relation to those matters:

(1) The second remand facility required maintenance in order to be able to house another 40 remandees.

(2) Four of the houses for staff/warders have been condemned and are not fit for occupation.

(3) The barracks used to temporarily house officers also lacked basic maintenance.

(4) The perimeter fence required maintenance.

16. The current capacity of the interim facility at Mukurumanda is 40 and that will soon be expanded to 80. There were 53 men, 2 women and 6 juveniles from Enga Province held on remand at Baisu as at 30 January 2010. That number will be lower now since a number of criminal trials have been finalised in Wabag during this month. However, the remandees from Enga Province are awaiting trial in either Wabag or Porgera and, at the risk of stating the obvious, new remandees arrive from time to time.

17. There will no doubt be a temptation to use the interim facility at Mukurumanda as a way of alleviating the general overcrowding at Baisu. It is my considered opinion that the interim remand facility at Mukurumanda should, for the moment, be limited to remandees so as to:

(1) Enable people who are presumed to be innocent until proven guilty to be housed in conditions which do not involve overcrowding.

(2) Reduce the distance to be travelled to and from the National Court in Wabag from about 4 hours to about half an hour.

(3) Assist the remandees to prepare for the hearing of their case by making it easier for them to speak with their lawyer.

18. I am supported in that view by the fact that documents provided to the court suggest the interim facility at Mukurumanda should only ever be seen as a facility for low-risk prisoners. In the event that the capacity at Mukurumanda exceeds the number of remandees from Enga (ie people imprison awaiting trial in Wabag or Porgera) then I presume that priority would be given to juveniles, so as to make it easier for them to maintain contact with their families, followed by women prisoners.

Permanent prison facilities at Mukurumanda

19. The reports from Correctional Services (Exhibit B) and the Enga Provincial Government (Exhibit C) indicate that, at the 12 February 2010 meeting, it was agreed that the Enga Provincial Government would take charge of landowner issues in relation to the Mukurumanda site while the Correctional Service would follow up with the Department of National Planning and Monitoring on a commitment of K5 million made by the National Executive Council (NEC) in February 2009 when it met in Wabag. In addition, a Joint Steering Committee was established to oversee the project development and implementation.

20. It is worth noting briefly the history of correctional facilities in Enga Province according to the report received from the Enga Provincial Government. Apparently, the Correctional Services facilities in Wapenamanda, Wabag and Laiagam were closed in the mid 1980's and there have been no prison facilities in the province for more than 10 years! Twelve years ago, the Enga Provincial Government received a grant of K300,000 from the National Government, under the Public Investment Program (PIP) to facilitate the commencement of planning, designing and construction of a new prison at the Mukurumanda site at Wapenamanda. The project received a further K1.5 million from the National Government in 1999 and a further K1 million in 2000, bringing the total to K2.8 million within the 3 years maximum life for a PIP program.

21. The initial estimates for the construction of the Mukurumdna facility was K11 million in 1997-1998, to cover site development, landscaping, a 200 person prison dormitory and compound together with staff accommodation and amenities. As the project received less than K3 million, money was spent on:

(1) Two 25 person dormitories on land owned by the Gutnius Lutheran Church to accommodate low risk men and women prisoners.

(2) The construction of 11 staff houses so there would be officers on site when the prison dormitories were completed.

(3) Other facilities such as access roads, site development and perimeter fencing.

22. Since 1997 the Enga Provincial Government has:

(1) paid rent of K25,000 per annum since 1997 for the site on which the temporary remand facilities are located;

(2) provided a 10 seater vehicle for escorting remandees between Mukurumanda and the court; and

(3) maintaining the septic and plumbing system from time to time.

23. The Enga Provincial Government made a submission to the NEC for the funding of a prison in Enga Province. As a result, the NEC committed K5 million for that project when it met in Wabag in February 2009. The question thus remains as to when and how those finds will be spent and it would appear that is a matter which needs to be pursued by Correctional Services with the Department and National Planning and Monitoring.

24. On 2 February 2010 I recommended that the Acting Commissioner for Correctional Services and the Governor of Enga Province meet in relation to the establishment of permanent prison facilities at Mukurumanda and I am pleased to note that has occurred. I also requested that a progress report be provided to the National Court in Wabag on or before Friday 8 April 2010 either by way of separate written progress reports or, preferably, a joint written progress report. Any such report need not be voluminous – it may be that one or two pages will suffice. All I am seeking is a summary of what will happen and by when plus details of what is not happening and why.

25. In order to keep track of what progress is being made, I will request that further reports be provided to the National Court in Wabag every two months after that until a permanent prison facility is established at Mukurumanda. It is not the intention of the National Court to become involved in the process or to tell people what they should do although the power to make orders will be exercised if that becomes necessary. Rather, I take that step so that the stakeholders know that the National Court remains interested in the progress made on this issue, so that there is transparency and accountability in the process and so that the National Court will be able to keep the people informed as to how this matter is progressing rather than leave them wondering if anything is ever going to happen.

