N3886

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 14 of 2010

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

RE LACK OF CORRECTIONAL SERVICE (CS) FACILITIES IN ENGA PROVINCE

Wabag: Ellis J
2010: 2 February

REASONS FOR DECISION

HUMAN RIGHTS – conditions of detainees – lack of facilities for prisoners in Enga Province – a prison with no prisoners in Mukurumanda – Police cells in Wabag condemned by the Department of Health – prisoners from Enga Province held in Western Highlands Province – conditions in Baisu prison near Mount Hagen in Western Highlands Province

CONSTITUTION - rights – breaches of basic rights set out in sections 36, 37(1), 37(17) and 37(18) – enforcement of basic rights under section 57 by the court on its own initiative

Cases cited:

Ana Komidese and others v Commissioner of Correctional Services [1985] PNGLR 212
In The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumbi and Andrew Amid [2005] PGNC 139; N2819 (23 March 2005)

2nd February, 2010 

1	ELLIS J: Introduction: "The rule of law" is a phrase used to describe the system under which people are governed by laws passed by parliament and the courts determine whether one of those laws has been broken and, if so, what orders should be made. For example, when a judge hears a criminal trial, the question to be decided is whether one of the laws of Papua New Guinea, usually a section of the Criminal Code, has been broken by the accused person and, if so what should be the punishment.

2	The Constitution of the Independent State of Papua New Guinea (the Constitution) sets minimum standards in a number of areas which are called basic rights (sometimes referred to as human rights). When it appears that those basic rights have been breached, it is not necessary for a judge to wait for someone to make an application and present the case in support of the alleged breach since a judge is permitted to commence an inquiry in order to decide whether those basic rights have been breached and, if so, what orders should be made by the court. This is such a case, arising from the conditions under which people from Enga Province who have either been sentenced to prison or are awaiting trial are currently being held. 

Basic rights in the Constitution

3	There are many basic rights set out in the Constitution. They include such basic rights as the right to vote and freedom of religion. Only those relevant to these proceedings are set out below.

4	Section 36, headed "Freedom from inhuman treatment", says:

"No person shall be submitted … to treatment that is cruel or otherwise inhuman, or is inconsistent with the inherent dignity of the human person."

5	Section 37 is headed "Protection of the Law". It has many sub-sections. Again, only those relevant to these proceedings are set out below.

"(1)	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.

(4) 	A person charged with an offence –

(a)	shall be presumed innocent until proved guilty according to law…"

(17)	All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(18) 	Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(20)	An offender shall not be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause and, if such a transfer is made, the reason for doing so shall be endorsed on the file of the offender.

6	Obviously, it was not enough to just set out basic rights in the Constitution: it was also necessary to set out how those basic rights may be enforced. That is why section 57, headed "Enforcement of guaranteed rights and freedoms" was included in the Constitution. Set out in full, it reads as follows.

(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.

Prison visits by judges

7	The effect of sections 144, 145 and 148 of the Correctional Service Act 1995 is that a judge in Papua New Guinea may inspect prison facilities at any time in order to do such things as:

(a)	inquire into the treatment and conduct of the detainees; and

(b) 	inspect and observe the correctional facilities and programmes; and

(c) 	hear any complaints made to him by members; and

(d) 	review the document of commitment of every detainee received into the correctional institution since the last visit of a judge or magistrate for apparent error or excess and to assist a detainee in the initiation of a review if appropriate; and

(e) 	hear and determine appeals from hearings by the Commanding Officer of offences committed by detainees; and

(f) 	inquire into such matters as he thinks fit or the Commissioner directs.

8	These proceedings were commenced by me as a result of deciding to inquire into the treatment and conditions of detainees from Enga Province when I was recently appointed to be the resident National Court judge in Wabag.

The criminal justice system

9	For the benefit of those with little or no experience of the legal system in Papua New Guinea in relation to criminal cases, the following summary is provided. When the Police believe they have enough evidence to prove that someone has committed a crime, they charge that person. In between the time when that person is charged and when the court decides his/her case, they are either released back into the community (on bail) or they are kept in prison (on remand). Since section 37(4) of the Constitution requires that people are presumed innocent until proven guilty, people who are on remand have a different status to those who have been convicted (ie found guilty by a court). When brought before court, a person may enter a plea or guilty or not guilty. If the plea is not guilty then a trial is conducted. Those who are found not guilty are released. Those who are found guilty and those who plead guilty are convicted and then sentenced.

