N4976

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 726 0F 2006

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS
AND HUMAN RIGHTS UNDER THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
SECTION 57

AND

THE CONSTITUTION OF THE
AUTONOMOUS REGION OF BOUGAINVILLE, SECTION 183

RE CONDITIONS OF DETENTION AT BUKA POLICE LOCK-UP AND THE NEED TO SECURE FUNDING FOR,

BUILD AND EQUIP A PROPER CORRECTIONAL INSTITUTION
FOR THE AUTONOMOUS REGION OF BOUGAINVILLE

CANNINGS J

Buka: 28, 29 September 2006
Kimbe: 6 October 2006

HUMAN RIGHTS – conditions of detention for detainees – prisoners and remandees – police lock-up – need for conditions of detention to comply with constitutional requirements – Constitution of the Independent State of Papua New Guinea, Section 36: freedom from inhuman treatment – Section 37: protection of the law – Constitution of the Autonomous Region of Bougainville, Section 178: basic rights.

CONSTITUTIONAL LAW – Basic Rights – enforcement of basic rights – Constitution of the Independent State of Papua New Guinea, Section 57: enforcement of guaranteed rights and freedoms – Constitution of the Autonomous Region of Bougainville, Section 183: 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.

This is a follow-up of orders made by the National Court on 25 August 2006. The court made orders then to deal with two pressing human rights matters: the existing condition of the Buka police lock-up and the need to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency.

Held:

(1)	The orders of 25 August 2006 concerning the Buka police lock-up remain in force and are supplemented by a further order that a progress report be filed, in affidavit form, to the court on 25 October 2006 with a view to completing remedial work by 25 November 2006.

(2)	As to the need to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency, the Administrator of the Autonomous Region of Bougainville and the Commissioner of the Correctional Service are to file progress reports, on a monthly basis, until the court is satisfied that this pressing human rights issue has been resolved.

Cases cited

The following cases are cited in the judgment:

In the matter of applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06

ENFORCEMENT OF BASIC RIGHTS AND HUMAN RIGHTS

This is an enforcement of basic rights, also known as human rights, by the National Court acting on both application and its own initiative.

Counsel

C Siriosi, for the Administrator of the Autonomous Bougainville Government
D Piandi, for the Commissioner of the Correctional Service
K P Isari, for the Commissioner of Police
P Kaluwin, for the applicants
R Luman, for the State

6 October, 2006

1. CANNINGS J: These are my reasons for making further orders regarding two matters:

•	the Buka police lock-up; and

•	the need to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency.

2. On Friday 25 August 2006 I made orders under Sections 57(1), 57(3) and 57(5) of the National Constitution and Sections 183(1), 183(3) and 183(5) of the Bougainville Constitution, to enforce the rights of any person in future detained at the Buka police lock-up or detained in custody under a sentence or other order of a court on Bougainville. The jail at Kieta was destroyed during the Bougainville Crisis and Bougainville still does not have a proper jail. The Buka police lock-up is being used as a jail. Many convicted prisoners are serving their sentences at the lock-up, which was not designed for that purpose. They are mixed together with people who have been detained for short periods after arrest and with remandees, those charged with offences and in custody awaiting trial. The conditions in which the detainees are being kept are deplorable. As explained in my judgment of 25 August 2006 the lock-up is overcrowded, there are no sleeping facilities and no proper sanitation or water supply. It is a health hazard to the detainees and everyone working nearby. Detaining any person there for more than a short period amounts to 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 National Constitution and Section 178 of the Bougainville Constitution. To enforce those human rights I made these orders:

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 President of the Autonomous Bougainville Government, the officer in charge of the Bougainville Health Administration, the Commissioner of the Correctional Service, PNG Power Limited; the Buka Town Council, the Assistant Commissioner of Police for Bougainville and the Buka Police Station Commander, 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 Administrator of the Autonomous Bougainville Government, the Commissioner of Police and the Commissioner of the Correctional Service or their duly authorised delegates must attend the National Court at Buka on 25 September 2006 and inform the Court of the steps being taken to (a) give effect to order No 1 and (b) secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency.

5	The entire facility must be hosed and cleaned and a reliable supply of fresh running water reconnected within one week after the date of this order.

