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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (HR) NO 25 OF 2020
CORPORAL 4742 – REGINA RUMINTS, CORRECTIONAL SERVICE OFFICER ATTACHED TO BAISU CIS
Plaintiff
V
HONOURABLE PAIAS WINGTI – GOVERNOR FOR WESTERN HIGHLANDS PROVINCE
First Defendant
JOSEPH NENG – PROVINCIAL ADMINISTRATOR OF WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Defendant
HONOURABLE WILLIAM DUMA – MEMBER FOR MT. HAGEN OPEN ELECTORATE
Third Defendant
HONOURABLE PETER IPATAS – GOVERNOR FOR ENGA PROVINCE
Fourth Defendant
HONOURABLE MICHAEL NALI – MINISTER FOR WORKS & IMPLEMENTATION
Fifth Defendant
MT HAGEN PROVINCIAL WORKS MANAGER
Sixth Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant
Waigani: Narokobi J
2022: 13th May
HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms) – power of National Court to protect and enforce guaranteed rights and freedoms – Separation of powers, s 99 of the Constitution, subject to the Constitution, in principle and non-justiciable - Power of the National Court to make appropriate orders under ss 22, 57(3) and 166 of the Constitution.
The Plaintiff, Regina Rumints, is a correctional service officer, holding the rank of Corporal. She is attached to Baisu Correctional Services Institution (CS). She has been at Baisu CS for the last 10 years. Baisu CS houses detainees from Western Highlands Province, Enga Province and Jiwaka Province. The majority of the detainees are from Enga. The road from Baisu goal to the National Court in Mt Hagen is in a bad state. On one occasion on 22 October 2020, after a court sitting and they were transporting the detainees back to Baisu, there was a section of the road that was particularly bad, and they slowed down. At that moment they were attacked by a man throwing a large stone at them, which broke the windshield, but fortunately they were spared. Their cars have been damaged from the poor road conditions. They have always missed out in the budget allocations from the province. She has filed proceedings under s 57 of the Constitution to enforce her human rights.
Held:
(1) Section 18(1) of the Constitution confers original jurisdiction on the Supreme Court the powers to interpret and apply the Constitution, subject to the proviso that if the Constitution enables another Court or tribunal to exercise this jurisdiction than it is permissible to do so. Provisions of the Constitution relating to the enforcement and protection of human rights can be interpreted and applied by the National Court. This is provided for by ss 22 and 57(1) of the Constitution.
(2) Under s 99 of the Constitution, the principle of separation of powers is subject to the Constitution. This means it is subject to ss 22, 57 and 166 of the Constitution.
(3) Section 22 of the Constitution entitles the National Court to consider case authorities from other democratic societies to develop methods to protect and enforce human rights.
(4) One of the most basic foundations to live in freedom is the availability of adequate roads. If there are no roads or poor roads, other rights will be impaired.
(5) Freedoms human beings enjoy in Papua New Guinea are guaranteed by s 32 of the Constitution and are entitled to be protected by law under s 37(1) of the Constitution, right to full protection of the law. To the extent that freedoms are not being protected, they are being infringed.
(6) The rights of the users of the road connecting Baisu Correctional Institute and the Highlands Highway of Western Highlands Province to s 32(2), 37(1), 41(1) of the Constitution have been and continues to be violated by the very bad, and deteriorating state of the road.
(7) Sections 22 and 57(3) of the Constitution empowers the National Court to order the executive and legislative branch of government to provide adequate funding for basic services of citizens from their available resources within a reasonable period, where absence of these services will infringe rights and freedoms of citizens in the Constitution. (Republic of South Africa. & Ors v Grootboom & Ors 2000 (11) BCLR 1169 referred to)
(8) All Defendants named in this proceeding are ordered to immediately allocate sufficient funding to fix the road leading to Baisu Correctional Institute.
(9) The Seventh Defendant is ordered to provide a new vehicle to the management of Baisu Correctional institute from their respective Law and Order Budgets, or any other available funding from any other basket they may have, to assist the management of Baisu Correctional Service to effectively carry out their operations.
(10) If for any reason, the Defendants are not able to provide funding to fix the road and provide vehicle to the Baisu Correctional Service, a report must be made to the court as soon as practicable, or at least, not more than three months from the date of this order as to when funding will be available to satisfy the orders of the court.
Cases Cited:
Papua New Guinean Cases
Re: Effect of Dilapidated Road Conditions on Enforcement of Human Rights in Madang Town (2021) N8722
Overseas Cases
Republic of South Africa. & Ors v Grootboom & Ors 2000 (11) BCLR 1169
Statutes Cited
Constitution
Counsel
T Ilaisa, for the Plaintiff
A Tukun, for the Fourth Defendant
A Kajoka, for the Seventh Defendant
JUDGMENT
13th May, 2022
Affidavit | Evidence | |
P1 | Regina Rumints, filed 17 November 2020 | She is a correctional service officer attached to the Baisu Correctional Service. She has been so for the last 10 years. Baisu CS
houses detainees from Western Highlands Province, Enga Province and Jiwaka Province. The majority of the detainees are from Enga.