10	For less serious crimes, the case is heard by a Magistrate in the District Court. For more serious crimes, the District Court Magistrate conducts what is known as a committal hearing to make sure there is enough evidence to justify sending the case for hearing in the National Court. Until he or she can be brought before a District Court magistrate, a person charged with a crime (commonly called the accused) will usually be held in a cell at the Police Station. 

11	In these reasons for decision I will use the words "detention facilities" to cover: 

(a)	people held in Police cells before being brought before a Magistrate;

(b)	people held in prison before having their case heard by a court;

(c)	people held in prison after having their case heard.

12	It is important to remember that those in group (a) and (b) have different status since they are innocent until proven guilty while people in group (c) have been sentenced to imprisonment for reasons which include punishment. Put another way, it is unjust to punish people before they are found guilty of the offence with which they have been charged. Recognition of that different status is found in section 37(18) of the Constitution (set out above) which requires that accused persons be kept separate from convicted persons.

13	Some people may think that imprisonment is all about punishment: putting the person in prison and throwing away the key. It is because imprisonment is also about rehabilitation that prisons in Papua New Guinea are properly called Correctional Institutions. Many people in Papua New Guinea are subsistence farmers. They know that if they plant sweet potato they harvest sweet potato, not carrots. Put another way, if a person is treated like an animal then they will behave like an animal. Judges and magistrates do not send people to prison because they are a menace only to find them come out as a monster because of the way they have been treated while in prison.

14	In addition to punishment and rehabilitation, prison is about protecting law-abiding people by helping to make their communities safe. Attempts are currently being made to recapture a number of escapees. When prison conditions are sub-standard, prisoners are more likely to want to escape. At the risk of stating the obvious, when prisons are over-crowded the risk of escapes increases because there are too few CS officers guarding too many prisoners. Of course, when insufficient money is spent on prison facilities then more escapes will occur, such as when there is not enough money to maintain the prison fence!

15	To summarise, sub-standard conditions in detention facilities (1) impose improper punishment, (2) reduce the likelihood of rehabilitation, and (c) increase the risk of escape. With the benefit of those explanatory matters, I proceed to summarise what I saw in my recent visits to detention facilities in Enga Province.

A prison with no prisoners

16	At Mukurumanda, about 20 minutes' drive from Wabag, is Enga Province's answer to Slim Dusty's "The Pub With No Beer": the prison with no prisoners! On Thursday last week I visited that 4.5 hectare site and learned that it is planned to hold 300 prisoners. Houses for the CS officers have been constructed – they were completed in 2002. CS officers moved into those houses almost seven years ago, in June 2003. There are 22 officers (19 men and 3 women) who wear their uniform but have no prisoners to look after. I gained the clear impression during the course of that visit that those CS officers are embarrassed about that situation. They were able to show me where the prison cells are to be constructed and advised me that plans have been prepared for the construction of those cells.
 
17	It must be observed that Enga Province appears to be the only province in Papua New Guinea without any prison. The practical consequences of that situation include:

(1)	separation from family and friends which reduces the prospect of rehabilitation;

(2)	a severe adverse impact on the ability to speak with the lawyer from the Public Solicitor's Office in Wabag in relation to matters such as:

(a)	an application for bail;

(b)	preparation for a trial;

(c) 	lodgment of an appeal; and

(d)	completion of affidavits and other court documents;

(3)	an increased risk of escapes; and

(4)	increased travelling time and distance to and from court hearings.

18	The words of section 38(20) of the Constitution reveal that transferring a prisoner away from the area in which he or she lives is a significant matter since it requires that such action only occur for reasons of "security or other good cause". It might be said that there is a good cause for housing Engan prisoners at Baisu prison because there are no prison facilities in Enga Province. However, if failing to provide any prison facilities in Enga Province is of itself a breach of the basic rights set out in the Constitution then the position would be that by breaching one basic right (failing to build a prison in Enga Province) it can be suggested that another basic right (having a prison in Enga Province) is not infringed! 

19	I resisted the temptation to inspect the files of the Engan prisoners in Baisu to see if there was compliance with the specific requirement of section 38(18) of the Constitution, that the reason for transferring an Engan prisoner to Baisu should be endorsed on his or her file although I suppose it might be said that housing Engan prisoners at Baisu does not involve a breach of section 38(18) of the Constitution because there was no transfer from a prison facility in Enga Province because there is no such facility!

