IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 27 of 2000

IN THE MATTER OF: the Constitution of the Republic of Vanuatu

AND

IN THE MATTER OF: the Police Act [CAP. 105]

AND

IN THE MATTER OF: the Criminal Procedure Code [CAP. 136]

BETWEEN:

WORKING GROUP FOR JUSTICE
C/- of Sarakata, Luganville, Santo Vanuatu,
Representing Silas Michel, Donny Alick, Donald Berg, Leslie David, Mahlon Nelson, David Packet, Sam Ham, Wilson Haila, Leslie Joe, Batick Robinson, Philip Avock, David Shem, Erick Gideon, Kansen Tomaki, James Ulas, Pamela Uilas, Tasso George, Jules Bill, Bong Andeng, Allan Aru, Richard Tinning, Batick Massing, Johnde Mahit, Arnold Bong, Peter Mahit, Maltock Asher, Charley Ulas, Wycliff Ulas, Vira Lone, Ewen George, Macollen Ulas, David Simeon, Athur Bae
Plaintiffs

AND:

GOVERNMENT OF THE REPUBLIC OF VANUATU
Represented by the Attorney General, PMB 048, Port Vila, Vanuatu
First Defendant

AND:

POLICE COMMISSIONER,
PMB 014, Port Vila, Vanuatu
Second Defendant

Coram: Before Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Counsels: Mr Bill B. Tamwata for the Plaintiffs
Mr Tom Joe for the First and Second Defendants

Date of Hearing: 13th November, 2001,
14th November – (PM) and
18th, 19th, 20th and 21st December 2001.

Date of Judgment: 30th January, 2002.

ORAL JUDGEMENT

This is a human rights case. It concerns allegations by all the thirty-three plaintiffs herein that their fundamental rights guaranteed under Article 5(1) were breached by the Defendants during on police operation known as “Operesen Klinim Not 2000” (the Operation). Specifically those rights are Article 5(1) –

(b)	liberty
(c)	security of the person
(d)	protection of the law
(e)	freedom from in human treatment and forced labour
(i)	freedom of movement
(j)	protection for the privacy of the home and other property and from unjust deprivation of property.
(k)	equal treatment under the law or administrative action

The Operation was as approved by the First Defendant and carried out by Officers of the Second Defendant acting as agents and servants of the First Defendant during the period between December 1999 and February 2000. For the purposes of this judgment “Officers” mean police officers of all ranks and includes members of the Vanuatu Mobile Force of all ranks including a private.

The Plaintiffs alleged that during the Operation Officers of the Second Defendant who were arranged in special groups entered private property and houses and arrested each plaintiff. It started on or about 7th January 2000. Officers entered houses and forcefully grabbed each plaintiff, put them in trucks and took them over to Belotu Barracks where they were subjected to verbal abuses, physical assaults extending from undressing in an open field, dancing naked in pairs, pinching of private parts with pliers, kicking with boots, hitting with rifle butts and truncheons, licking boots and toilet brush. Arrests were carried out in the very early hours of the morning. It was alleged that arrests were done without bench warrants. It was further alleged that homes were searched without search warrants. It was further alleged that the Plaintiffs were detained at the prison cells at the Police Station for more than 24 hours without statements being obtained and without appearing before the Court. Further it was alleged that the plaintiffs were handcuffed and held in detentions without food or water, in unhygienic cell conditions. Further that they were refused medical treatment and denied medical reports. On those allegations the Plaintiffs allege that their respective fundamental rights in Article 5(1)(b), (c), (d), (e), (i), (j) and (k) were breached.

And the Plaintiffs claim that their arrests were unlawful, that their custody and detentions were unlawful, that entries and searches done by Officers were unlawful. Further that assault caused to their persons were unlawful and that their arrests amounted to unlawful kidnapping. They seek certain declarations, damages and costs.

All thirty-three plaintiffs except David Shem, Richard Tinning, Johnde Mahit and Peter Mahit gave oral evidence. They produced evidence also from three other independent witnesses namely Susan Bidal, Edwin Amile and Maxime Remy. All affidavits of the Plaintiffs were read into evidence and the plaintiffs were cross-examined thereon.

The Defendants called 9 witnesses, 8 of whom were officers of the Second Defendant. The ninth witness was Dr. Timothy Vocor. I need not go into detail of the evidence save to say that I have considered and weighed the evidence against the facts of the case and considering written submissions from both counsels, I arrive at the following findings and observations:-

(1)	The Plaintiffs were arrested without bench warrants and which arrests were not done in accordance with the proper procedure of arrests. Further that such arrests were made without due regard for the fundamental rights of the plaintiffs as stated. In my opinion those arrests were unlawful.

(2)	Some of the Plaintiffs homes were entered into by Officers and searched forcibly and without search warrants. In my opinion those entries were unlawful.

