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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP NO 353 0F 2005
IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS UNDER SECTIONS 57 & 58 OF THE CONSTITUTION
BY:
NAIL LAMON
First Plaintiff
SINCLAIR MAFUK
Second Plaintiff
ANDREW WANGIAK
Third Plaintiff
MUPAPE MAP
Fourth Plaintiff
NAMURE KANAI
Fifth Plaintiff
AGAINST:
SENIOR CONSTABLE ZAKANG BUMAI
First Defendant
CONSTABLE HENRY ANGAU
Second Defendant
CONSTABLE SIMON NOKE
Third Defendant
CONSTABLE DANIEL KAPEN
Fourth Defendant
SERGEANT JOHN KUPANG
Fifth Defendant
CONSTABLE MATHEW BAKANI
Sixth Defendant
CONSTABLE JACK MOYAS
Seventh Defendant
COMMISSIONER OF POLICE
Eighth Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant
Madang: Cannings J
2008: 15, 27 May
17 September
JUDGMENT
HUMAN RIGHTS – enforcement – right to freedom – protection from inhuman treatment – right to liberty – freedom from forced labour – freedom from arbitrary search and entry – equality of citizens.
The police entered a village and arrested and detained a number of young men (the plaintiffs) on suspicion of involvement in a murder. The plaintiffs allege that they were subject to torture and inhuman treatment by the police and detained for an extended period without charge. They commenced proceedings under Section 57 of the Constitution seeking enforcement of their human rights. A trial was held to determine whether the defendants, including the State, were liable for breach of human rights.
Held:
(1) The plaintiffs adduced credible evidence. The defendants failed to adduce any evidence or attend the trial. The court found that the allegations were proven and made findings of fact accordingly.
(2) A number of the plaintiffs’ human rights were breached, viz
- right to freedom (Constitution, s 32);
- protection from inhuman treatment (Constitution, s 36);
- right to liberty (Constitution, s 42);
- freedom from forced labour (Constitution, s 43);
- freedom from arbitrary search and entry (Constitution, s 49).
(3) The claim for breach of the right of equality (Constitution, s 55) was denied.
(4) The plaintiffs established a cause of action for breach of human rights against all defendants, with damages to be assessed.
Cases cited
The following cases are cited in the judgment:
In the Matter of Enforcement of Basic Rights under the Constitution, Section 57, Re Release of Prisoners on Licence (2008) N3421
Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022
APPLICATIONS
This was a trial to determine whether the plaintiffs’ applications for enforcement of human rights should be upheld.
Counsel
W Akuani, for the plaintiffs
No appearance for the defendants
1. CANNINGS J: This is a human rights case. There are five plaintiffs, all young men from Sawoi and Suang villages in the Rai Coast district of Madang Province. They say that they are victims of human rights abuses committed by members of the Police Force at or near their villages in April 2004.
2. They say that the police entered Sawoi village at 4.30 one morning, and arrested and detained a number of them on suspicion of their involvement in a murder. They say that they were subject to torture and inhuman treatment and detained for three weeks without charge, before being brought to Madang and remanded in custody for a month. They were released by order of the District Court, after the police failed to pursue the case.
3. They have brought proceedings in the National Court under Section 57 of the Constitution seeking enforcement of their human rights.
4. The plaintiffs are:
5. The defendants are:
6. The Commissioner and the State are alleged to be vicariously liable for the actions of the police.
7. Section 57 of the Constitution is the provision that allows the National Court to make orders, such as damages (payment of compensation), against those who are responsible for breaching the human rights of others. ‘Human rights’ refer to the Basic Rights conferred on all citizens (and in some cases non-citizens) by Division III.3 of the Constitution.
8. These are not paper rights or mere expressions of principle. They are justiciable, legal rights. They can be enforced in the National Court and the Supreme Court, primarily under Section 57 but also under Sections 22, 23 and 155(4) (the national judicial system) of the Constitution (In the Matter of Enforcement of Basic Rights under the Constitution, Section 57, Re Release of Prisoners on Licence (2008) N3421).
9. What I have to determine in this case is whether the plaintiffs have established a cause of action for breach of their human rights. That is: have they proven that their rights were breached?
THE EVIDENCE
10. Each of the plaintiffs has sworn an affidavit, setting out their side of the story. This evidence has been corroborated by affidavits of five other people, community leaders from Sawoi, including the former member for Rai Coast in the National Parliament, Mafuk Gainda. Sawoi is in the Saidor LLG area of the Rai Coast District.
None of the defendants gave notice of their intention to defend this case. No affidavits were filed. They did not attend the trial and were not legally represented. I am satisfied, however, that they were all given notice of the trial and have been given ample opportunity to put their side of the story.