Condemned police cells

20	Last Thursday, on my return from Mukurumanda, I also visited the police cells in Wabag. Located behind the Police Station, they appear to have been built in the 1950's, perhaps earlier. A blind man could find those Police cells from a distance of about 15 metres due to the unmistakable stench of stale urine. As the water system is not working, there is no running water and that is why water is being conveyed by a hose into a tub. The toilets do not work in that they do not flush and some are clogged. There is no electricity which means there are no lights. The six cell areas are often required to house between 20 and 30 prisoners are rarely less than 5. In addition to a sub-standard "cook house", the condition of the building is such that those who are locked up in that facility could seek to escape by digging underground.

21	Since there are no facilities for prisoners at nearby Mukurumanda, the only option to relieve overcrowding is to send people to Baisu prison at Mount Hagen. That may solve the overcrowding problem in the Police cells at Wabag but it does so by adding to the overcrowding problem at Baisu. Further, transfers to Baisu involve additional time, as it is a four hour trip each way. Such trips also divert staff from their usual duties and causes additional transportation costs. Most importantly, such transfers subject police and CS officers to an avoidable risk and increase the opportunity for escapes to occur.	

22	Since the police cells in Wabag were condemned by the Department of Health in November 2008, more than 15 months ago, it follows that sections 36 and 37(17) of the Constitution have been breached every time a person has been placed in those cells since November 2008 and such breaches will continue day by day unless and until the Police cells are replaced.

23	There are two ways that objective could be achieved and both are being pursued. First, by the provision of funds by the National Government. Secondly, by the tax credit scheme which applies to the company conducting the Porgera gold mine. That tax credit scheme may be summarised by saying that instead of paying taxes to the National Government which are then spent on a project by the National Government, the company conducting the Porgera mine can spend money on that project and claim that amount as a tax deduction so as to reduce the amount of tax it would otherwise have paid.

24	As the Police cells in Wabag have been condemned, their replacement is a question of when rather than if. Hence, the only question is who will provide the money first: the National Government or the company conducting the Porgera gold mine. I have been advised that the current position is that an engineer has yet to complete a detailed design study of a proposed two-storey facility. Plainly, it is desirable that planning for a new facility proceed in anticipation of money becoming available in order to avoid further delays.

A prison with too many prisoners

25	Since there are no CS cells in Mukurumanda and as the Police cells in Wabag have been condemned, the number of prisoners in Baisu has increased substantially. Having visited the Police cells in Wabag and the CS facilities in Mukurumanda last Thursday, I visited the prison in Baisu, near Mount Hagen, last Saturday and again the following day. I obtained a helpful schedule of those held at that facility, subdivided by category.

26	The break-up of all those held at Baisu, as at last Saturday was as follows:

OVERALL	Convicted	On remand	Total	
				
Adult males	139	159	298	
Adult females	23	14	37	
Juvenile males	40	14	54	
Juvenile females	0	0	0	
				
Totals	202	187	389	
27	How many of those are from Enga Province? The following table sets out the figures:

ENGANS ONLY	Convicted	On remand	Total	
				
Adult males	70	53	123	
Adult females	8	2	10	
Juvenile males	31	6	37	
Juvenile females	0	0	0	
				
Totals	109	61	170	

28	A number of points are revealed by those figures:

(1)	44% (170 out of 389) of those held at Baisu are Engans

(2)	For the overcrowding at Baisu to be overcome, the Engans have to be removed;

(3)	If the Engans could be removed to Mukurumanda, the prison population at Baisu would reduce from an overcrowded 389 to a manageable 219. 

(4)	There are 61 Engan remandees at Baisu who could be removed if an interim remand facility at Mukurumanda is constructed as a matter of urgency.

29	At Baisu there are 5 cells for convicted persons and 2 cells for those on remand. When I inspected the remand cell for males awaiting trial in the District Court, I found that there were 89 in a cell intended to accommodate 40. When asked to assume their sleeping positions, I observed that while they could all lie on the floor, they could not move without disturbing their neighbour and, if the number of such remandees increase any further, they will have to take turns to sleep. I have seen pigs in Enga with more room to move. In that cell there was only 1 toilet and it did not work in that it had no running water. The smell was, to be polite, unacceptable. Pity those who have to sleep close to that toilet.