3. The orders covered two pressing human rights matters:

•	the existing condition of the Buka police lock-up (order Nos 1, 2, 3, 4(a) and 5); and

•	the need to secure funding for, and build and equip, a proper correctional institution for Bougainville as a matter of urgency (order no 4(b)).

4. I returned to Buka on Wednesday 27 September 2006 (a little later than planned due to flight delays) and stayed until Saturday 30 September 2006. I completed part-heard matters and delivered judgments in six cases, reserved from the August 2006 circuit, heard bail applications and conducted further hearings regarding the two pressing human rights matters referred to. I visited the lock-up on Thursday 28 September 2006 in the company of the lawyers representing the parties involved and the Assistant Commissioner of Police for Bougainville, Paul Kamuai.

THE EXISTING CONDITION OF THE BUKA POLICE LOCK-UP: ORDER NOS 1, 2, 3, 4(a) AND 5

5. On Thursday 28 September 2006 the lock-up had 68 detainees, comprising 29 convicted prisoners and 39 remandees. This was a significant reduction from the total of 103 who were being detained on the date of my previous visit, Friday 18 August 2006. This was largely due to my granting bail to 41 remandees in a special bail hearing at the end of the August 2006 circuit. (I granted bail to a further four on Friday 29 September 2006.) 68 detainees is still, however, too many. The 29 convicted prisoners should be in a proper jail, where proper health and hygiene prevails and where they can be rehabilitated and corrected. To my disappointment order No 5 – hose and clean the facility and reconnect a reliable supply of fresh running water, by 1 September 2006 – had not been complied with. The lock-up was still in a filthy, disgusting condition. It is a miracle that there has been no breakout of disease amongst the detainees. I was given the reasons for the failure to comply with the order. A new Davey water pump, weighing 27 kilograms, paid for already by the Department of Police, had been purchased two weeks previously but was still at the Air Niugini cargo depot at Jackson's Airport, Port Moresby, its transport to Buka delayed as the Air Niugini flights had been filled to capacity in recent times. This was a lamentable excuse but the problem was resolved when the local Air Niugini manager was brought into court the following day for a 'please explain'. The pump arrived on Saturday morning's flight and has since been installed. I understand the water supply has been reconnected. However, it never pays to assume such things and I want evidence of this before I am satisfied that order No 5 has been complied with.

6. As for order Nos 1, 2 and 3 – cleaning and renovating the lock-up to make it a suitable facility for detaining persons – I was assured by Mr Isari of the RPNGC Legal Branch that this is well in train. He was accompanied to Buka by the department's Chief Buildings Officer, Mr Gabriel Ikupu, who had already called tenders and selected a contractor and will supervise and certify the work required. Mr Ikupu has recently been involved in supervising compliance with similar orders I have made, enforcing the human rights of detainees, at the Bialla and Kimbe police lock-ups in West New Britain. (In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022; In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06.) Mr Isari notified the court that an agreement had been reached between the Police Department, the Correctional Service and the ABG that they would jointly meet the cost of the cleaning and renovation of the lock-up. He said the total cost would be in the order of K15,000.00, which is much less than the total sum of K67,000.00 spent on fixing the Bialla and Kimbe lock-ups. K15,000.00 seems a paltry sum and causes me to wonder why those in authority have to wait until a court order is made before doing something about solving such an obvious, critical human rights issue; especially as I raised the alarm in a written judgment 18 months ago and my brother Justice Sevua has been raising the same concerns repeatedly in his Honour's circuit visits to Bougainville. (See In the matter of applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819.)

7. We are raising these issues in this way as it is our duty as Judges to do so. The National Constitution, and also the Bougainville Constitution, state that the National Court has the power and the duty to enforce human rights. Judges in this country do not have the luxury of just being able to sit in court and wait for parties to come to them to resolve their disputes. The duty of a Judge in PNG is to enforce the human rights, as prescribed by the Constitution, and to do so on application or on his or her own initiative, as the circumstances require it. Circumstances require it on Bougainville as other arms of government and the leaders with responsibility for them have not been doing their job. I am satisfied that genuine progress has been made towards complying with order Nos 1, 2 and 3. I have imposed a three-month deadline for renovating the lock-up: 25 November 2006. I will not change that as I am confident that it will be achieved. I will supplement it by ordering a progress report be filed on 25 October 2006. I expect that this will provide evidence of compliance with order No 2: that there be meaningful consultation with all relevant authorities. Meetings should be held regularly and minutes kept, so that all the authorities share ownership of the problem, and the solution.