FINDINGS OF FACT
11. I am not bound to accept the plaintiffs’ evidence. I have not automatically adopted it. I have considered it on its merits.
12. I note that each affidavit is quite detailed. There are no material inconsistencies in the versions of events given in the affidavits. I have considered the possibility that the plaintiffs’ claims are bogus, that they have made up this story to extract compensation from the State. However, that is a remote possibility. I have taken into account the corroboration provided by the community leaders’ evidence. Also, the plaintiffs’ case has been carefully put together by a reputable law firm, William Akuani Lawyers, with expertise in human rights law.
13. The plaintiffs have proven on the balance of probabilities that the events they allege in their affidavits actually took place. I make findings of fact in accordance with their allegations and summarise them as follows. The events took place in 2004.
Monday 5 April
14. At 4.30 to 5.30 am a police squad entered Sawoi village and went to a boy house and arrested a group of young men, including plaintiffs Nail Lamon, Sinclair Mafuk and Namure Kanai. The police officers involved were:
15. The police suspected that the plaintiffs had murdered a local man, Dumeo Gumoi, who had gone missing. His body had not been found. The police were acting on information provided by a local glasman.
16. The police tied the hands of the arrested men with power lines. At 6.00 am, they took them to Saidor station, next to the airstrip. The police verbally abused them, accused them of killing Dumeo Gumoi and beat them with tree branches until they were bleeding.
17. At 7.00 am the police took them to Saidor police station. In the meantime the police had sent word that Mupape Map, the 4th plaintiff, had to go to the police station. By the time Mupape Map got to the police station, Nail Lamon and others were detained there, their hands tied together with power lines.
18. The arrested men were put into two groups. Some, including Nail Lamon and Namure Kanai, were left outside, in the open, all day, under the sun. Others, including Sinclair Mafuk, were beaten and interrogated.
19. Mupape Mark was kicked on different parts of his body. His left arm was broken. He was taken to Saidor Health Centre, where a POP cast was applied. He was also treated for other superficial injuries to his trunk, caused by being kicked.
20. Namure Kanai had his head pushed into a bucket of water for long periods. The bucket had stones in it and Namure Kanai lost five front teeth and was close to suffocation. He admitted, falsely, to being involved in killing Dumeo Gumoi and told the police he knew how it happened. The police apologised for injuring him and said they wanted to use him as an eye witness. He was later taken to Madang but escaped from the police lock-up.
21. That evening the police took one group to Saidor community hall, where they were detained. Others, including Sinclair Mafuk, were taken to a police officer’s house where they spent the night.
Tuesday 6 April
22. Snr Const Bumai interrogated Nail Lamon and others, threatened them and forced Nail Lamon to say that he had killed Dumeo Gumoi
23. Const Kapen forced Sinclair Mafuk to say that he had killed Dumeo Gumoi.
Thursday 8 April
24. Snr Const Zakang sent a message to Suang village for Andrew Wangiak to be brought to Saidor, so a Suang community leader brought him over.
25. Snr Const Zakang beat Andrew Wangiak with a tree branch and accused him of involvement in the murder of Dumeo Gumoi. He poured a bucket of water over him before detaining him in Const Angau’s house.
Friday 9 April
26. Andrew Wangiak was again beaten with tree branches and a cane by the police and told him to admit helping Nail Lamon and others kill Dumeo Gumoi. Andrew Wangiak felt as if he was going to die.
Saturday 10 April
27. Snr Const Bumai tied up Andrew Wangiak, forced him to admit killing Dumeo Gumoi and hung him from a tree (by the hands, it seems) from 9.00 am to 4.00 pm. Snr Const Bumai put fire ashes into a bucket of water and forced Andrew Wangiak to drink it, causing him to vomit.
Monday 12 April
28. Snr Const Bumai and other police forced Andrew Wangiak to dig up a grave, looking for the remains of Dumeo Gumoi. But they did not locate the body. Another villager accused Andrew Wangiak, in the presence of the police, of killing Dumeo Gumoi, cutting up his body and hiding parts of it. That villager hit Andrew Wangiak over the head with an iron road, causing him to bleed. The police joined in by threatening him with firearms. He was forced to admit to killing Dumeo Gumoi.
29. Based on Andrew Wangiak’s admissions, the police arrested Namure Kanai.
Mupape Mark was discharged from the health centre.
Tuesday 13 April
30. The police beat Andrew Wangiak and Namure Kanai with a cane and interrogated them about where they had hidden Dumeo Gumoi’s body. Andrew Wangiak made up a story that the body was hidden at Silau, so the police took them there, but no body was found. On the way back to Saidor, the police – Const Bakani and Const Moyas – beat them in the vehicle.
31. That night, the police took Andrew Wangiak and Namure Kanai to Const Angau’s house and tied them up with power lines.