30	I was so stunned by what I saw in this cell that I took pictures on a digital camera and they are annexures to this report, as follows:

Annexure 1	89 remandees sitting in a cell built for 40	
Annexure 2	The same group, each with one hand raised	
Annexure 3	The position in which those 89 people sleep	
Annexure 4	The single toilet which those 89 people share	

31	In the cell for those held on remand, awaiting trial in the National Court, there were 70 in a cell designed to house 30. In this cell, I noticed that the plates, cups and eating utensils were in poor condition and insufficient in number, which obviously means they have to be shared. 

32	The majority of the people in both those cells were Engans. When I asked about the shortage of blankets, I was advised that no blankets have been issued for a long time and that there is a shortage of clothes for prisoners. The showers do not work: a tank with a pipe running from it provides water for showers. That water is untreated water from a nearby creek. I can only hope that creek does not dry up. While I was standing just outside that cell, I noticed one remandee washing himself and his drinking cup in a pool of muddy water which was about ½ metre in diameter and about 10 cm deep. At the risk of stating the obvious, he had nothing to dry himself with.

33	It must be borne in mind that the conditions at Baisu outlined above relate to remandees: people presumed innocent until proven guilty and who should not be punished because they have not been convicted and may not be convicted.

34	Only one of the cells has lights which work. Fortunately, the perimeter security lights still work.

35	Turning to the manner in which juveniles were housed, there were 54 in 20 berths. Of those, 31 were from Enga, mostly illegal miners from Porgera. In this area there were 6 showers that did not work, a sink with 3 taps that did not work and 3 toilets with no running water. The lights did not work. Convicted persons and remandees were housed together, contrary to section 37(18) of the Constitution.

36	The road from the highway to the prison at Baisu is riddled with potholes. 

37	Since the number of CS officers has not expanded with the number of prisoners, the risk of escape has increased. When remandees were taken to the sittings of the National Court in Porgera in December last year, the number of CS officers required to accompany those remandees was such as to give an unacceptably high ratio of prisoners to prison officers and escapes occurred. I note that the journey from Baisu to Porgera takes 8 hours each way.

38	I also inspected the area in which the female prisoners were held. That area was better kept: cleaner and with plants growing in gardens. However, there was still overcrowding, the remandees were kept with those who had been convicted, contrary to section 37(18) of the Constitution. Indeed, remandees were housed with high-risk prisoners.

39	Of the 54 women, 10 (ie 18%) were Engans. Ten of the women in Baisu gave birth last year. They were taken to the hospital to deliver then brought back. The trip along the corrugated road on the way to that hospital for those women about to give birth can only be imagined. Some of those children live in prison with their mother. Clothes for those children are provided by relatives who, if they live in Wabag are a three hour trip away and six hours away if they live in Porgera. There is no Medical Officer at Baisu. 

40	Again, there is no running water which means that the taps don't work. The fact that the sink underneath those taps is rusted through is of no consequence because the taps don't work. For this group of 54 women there were 3 showers, 3 toilets and no privacy. There is an additional toilet and shower outside but in view of an area housing male prisoners. Obviously, the women also have no choice but to use untreated water from the local creek. A garbage bin filled with putrid water is used to flush the toilets. The mosquito nets have holes big enough to fit a rat through. I did not see any rats during my visit but they may because they are free to move around and find somewhere better to live.

41	The prison officers make notes on any piece of paper they can find, including cardboard packing. There is no e-mail facility and the fax machine is not working.

42	When driving away from Baisu I noted that the conditions in the houses in which the CS officers lived were sub-standard. However, to their great credit, not one CS officer made any complaint in relation to his or her living conditions. 

43	None of what appears above in relation to my visit to Baisu should be read as a criticism of the CS officers at Baisu or their Commanding Officer. Indeed, I was very favourably impressed with the standard of conduct of the CS officers I met. By way of example, the lady in charge of the female prisoners had obviously established a good rapport with each of them and was able to provide good answers to each of my searching inquiries. Her uniform and personal presentation were faultless. She was obviously both guarding the women prisoners and caring for them. Reports of improper conduct on the part of some CS officers should not be allowed to overshadow the fact that CS officers like her at Baisu are doing a difficult job under trying conditions in a commendable manner.