26. Accordingly, in relation to this, the third of my three concerns, I do no more that repeat the existing order for reporting by 8 April 2010 and add an order to provide for further progress reports every two months after that:

(4) I request that the Acting Commissioner for Correctional Services and/or the Governor of Enga Province, or their representative(s), provide to the National Court in Wabag on or before Friday 8 April 2010 either separate written progress reports or, preferably, a joint written progress report in relation to the establishment of a permanent prison facility at Mukurumanda.

(5) I request that such a report (or reports) be provided to the National Court in Wabag every two months thereafter (ie by 8 June 2010, 8 August 2010 ...) until that permanent prison facility is completed.

Conditions at Baisu

27. The prompt creation of an interim remand facility at Mukurumanda will address the problem of overcrowding in the remand cells at Baisu (ie the Baisu Correctional Institution near Mount Hagen). As at 30 January 2010 there were 187 people being held on remand at Baisu and 61 of them were from Enga Province. Simply stated, the provision of an interim remand facility at Mukurumanda will enable the number of remandees at Baisu, which was approaching 200 during January when the courts were not sitting, to move closer to 100 which, allowing for the separate housing of juvenile and women, should leave not more than 80 men on remand at Baisu which must be seen as a target since there are currently two remand cells, each designed to accommodate 40 men.

28. What I observed at Baisu on 30 and 31 January 2010 went beyond overcrowding. I resist the temptation to make any orders in relation to those other issues for a number of reasons. First, since I am the resident judge in Enga Province, not Western Highlands Province. Secondly, since I suspect the same problems I saw at Baisu will exist at other correctional institutions throughout the country and, in those circumstances, making orders in relation to the conditions at Baisu may only serve to divert resources to that prison to the detriment of other prisons. It would appear that some for of audit of the conditions in prisons in Papua New Guinea is desirable.

Summary

29. The current position in relation to the three issues raised may be summarised as follows:

(1) The replacement of the police cells in Wabag is stalled.

(2) An interim remand facility at Mukurumanda has been established.

(3) Steps are being taken to construct a permanent prison facility at Mukurumanda.

30. Having achieved the prompt co-operation of the Correctional Service of Papua New Guinea in relation to provision of prison facilities in Enga Province, I hope the Royal Papua New Guinea Police Constabulary will provide the same prompt co-operation in relation to the provision of replacement police cells in Wabag.

31. It will be obvious that I am doing no more than trying to get things moving so as to remedy situations which involve breaches of the basic rights provisions of the Constitution. The orders made on 2 February and the orders I make today reflect my view that the power given to a judge to make orders under section 57 in response to breaches of the basic rights provisions of the Constitution should not be used to tell public servants how to do their job but to remedy breaches and it seems to me to be preferable in this case to, in the first instance, make request and recommendations to get things moving. However, for the avoidance of doubt, the fact that the National Court is only making requests and recommendations at this stage does not mean that orders will not be made if the need arises.

Orders

32. I now gather together the orders set out above:

(1) I declare hat the condition of the Police cells in Wabag is such that housing any convicted person or un-convicted person in those cells breaches the basic rights of those persons, namely sections 36, 37(1) and 37(17) of the Constitution.

(2) I request that the District Works Coordinator provide a written report to the National Court in Wabag on or before 4pm on Monday 8 March 2010 outlining what (if anything) will be done and by when in relation to the completion of a Scope of Work and Design for the replacement of the police cells in Wabag.

(3) I request that a written report be faxed to the National Court in Wabag (547 1466) on or before 4pm on Monday 8 March 2010 by the Police Commissioner or his delegate, outlining what will be done and by when in relation to the replacement of the police cells in Wabag.

(4) I request that the Acting Commissioner for Correctional Services and/or the Governor of Enga Province, or their representative(s), provide to the National Court in Wabag on or before Friday 8 April 2010 either separate written progress reports or, preferably, a joint written progress report in relation to the establishment of a permanent prison facility at Mukurumanda.

(5) I request that such a report (or reports) be provided to the National Court in Wabag every two months thereafter (ie by 8 June 2010, 8 August 2010 ...) until that permanent prison facility is completed.

Notice

33. I direct that a copy of these reasons for decision be either delivered or faxed by 12 noon on Monday 22 February 2010 to:

(1) the lawyer for Correctional Services,

(2) the Commanding Officer at the Baisu Correctional Facility;

(3) the Acting Prison Commander at the Mukurumanda Correctional Facility;

(4) the Commissioner for Police;

(5) the Provincial Police Commander for Enga Province;

(6) the Enga Provincial Government's Legal Officer; and

(7) the District Works Coordinator in Wabag.

Orders accordingly.
____________________________________________________________

Correctional Service in-House lawyer: Lawyer for Correctional Service Commissioner
Enga Provincial Government Principal Legal Officer: Lawyer for Enga Provincial Government