32. Const Angau took Sinclair Mafuk to Snr Const Bumai’s house and forced him, first, to drink two pots of water, then, to put the pot over his head. In an attempt to extract an admission to the killing of Dumeo Gumoi, he hit Sinclair Mafuk with a tree branch, until he excreted and urinated.
Wednesday 14 April
33. Andrew Wangiak and Namure Kanai were taken from Saidor to Silau. They were assaulted on the way. At Silau they were forced to dig up another grave, but nothing was found. They were taken back to Saidor in the afternoon. On the way back they were again assaulted.
Thursday 15 April
34. Andrew Wangiak and Namure Kanai were taken from Saidor to Silau, to dig another grave. They again found nothing. They were taken back to Saidor in the afternoon. On the way they were again assaulted.
Monday 19 April
35. The police, led by Snr Const Bumai, took Andrew Wangiak and Mupape Mark to Sawoi cemetery where they were forced to weed the grass. They were interrogated in the presence of relatives of Dumeo Gumoi about where they had buried Dumeo Gumoi’s body. They were beaten with timber and cane sticks.
36. That night Andrew Wangiak was tied up and detained at Const Angau’s house.
Wednesday 21 April
37. Police reinforcements arrived from Ileg. At 9.00 pm, they went into the Saidor community hall, which was in darkness, flashed torches into the faces of Nail Lamon and others and pointed guns at their faces.
38. They took Nail Lamon outside and forced him to admit that he killed Dumeo Gumoi, put a mask over his face, then took him to Const Angau’s house, where they punched him and poured hot water on his back, causing his skin to peel off.
39. They also took Sinclair Mafuk out of the hall and tried to get him to admit to killing Dumeo Gumoi. The police put cartridges into Sinclair Mafuk’s hands, then put them into a gun and pointed the gun at his head. Sinclair Mafuk refused to make an admission so he was taken to Const Angau’s house where he was beaten physically. He still refused to admit killing Dumeo Gumoi, so he was taken to a tree, and hung from the tree by the neck with his own belt, until the belt broke.
40. They went to Const Angau’s house, pointed a gun at Andrew Wangiak and hit him on the head with a stone and forced him to admit killing Dumeo Gumoi. The police then took Andrew Wangiak outside, to join Nail Lamon, Sinclair Mafuk and Mupape Mark (who had been brought there from his house).
41. The Ileg police told Mupape Mark he would be killed if he did not admit to killing Dumeo Gumoi. They put a gun to his head and he admitted to the killing.
42. The plaintiffs were each ordered to hold a carved, wooden penis, and forced to put it into their mouths and say "Swit ya!". The police laughed at them.
43. Const Kapen fired a warning shot near Nail Lamon and Andrew Wangiak.
44. Const Kapen became frustrated with Sinclair Mafuk and told him to lie face down on the gravel road, then shot him in the left leg with a pistol. He ordered Nail Lamon to wrap a singlet around Sinclair Mafuk’s leg, which he did. Nail Lamon, Andrew Wangiak and Mupape Map were ordered to carry Sinclair Mafuk to the Saidor Health Centre. Those orders were complied with.
45. Sinclair Mafuk was bleeding heavily.
Thursday 22 April
46. At the hospital, at about 1.00 am, a police officer poked Sinclair Mafuk in the eye with his fingers, while he was awaiting treatment.
47. Two Ileg police officers put lime powder on the faces of Nail Lamon and Andrew Wangiak and ordered them to the back of the police vehicle. The police forced Nail Lamon, at gunpoint, to sodomise Andrew Wangiak; then forced him to put his penis into Andrew Wangiak’s mouth.
48. At about 5.30 am, Nail Lamon and Andrew Wangiak were forced to carry Sinclair Mafuk to Const Angau’s house, where they were interrogated and forced to admit, again, to the killing of Dumeo Gumoi.
49. Later that morning Nail Lamon and Andrew Wangiak were taken to the Saidor community hall, where the other arrested men were still being detained. The police were assaulting those men and forcing them to say that they killed Dumeo Gumoi and putting lime powder on their faces.
50. The police took the arrested men, including Mupape Mark (still suffering from a broken arm) to a graveyard. They were forced at gunpoint to dig up a grave. They uncovered the remains of a deceased person, Lensky Wapne. The police assaulted the plaintiffs there too.
51. The police took Nail Lamon and Andrew Wangiak to Damui Creek, where their photos were taken and they were forced to admit that they had put Dumeo Gumoi’s body on a bamboo bed.
52. On the way back to Saidor the police beat some of the arrested men, including Mupape Mark, with an axe. Mupape Mark had a gun pointed at his head and he was forced to admit knowing Nail Lamon and Sinclair Mafuk.