44	It should not be overlooked that the extra cost of transporting Engan prisoners to Wabag results in additional costs such as fuel, accommodation and travelling allowances for CS officers and that obviously reduces the amount of money available for other needs. 

Cause and effect

45	It is also worth noting the link between what I observed and escapes from prisons.

46	By way of illustration, if I walk around in Enga at night without wearing some warm clothes, I will get sick. My sickness is the effect. Failing to wear warm clothes is the cause. If I get sick and have to go to the doctor or the hospital then it takes time and money. I will keep suffering the effect (getting sick) until I address the cause (by starting to wear warm clothes at night). It is quicker and cheaper and safer for me to put on warm clothes at night that get medical attention every time I get sick.

47	In like manner, escapes from prisons in Papua New Guinea are an effect and the effect will keep occurring until the cause is dealt with. Overcrowding and inadequate funding are two of the causes. It may therefore be expected that remedying the breaches of the basic rights of Engan prisoners will have the beneficial effect of reducing the number of escapes.

48	The most recent escape attempt involved placing items over a fence to prevent observation of an attempt to breach the perimeter fence. That resulted in a confinement order so as to prevent escapes which only made the cells overcrowded for longer periods. At the risk of stating the obvious, confinement in overcrowded conditions for longer periods increases the likelihood of behavioural incidents in those overcrowded conditions.

49	My reason for inspecting the CS facility at Baisu was to consider the position in relation to prisoners held there because of the lack of suitable prison facilities in Enga Province. What I found during my visit were clear breaches of the basic rights provisions of the Constitution in relation to the conditions for all the prisoners at Baisu. It is therefore important to record that while addressing the lack of suitable prison facilities in Enga Province will improve the conditions at Baisu, there are others matters at Baisu which need attention. 

The only suitable cells in Enga Province

50	There are two cells at the National Court in Wabag to which remandees are brought from Baisu when their trial is to be heard. Both those cells are of comparatively recent construction, their walls are free of graffiti, the concrete slab floor has been covered with lino and has been recently swept clean. There is a mat for the remandees to sleep on and, due to the cooler climate in Wabag, a blanket in case the remandee does not bring his/her blanket or does not have one. There is also a towel available.

51	There is a toilet in each cell which is clean, flushes when the button is pushed and is not clogged. There is toilet paper. There is a sink with a tap that works and a cake of soap. Those cells, which is usually only houses one remandee, are about 4 metres deep and 4 metres wide. I have personally inspected those cells and will continue to make regular inspections of that area while I am the resident National Court judge based in Wabag. Meals and welfare of the remandees are the responsibility of the CS officer(s) who bring the remandee on the 4 hour journey from Baisu. 

52	Those two cells are secure within the National Court building which has 24 hour security with a view to minimising both the risk of escape and the risk of the remandee either being harmed or harming himself/herself. On the basis of my recent inspections, these are the only cells in Enga Province which comply with the human rights provisions of the Constitution.

53	If there was a prison in Enga Province at Mukurumanda it would be a simple matter for the resident judge, along with the prosecutor and lawyer from the Public Solicitor's officer to go to that prison at the beginning of each month and go through the list of those who are awaiting trial to see which matters are ready for trial, which matters will be a plea of guilty and allocate dates for the hearings of those matters during that month (a procedure commonly term a call-over). However, to my horror, since Engan remandees are being held at Baisu, the 26 men and 2 women awaiting trial were placed in those cells on Sunday night, ready for Monday's call-over. Clearly, 26 men in a 16 square metre cell is in breach of the basic rights provisions of the Constitution: sections 36, 37(1) and 37(17). I have made arrangements to ensure that does not happen again.

54	Until there are prison facilities for remandees in Enga Province, it will be necessary to conduct that monthly call-over during what would normally be the lunch adjournment so that the remandees can leave Baisu after sunrise and be back by sunset. 