The road from Baisu goal to the National Court in Mt Hagen is in a bad state. On one occasion on 22 October 2020, after a court sitting
and they were transporting the detainees back to Baisu, they came across a section of the road that was particularly bad, and they
slowed down. At that moment they were attacked by a man throwing a large stone at them, which broke the windshield, and they were
fortunately spared. Their cars have been damaged from the poor rod conditions. They have always missed out in the budget allocations
from the province. |
P2 | Regina Rumints, filed 24 November 2020 | Deposes to obtaining quotes to fix the Baisu Road which is a 6.5km road from Baisu CS to Bagl Junction in Mt Hagen from three reputable
companies based in Mt Hagen. The price range from K9,431,263.38 to K10,342, 922.19 being the highest. |
P3 | Ranson Tiki, filed 18 December 2020 | He is a CS Superintendent and CS Commandeer at CS Baisu. He has served a total of 42 years in various capacities in CS. He says that
Baisu is the largest Correctional Services facility in the Highlands region and also caters for detainees from Momase. He says that
currently there are 141 detainees at CS Baisu and more than half of them are from Enga. It is a costly exercise looking after all
the detainees and they get no help from the Enga provincial government. The roads are in very bad state, and due the recent breakout,
it is very risky travelling on the road. There was a large breakout, which resulted in eight escapees being killed. One officers
son was killed in retaliation. Officers do not find it attractive working there. They have not been getting adequate funding. |
P4 | Peter Oimiof, filed 18 December 2020 | He is a Senior Inspector and Manger of Operations at CS Baisu. He has served since 1995. He says that Baisu is the largest Correctional
Services facility in the Highlands region and also caters for detainees from Momase. He says that currently there are 141 detainees
at CS Baisu and 71 are from Enga. It is a costly exercise looking after all the detainees and they get no help from the Enga provincial
government. The roads are in very bad state, which adds to the challenges they are facing in the operations. Most of their vehicles
are rundown. There was a large breakout, which resulted in eight escapees being killed. One officers son was killed in retaliation.
Officers do not find it attractive working there. They have not been getting adequate funding to meet their expenses. |
P5 | Titus Watipa, filed 18 December 2020 | He is an inspector at CS Baisu and is the Manager in charge of welfare, and has been serving for 25 years nine months. He says Enga
has its own facilities but does not accommodate any detainees. More than half of the detainees are from Enga. They have very big
expenses like logistics, electricity, water, food rations from the high number of detainees. It is a costly exercise looking after
all the detainees and they get no help from the Enga provincial government. The roads are in very bad state, which adds to the challenges
they are facing in the operations. Most of their vehicles are rundown. There was a large breakout, which resulted in eight escapees
being killed. One officers son was killed in retaliation. Officers do not find it attractive working there. They have not been getting
adequate funding to meet their expenses. |
P6 | Kewa Koiti | He is a Sargeant Major and Station Manager at Baisu CS. More than half of the detainees are from Enga.It is a costly exercise looking
after all the detainees and they get no help from the Enga provincial government. The roads are in very bad state, which adds to
the challenges they are facing in the operations. Most of their vehicles are rundown. There was a large breakout, which resulted
in eight escapees being killed. One officers son was killed in retaliation. Officers do not find it attractive working there. They
have not been getting adequate funding to meet their expenses from both the Western Highlands provinces and from Enga Provincial
government. |
P7 | Ranson Teki, filed 29 April 2021 | He is now the acting Commander of Baisu CS. He has served in the CS since 10 January 1975. He says prisoners from Enga have been detained
at Baisu for the last 31 years since its facility closed in 1990. All remandees are transported by road to wherever the National
Court sits, this could be Wabag, which is four hours by road or Porgera, which takes eight to nine hours. He attaches a copy of the
officer’s overtime claim transporting detainees to court. They regularly update the National Court in Wabag of the number of
detainees from Enga at the National Court in Wabag. He says they use the road to transport detainees to and from hospitals, church
activities as part of their rehabilitation programme, and they use the road for their other daily activities. Because of the poor
state of the road, donor agencies and their partners are discouraged from coming to see them. The poor state of the road has affected
their service delivery. He provides a list of names of detainees as of 22 April 2021. |
No | Affidavit | Evidence |
D1 | Governor, Hon. Grand Chief, Sir Peter Ipatas, filed 2 February 2021 | He is the Governor of Enga Province, and is duty bound to serve the people of Enga within his province. The Enga Provincial Government
(EPG) receives allocation as other provinces in the country and it is to service the five districts of the province. Enga has its
own prison, that is Mukurumanda, and the EPG is committed to making funds available to have that facility operational. The Baisu
Correctional Services is a national institution which has budgetary allocation provided by the National Government. The road link
between Baisu to Mt Hagen is located within Mt Hagen Central open electorate which comes within the budgetary purview of the first
and third defendants. EPG has no funding allocation for the Baisu CS, nor does it have any responsibility to fund anything outside
of his province. He says it is unreasonable or unfair for him to fund anything outside of his province. His responsibility is to
fix up Mukurumanda |
23. The People of Madang have a right to an efficient road network. This must clearly be understood. They have a right to an ordered and orderly society. A clean and well-run town in which basic transport infrastructure is maintained in a place in which order and discipline will prosper. A provincial capital which oozes neglect and apathy, which greets people with vast potholes and rubbish and broken road-pavements and vehicles being driven haphazardly, is a place which says to newcomers and residents alike: this is a free-for-all, make your own rules, do as you please, do your best to survive. In such places – which is the January 2021 version of Madang town – the Rule of Law is at risk. Fundamental rights and freedoms are imperiled. The first category of Basic Rights acknowledged in the Preamble to the Constitution – “life, liberty, security of the person and the protection of the law” – is at stake.