NEED TO SECURE FUNDING FOR, AND BUILD AND EQUIP, A PROPER CORRECTIONAL INSTITUTION FOR BOUGAINVILLE AS A MATTER OF URGENCY: ORDER NO 4(b)

8. Mr Siriosi of the Autonomous Bougainville Government and Mr Piandi of the Correctional Service notified the court of the steps that have been taken over the last two years on this matter. They were able to convince me that the issue had been discussed, and that at one stage the Correctional Service was planning to set up a temporary jail on Sohano Island. Overtures have been made to the Australian Government aid agency, AusAID, and the figure of K3 million has been bandied around as the money required to build a jail. Different sites have been identified but landowner issues have interrupted progress. The ABG's most recent favoured site is at Solos. Mr Siriosi notified the court that land transfer instruments have been lodged in Port Moresby and once the land is secured the project can be expedited. Mr Piandi, indicated, however, that the Correctional Service has reservations about the site, from a logistical and security point of view. AusAID appears reluctant to commit to the project unless there is agreement between the ABG and the Correctional Service on how the new jail would be funded and maintained once it is built.

9. I have seen no evidence yet that those with political responsibility for law and justice matters and correctional service matters on Bougainville appreciate the problems that exist with the Buka police lock-up or understand the need to build a proper jail. I will therefore make orders calculated to seeing that these issues do not drag on and on and there is all talk and no action, for another 18 months. The National Court must be kept informed of progress.

POWER TO MAKE FURTHER ORDERS 

10. I reiterate that the National Court has the power and duty under Section 57 of the National Constitution and Section 183 of the Bougainville Constitution to protect and enforce the basic rights; and that power and duty can be exercised either on its own initiative or on application by an interested party. I rely in particular on Sections 57(1), (3) and (5) (enforcement of guaranteed rights and freedoms) of the National Constitution, which state:

(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. …

(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). …

(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. …

Equivalent provisions are found in Section 183 of the Bougainville Constitution. For example, Section 183(1) states:

Human rights shall be protected by, and are enforceable in the Bougainville High Court, the Supreme Court or the National Court either on the initiative of the Court itself 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.

These are court orders and any person who fails to obey them will be summoned before the court to show cause why he or she should not be charged with contempt.

ORDERS

11. The National Court makes the following orders under Sections 57(1), 57(3) and 57(5) of the National Constitution and Sections 183(1), 183(3) and 183(5) of the Bougainville Constitution, to enforce the rights of any person in future detained at the Buka police lock-up or detained in custody under a sentence or other order of a court on Bougainville, 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), the right to be treated with humanity and with respect for the inherent dignity of the human person under Section 37(17) of the National Constitution and the right of an offender not to be transferred to an area away from that in which their relatives reside under Section 37(20) of the National Constitution:

1	The deadline for compliance with order Nos 1, 2 and 3 in MP No 726 of 2006 is, for the avoidance of doubt, 25 November 2006.

2	The Commissioner of Police or his duly authorised delegate shall file a progress report in relation to order Nos 1, 2 and 3, in affidavit form, by 25 October 2006, in the National Court at Kimbe (that being the registry at which the file for this matter is maintained).

3	The Commissioner of Police or his duly authorised delegate shall file a progress report in relation to order No 5, in affidavit form, by 13 October 2006, in the National Court at Kimbe.

4	The Administrator of the Autonomous Bougainville Government and the Commissioner of the Correctional Service or their duly authorised delegates must each file a monthly progress report, in affidavit form, by the 25th day of each month, detailing the steps already taken to secure funding for, and build and equip a proper correctional institution for Bougainville as a matter of urgency; until further order by the Court.

5	The Administrator of the Autonomous Bougainville Government, the Commissioner of Police and the Commissioner of the Correctional Service or their duly authorised delegates must attend the National Court at a time and place to be notified, to inform the Court of progress on all of the above matters.

Ordered accordingly.
_____________________________________________________

C Siriosi: Lawyer for the Administrator 
D Piandi: Lawyer for the Commissioner of the Correctional Service	
K P Isari: Lawyer for the Commissioner of Police
Public Solicitor: Lawyer for the applicants
Public Prosecutor: Lawyer for the State