A table with only three legs

55	The term Law and Justice Sector has become common in Papua New Guinea. Its use is a reflection of the fact that the stated objective of "a just, safe and secure society for all" requires that a number of agencies each perform their required tasks. Put another way, the work of a National Court judge may be likened to working at a four-legged table: (1) police officers who will investigate, arrest and charge suspected offenders, (2) prosecutors who will present the resulting evidence in support of such charges, (3) defence lawyers who will work to ensure that people are not convicted when they are falsely accused or when there is insufficient evidence to support a conviction, and (4) appropriate prison facilities to cater for both those who are waiting to have their case heard and those who have been found guilty of the offence with which they were charged. As a result of the deficiencies set out in these reasons for decision, the fourth of those legs, namely appropriate prison facilities, is missing in Enga Province and the National Court in Wabag is being required to work at a table which has only three legs. For the law and order issues in Enga Province to be addressed it is vital that a fourth leg be added to the table.

Decision 

56	When I first decided to check the detention facilities in Enga Province, I had in mind conducting inspections then, if there appeared there might be breaches of the human rights provisions, to provide an opportunity for written and oral submissions as to whether there were in fact breaches and, if I decided that there were breaches, what orders should be made under section 57 of the Constitution.

57	However, in view of what I have seen in the past few days, providing an opportunity for submissions on whether the lack of detention facilities in Enga Province and the treatment of prisoners from Enga Province breaches the basic rights provisions of the Constitution would be like providing an opportunity for submissions on whether the sun rose this morning.

58	I find that the basic rights provisions of the Constitution have been breached in the following respects:

(1)	Housing any convicted person or unconvicted person in the existing Police cells in Wabag breaches the basic rights of those persons, namely sections 36, 37(1) and 37(17) of the Constitution.

(2)	Housing unconvicted persons in the remand cells at Baisu Correctional Facility breaches the basic rights of those persons, namely sections 36, 37(1), 37(17), 37(18) and 37(20) of the Constitution.

(3)	The absence of a Correctional Facility in Enga Province for the prisoners from Enga Province breaches the basic rights of those persons, namely sections 36, 37(1) and 37(17) of the Constitution.

59	I find that those breaches are continuing.

60	Accordingly, I have decided to fast track these proceedings by making interim orders and providing an opportunity to be heard to anyone interested in the subject matter of these proceedings before I consider what further orders should be made.

The past, the present and the future

61	Since the issues raised in this report could lead to conduct by politicians which might be described as naming, blaming shaming, I would stress that these proceedings are not directed to what has happened in the past. They arise because the present situation is that there are breaches of the basic rights provisions of the Constitution which will continue until something is done to remedy those breaches. As the practical effect of section 57 of the Constitution is to render me one of the guardians of the basic rights provisions of the Constitution, my sole concern is what will be done in the future to remedy these breaches of the basic rights provisions of the Constitution.

A potential solution 

62	An interim remand facility at Mukurumanda, pending completion of permanent facilities there, would result in a number of benefits which would include:

(1)	Reducing the time taken to transport remandees to court from 4 hours each way to ½ an hour each way.

(2)	Making it easier for defence lawyers to speak with their clients.

(3)	Separating those on remand from those who have been convicted, thus removing the breaches of section 37(18) of the Constitution.

(4)	Overcome the overcrowding in the remand cells at Baisu.

63	During my inspection of the Mukurumanda site I noticed parcel of land adjoining the Mukurumanda prison site. I was told that it is owned by a local church, for which Correctional Services currently pays K25,000 a year to rent. It appears that site was previously used to house up to 80 prisoners. However, although the rent is still being paid, the site is not being used. While time has not permitted me to investigate the potential use of that site, it seems to me that the facilities on that site, seemingly left from when it was used in the past, might be able to be renovated so as to provide a temporary or interim facility for remandees who are in prison, awaiting their trial. That should be able to provide accommodation for up to 80 prisoners and there are already sufficient CS officers to staff such a facility. Alternatively, the facilities on that site might be moved onto the Mukurumanda prison site in order that they might be used pending the completion of a permanent facility.

64	While I was conducting hearings of the National Court in Porgera last December, I made a comment about the lack of suitable prison facilities in Enga Province. When that comment was misreported in a newspaper, the Governor of Enga Province, Governor Ipatas, was reported in that newspaper the following day as having said that the Enga provincial administration has given Correctional Services K5 million in February 2009 for the construction of prison cells at Mukurumanda prison. That raises two questions in my mind: (1) what has happened to that money, and (2) can some of it be released for the speedy provision of an interim remand facility at Mukurumanda which may well cost less than K100,000 to establish within as little as three months.

65	Of course, that would not be a permanent solution but it would provide a much-needed facility pending what I hope will be the prompt completion of proper prison facilities in Enga Province at Mukurumanda.

