N3918

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

MP NO 624 0F 2006

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 KIMBE POLICE LOCK-UP, WEST NEW BRITAIN PROVINCE

CANNINGS J

Kimbe: 22 June 2006
Waigani: 30 June 2006

REASONS FOR DECISION

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 28 detainees and inspected the conditions in which they 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 57 of the Constitution.

Held:

(1)	The Kimbe police lock-up is run-down, disgusting and a health hazard to the detainees and police officers. 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.

(2)	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
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up, (2006) N3022

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 G Pipike, for the complainants
F Popeu, for the State

30 June, 2006

1. CANNINGS J: This judgment gives my reasons for deciding to exercise the power of the National Court under 57(3) of the Constitution to order that immediate steps be taken to clean and fix the Kimbe police lock-up 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.

3. During May 2006 I received a number of informal complaints and concerns from members of the public about the condition of the Kimbe police lock-up. I wrote to the Provincial Health Adviser and asked him to inspect the facility and prepare a report for my consideration. I received the report on 19 June 2006.

4. On Tuesday 20 June 2006, I conducted an official 'visiting justice' visit of the Kimbe 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.

5. 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, 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.

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 PROVINCIAL HEALTH ADVISER'S REPORT

7. The report was prepared by the then Provinical Health Adviser, Mr Joshua Giru. He has since been appointed as Provincial Administrator. His report highlighted grave public health concerns about the condition of the lock-up. For example:

TOILETS

•	There is only one of the two original toilets being used by the remandees, but with great reluctance due to the state of the adjoining plumbing fixtures. The lone drain conveying excreta from the toilet pan to the septic tank is broken, therefore allowing excreta to be deposited outside the cell walls.

•	Run off from excessive rainwater has continued to carry raw sewage and solid wastes into the unused main cellblock carrying foul odour and subsequent deposit of human waste.

•	The other toilet has ceased to operate completely as a direct result of lack of maintenance and care.

•	Floors into the cellblocks and toilets covered with foul water from the toilet being used and tap water from a malfunctioning conveyance apply pipe. I personally thought bad about entering the cellblock and toilet areas because of the state of the facilities.

•	Walls very dirty and full of graffiti and algae where the walls meet the floor, a direct result of the stagnant water present continuously.

STRUCTURE

•	The Police Lockup constructed some 30 years ago has been neglected in terms of maintenance and is long overdue for demolition.

•	Roofing rusty and riddled with holes, therefore, contributing to rainwater entering the entire cellblocks. Remandees have been converging in the open cell areas regardless of their category. High risk and low risk remandees as well as minors continue to live together because the main cellblocks are not fit to be used in their current state.

•	Rafters and beams holding the roof structure have rotten to a stage where they cannot carry the weight of the roof resulting in the caving in of the corrugated roofing material.

LIGHTING/VENTILATION

•	Lighting within the main cellblocks, toilets and shower area are non-existent and light frames (electrical) are becoming death traps. Someone could easily commit suicide if they think fit or accidentally get electrocuted with water everywhere and leaking roof.

•	Ventilation within the entire main cell block including the two (2) unused cell blocks, toilets, shower and walk ways are so cramped that any form of ventilation will not be sufficient for the number of remandees kept at one time.

GENERAL OBSERVATIONS

The general outlook of the lockup is an indication of the conditions presented within. You even recognize the odour (Sewage) from the car park and the general office and duty counter of the Police Station. Refuse including food wrappers, plastics, buai skin, betel nut residue is seen outside the open cell areas and without regard for proper collection and disposal. I personally had to order the immediate removal of refuse during the inspection observed by members of the public and police personnel.

The continuous neglect and subsequent failure to seek funds and donations to maintain facilities left a very bad impression of the Police Department by the public.

THE DETAINEES

8. There were 28 detainees in the lock-up on the day that I inspected it. Many were emaciated and looking in very poor condition. The stench of human waste was nauseating. Some detainees had been there for several weeks. One detainee, Johnny Clement, had been detained after being picked up by the police for being drunk. He was in the lock-up for six days without being charged or brought before a court.

9. In the days following my visit I heard bail applications from a number of them. I granted bail to 16 detainees, after taking into account the inhuman conditions in which they were detained. I ordered the immediate and unconditional release of Johnny Clement, having been satisfied that his constitutional rights had been violated.

HUMAN RIGHTS OF DETAINEES IN A POLICE LOCK-UP

10. I now turn to consider the issue of compliance of the Kimbe 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.

11. 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.

12. 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.

13. 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.

14. 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?

15. I am left with no doubt in my mind that the answer to this question is Yes. The Kimbe police lock-up is run-down, and disgusting. It is nothing short of a national disgrace that a public facility like this can be in such an obviously unhealthy 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 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?

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

17. 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.

18. 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.]

19. 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.

20. I declare that the current condition and state of the Kimbe 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 Kimbe police lock-up.

ORDERS

21. The National Court makes the following orders under Section 57(3) of the Constitution, to enforce the rights of any person in future detained at the Kimbe 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 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 Provincial Administrator for West New Britain, the officer in charge of the Provincial Health Administration, PNG Power Limited; the Waterboard, 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 Commissioner of Police or his duly authorised delegate must attend the National Court at Kimbe on 20 July 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 Kimbe police lock-up for more than 48 hours except in an extreme and urgent case where there is an ongoing emergency and the Provincial Police Commander or Police Station Commander or the next most senior officer available decides on reasonable grounds that it is necessary to detain a person longer than 48 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 immediately after the end of the 48-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 three weeks after the date of this order.

(8)	Whenever a person is detained at Kimbe 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 the District Court or the National Court at Kimbe.

(9)	In the event that the court or judicial officer concerned orders that the detainee be further held in custody, such custody shall be at Lakiemata Correctional Institution.

Ordered accordingly.
____________________________

Public Solicitor/Paul Paraka Lawyers: Lawyers for the complainants
Public Prosecutor: Lawyer for the State