(3)	Some of the Plaintiff were detained for more than 24 hours without appearance in a Court of law seeking further remand. In my opinions detentions beyond 24 hours without further remand warrants from a Court of law were unlawful.

(4)	Some of the Plaintiffs were brutally beaten by officers with rifle butts, boots, truncheons and fists during the process of arrests.

(5)	Some of the Plaintiffs were inhumanely treated or dealt with by Officers. For example –

(i)	By pinching their private parts with pliers;
(ii)	By dancing naked in pairs before family members or relatives in an open field;
(iii)	By kissing the boots of an officer;
(iv)	By eating or licking toilet brush.

(6)	Some or all the plaintiffs were denied food, water, medication and treatment including a denial to excess to medical reports. In my opinion this is a denial to right to life under Article 5(1)(a) of the Constitution.

(7)	Some or all of the plaintiffs were kept and held in unhygienic cell conditions.

(8)	No emergency regulations were issued in respect of the Operation under Chapter 11 Articles 69, 70 and 71 of the Constitution suspending the fundamental rights of the Plaintiffs. Even if such regulations were issued; “……..no regulation shall (a) derogate from the right to life and the freedom from inhuman treatment and forced labour ………..”

(9)	In his evidence Superintendent Erick Pakoa referred to the Ministerial Orders authorising the Operations. He was in the best position to disclose such document but unfortunately he did not care to do so. In light of that serious omission, I must find that no such orders existed.

(10)	The evidence given by some of the witnesses on behalf of the First and Second Defendants lacked credibility and the Court will not place any weight on them. Specifically these are the evidence from –

(a)	Inspector John Pakoa Tarimas;
(b)	PC Jack Vira;
(c)	PC Iaken Amben; and
(d)	Pte Keith Langon.

(11)	Some of the Plaintiffs have had their cases dismissed for lack of evidence. Some have not even been prosecuted to date as no proper statements were ever obtained from them.

(12)	The Court prefers the evidence of the Plaintiffs and of their witnesses because they corroborate and confirm each other. For instance, the evidence of Pamela Ulas corroborates the evidence of her husband James Ulas. The evidence of Susan Bidal corroborates the evidence of Asher Maltok. The evidence of Maxime Remy corroborates most of the evidence of the Plaintiffs in regard to unhygienic cell conditions and the harsh treatment administered by Officers on the Plaintiffs.

(13)	In regard to the defence evidence the Court will not place too much weight on Dr Vocor’s evidence because it lacks credibility. The evidence of Inspector Kelson Bule was of no assistance in relation to the sixteen plaintiffs whose statements were not obtained and have never appeared before the Courts. In relation to the other sixteen who appeared in Court the evidence has no bearing or relevance to the issue of breaches of fundamental rights complained of by the plaintiffs.

(14)	Section 40 of the Police Act [CAP. 105] does not afford any defence to the Officers of the Second Defendant.

In his evidence Superintendent Erick Pakoa told the Court that his clear instructions was “to restore law and order in Luganville at any costs.”

The implication drawn from such statement is that the operation would be carried out regardless of individuals fundamental rights. That being so, nothing was done by Officers of the Second Defendant acting as agents and servants of the First Defendant during the Operation can be said to have been done in good faith in accordance with section 40 of the Act. That submission is rejected.

(15)	Section 19 of the Public Order Act [CAP.84] was submitted for consideration. It is correct to say that generally Police have the power to arrest persons without a warrant under the three given circumstances. However that provision must be read subject to the Constitution i.e. by observing the suspects rights to protection of the law, right to privacy of the home, right to life and right to freedom of inhuman treatment and forced labour.

(16)	Section 42 of the Firearms Act was submitted for consideration. This section empowers the Minister responsible to make regulations not inconsistent with the Act for the purposes of law and order restoration. I find no evidence of those regulations and therefore rule that section 42 is no relevance.

Conclusion

For the foregoing reasons the Plaintiffs must have judgment. I therefore pronounce and make the following Declarations and Orders:-

(1)	That each of the Plaintiff’s fundamental rights guaranteed under Article 5(1) were breached by Officers of the Second Defendant acting as agents and servants of the First Defendant and the State. These rights were –

(a)	right to life;
(b)	liberty;
(c)	security of the law;
(d)	protection of the law;
(e)	freedom of inhuman treatment ….;
(i)	freedom of movement;
(j)	protection for the privacy of the home …..;
(k)	equal treatment under the law.

(2)	The Plaintiffs’ rights regarding arrests, searches, keeping in custody and obtaining of statements were breached.

(3)	Order that the Defendants herein pay compensation to the Plaintiffs individually for these breaches. The sums submitted will be assessed by the Court. This entitlement is accorded by Article 6(2) of the Constitution.

(4)	Order that the Defendants herein pays the Plaintiffs’ costs of and incidental to this Action.

PUBLISHED at Luganville this 14th day of February, 2002.

BY THE COURT

OLIVER A. SAKSAK
Judge