24. Human rights are being infringed by the dilapidated road conditions in Madang town, as the road conditions affect all road users including pedestrians to the right to freedom based on law under Constitution, s 32(2), the right to the full protection of the law under the Constitution, s 37(1) and the right to freedom from acts (including acts of omissions) that are harsh and oppressive under Constitution, s 41(1).
99. Structure of Government.
(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.
(2) The National Government consists of three principal arms, namely:—
(a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and
(b) the National Executive; and
(c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.
(3) In principle, the respective powers and functions of the three arms shall be kept separate from each other.
(4) Subsection (2) is descriptive only and is non-justiciable. (emphasis added)
29. Inspiration is provided by the Constitution. As the Supreme Court emphasised in Namah v Pato (2014) SC1304 the Constitutional Laws of Papua New Guinea are not simply statements of general principle. They impose and confer real and enforceable powers, functions, duties and responsibilities, which exist by operation of the Constitution, without the need for supporting, machinery or procedural laws to bring them into effect.
“...freedom based on law, and accordingly has a legal right to do anything that—
(a) does not injure or interfere with the rights and freedoms of others; and”
22. Enforcement of the Constitution.
The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.
(Emphasis added)
57. Enforcement of guaranteed rights and freedoms.
(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. (Emphasis added).
(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.
166. Jurisdiction of the National Court.
(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.
(2) In particular, the National Court has the jurisdiction set out in—
(a) Section 22 (enforcement of the Constitution); and
(b) Subdivision III.3.D (enforcement); and
(c) Section 155 (the National Judicial System),
and otherwise as provided by this Constitution or any other law.
(3) Subject to any Act of the Parliament and to the Rules of Court of the National Court, the jurisdiction of the National Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.
(4) The jurisdiction of the National Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another Judge or other Judges.
(5) The jurisdiction of the National Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court. (Emphasis added)
A community of squatters, evicted from an informal settlement in Wallacedene had set up minimal shelters of plastic and other materials at a sports centre adjacent to Wallacedene community centre. They lacked basic sanitation or electricity. The group brought an action under sections 26(the right of access to adequate housing) and 28 (children's right to basic shelter) of the South African Constitution for action by various levels of government. The High Court, relying on the principles of judicial deference outlined by the Constitutional Court in the Soobramoney case, found that the respondents had taken “reasonable measures within available resources to achieve the progressive realisation of the right to have access to adequate housing” – as required by s. 26(2) of the Constitution. However, because the right of children to shelter in article 28 was not subject to available resources, the High Court held that the applicants were entitled to be provided with basic shelter. On appeal to the Constitutional Court the Court found no violation of s. 28 but found instead a violation of the right to adequate housing in s.26. The Court held that article 26 obliges the state to devise and implement a coherent, co-ordinated housing programme and that in failing to provide for those in most desperate need the government had failed to take reasonable measures to progressively realize the right to housing. The Court ordered that the various governments “devise, fund, implement and supervise measures to provide relief to those in desperate need.” The South African Human Rights Commission agreed to monitor and if necessary report on the governments' implementation of this order. <https://www.escr-net.org/caselaw/2006/government-republic-south-africa-ors-v-grootboom-ors-2000-11-bclr-1169-cc>
Judgment accordingly.
__________________________________________________________________
Public Solicitor: Lawyers for the Plaintiffs
Strategic Legal Services: Lawyer for the Fourth Defendants
Solicitor-General: Lawyers for the Seventh Defendant
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