53. The police used a gas lighter to set fire to Mupape Mark’s hair, then did the same thing to Sinclair Mafuk. They then singed their necks with burning firewood.
54. The police set fire to the boy house, which had been raided on April 5.
55. At 1.00 pm the police took the arrested men to the Lagap Wharf, where they were put on a ship, MV Pundok, to Madang.
Friday 23 to Tuesday 27 April
56. The ship arrived at Madang at 12.30 am on Friday the 23rd. The arrested men were taken to the Jomba police lock-up and detained there until Tuesday the 27th.
Tuesday 27 April to Tuesday 25 May
57. On April 27th they were taken to Madang District Court for mention, then remanded in custody at Beon Jail.
58. On 25 May they were discharged from custody by order of the District Court after the police offered no evidence against them.
BREACH OF HUMAN RIGHTS
59. The plaintiffs have proven that their human rights, entrenched by various provisions of Division III.3 of the Constitution (Basic Rights), were infringed in the following ways.
The right to freedom
60. There are two aspects of this right. First, a person has the right to do what he or she wants to do – to be free – provided it does not interfere with others and it is not prohibited by law. Secondly, a person cannot be forced to do anything that the law does not require.
61. Section 32 (right to freedom) states:
(1) Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.
(2) Every person has the right to 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
(b) is not prohibited by law,
and no person—
(c) is obliged to do anything that is not required by law; and
(d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).
(3) This section is not intended to reflect on the extra-legal existence, nature or effect of social, civic, family or religious obligations, or other obligations of an extra-legal nature, or to prevent such obligations being given effect to by law.
62. The police breached the plaintiffs’ right to freedom by forcing them to do a number of things that, by law, they were not required to do. For example:
Freedom from inhuman treatment
63. Every person has the right to be treated humanely, not tortured. This right is particularly pertinent when people are detained in custody.
64. 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.
65. 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.
66. 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.
67. The police breached the plaintiffs’ right to be treated with humanity in a number of respects. For example:
Right to liberty
68. Section 42 bolsters the right to freedom based on law, by saying that a person can only be deprived of their liberty in certain situations.
69. For example, Section 42 (1) says:
No person shall be deprived of his personal liberty except ...
(d) upon reasonable suspicion of his having committed, or being about to commit, an offence.
70. In the present case, the police officers, arguably, had reasonable grounds on which to suspect that the plaintiffs had committed the offence of murder. So their arrest and detention of the plaintiffs and their use of reasonable force to keep them in custody might have been, to that limited extent, lawful.
71. However, it is what the police did – and did not do – after they arrested the plaintiffs that is more contentious.
72. Sections 42(2) and 42(3) spell out the rights of person who is arrested and detained.
(2) A person who is arrested or detained—
(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,
and shall be informed immediately on his arrest or detention of his rights under this subsection.
(3) A person who is arrested or detained—
(a) for the purpose of being brought before a court in the execution of an order of a court; or
(b) upon reasonable suspicion of his having committed, or being about to commit, an offence,
shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer.
73. The police breached the plaintiffs’ rights under Section 42(2) by, for example:
74. The police breached the plaintiffs’ rights under Section 42(3) by, for example:
"Without delay" in Section 42(2) means immediately (Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022).
Freedom from forced labour
75. Section 43(1) states:
No person shall be required to perform forced labour [as defined by s 43(2)].
76. The police breached the plaintiffs’ rights not to be subject to forced labour by:
Freedom from arbitrary search and entry
77. Section 44 states:
No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—
(a) that makes reasonable provision for a search or entry ... [eg the Arrest Act and the Search Act]; or
(b) that complies with Section 38 (general qualifications on qualified rights).
78. The police breached the plaintiffs’ rights to freedom from arbitrary search and entry by, for example:
RIGHT TO EQUALITY
79. Mr Akuani submitted that the plaintiffs’ right to equality was breached. Section 55(1) of the Constitution states:
Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.
80. The argument is that the plaintiffs are all citizens and because they were suspects in a criminal investigation they were discriminated against by the police. I see no merit in this argument. The plaintiffs were not singled out for special treatment because they come from particular villages or clans or because they have any other common characteristic. It just happened that the information received by the police – sketchy and unreliable as it was – pointed to them being suspects.
81. I decline the claim for breach of the right of equality.
COSTS
82. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.
JUDGMENT
83. I direct entry of judgment in the following terms:
(1) The plaintiffs have established a cause of action for breach of human rights against all defendants, in the manner set out in this judgment, with damages to be assessed.
(2) Costs of the proceedings shall be paid by the defendants to the plaintiffs on a party-party basis, to be taxed if not agreed.
Judgment accordingly.
Lawyers for the plaintiffs:William Akuani Lawyers
Lawyers for the defendants: Nil
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