Baisu prison

66	I visited Baisu prison in Western Highlands Province with a view to ascertaining the conditions under which prisoners from Enga Province were held. It was not my intention to do the work of the magistrates and judges based in Mount Hagen. However, in the course of my visit to Baisu I found that breaches of the basic rights provisions of the Constitution were being breached and that is something I cannot overlook given the oath I took when I became a judge in Papua New Guinea to uphold its Constitution and laws.

67	In those circumstances, what I propose to do is to confine my attention to the conditions of prisoners from Enga Province held in the prison at Baisu, provide a copy of these Reasons for Decision to the judges resident in Mount Hagen and hope that exposing the conditions at Baisu will be sufficient to prompt corrective action. That will not involve overlooking the conditions in Baisu since monthly visits to monitor the conditions under which Engan prisoners are housed at Baisu will provide me with an opportunity to see what changes are made and how quickly.

68	To me, as a judge, it would be inconsistent to send a person who breaks the law to prison and then ignore the fact that he is being held in prison in a manner which breaks the law.

Interim orders

69	The need for an interim remand facility at Mukurumanda is extremely urgent. I have decided to make orders designed to cause that need to be addressed.

70	The need for new Police cells in Wabag is also extremely urgent. I have decided to make orders designed to keep me informed of the progress made in relation to this need.

71	The need to build and equip a proper correctional institution at Mukurumanda for Enga Province is urgent. I have decided to make orders designed to cause that need to be addressed.

72	I have decided to do what Cory J did in Ana Komidese and others v Commissioner of Correctional Services [1985] PNGLR 212 and what Cannings J did in The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumbi and Andrew Amid [2005] PGNC 139; N2819 (23 March 2005), namely make recommendations aimed at protecting and enforcing constitutional rights in relation to these three matters.

73	I will also make orders to provide an opportunity for any interested person to make written submissions to me in relation to those three matters.

74	The orders I make today are interim orders, reflecting that the court is providing an opportunity for action and an opportunity for submissions before making any further orders.

75	Accordingly, I make the following interim orders pursuant to sectioin 57 of the Constitution:

Need 1 – New Police cells in Wabag

1	I make a declaration that the condition of the Police cells in Wabag is such that housing any convicted person or unconvicted person in those cells breaches the basic rights of those persons, namely sections 36, 37(1) and 37(17) of the Constitution.

2	In view of the existing facilities having been condemned by the Department of Health, I recommend that a written progress report in relation to the provision of replacement Police cell facilities in Wabag be provided by the Provincial Police Commander for Enga Province to the National Court in Wabag on or before Friday 19 February 2010.

Need 2 - An interim remand facility at Mukurumanda

3	I make a declaration that the condition of the remand cells in the Correctional Facility at Baisu is such that housing unconvicted persons in those cells breaches the basic rights of those persons, namely sections 36, 37(1), 37(17), 37(18) and 37(20) of the Constitution.

4	I recommend that within two weeks from today (ie on or before Tuesday 16 February 2010) the Acting Commissioner for Correctional Services and the Governor of Enga Province engage in meaningful discussions in relation to the provision of an interim facility for remandees at Mukurumanda (as outlined in paragraph 63 above or otherwise) and provide to the National Court in Wabag on or before Friday 19 February 2010 either separate written progress reports or, preferably, a joint written progress report of those discussions.

Need 3 – Build and equip a proper correctional institution at Mukurumanda

5	I make a declaration that the condition of the absence of a Correctional Facility in Enga Province for the prisoners from Enga Province breaches the basic rights of those persons, namely sections 36, 37(1) and 37(17) of the Constitution.

6	I recommend that within two months from today (ie on or before Saturday 2 April 2010) the Acting Commissioner for Correctional Services and the Governor of Enga Province engage in meaningful discussions in relation to the provision of a proper correctional facility at Mukurumanda and provide to the National Court in Wabag on or before Friday 8 April 2010 either separate written progress reports or, preferably, a joint written progress report of those discussions.

Submissions

7	I direct that any written submission in relation to Need 1, Need 2 and/or Need 3 (the Needs) be lodged with the National Court in Wabag by 4pm on Friday 19 February 2010 so as to provide two weeks for the preparation and lodgment of any such submissions.

Notice

8	I order that a copy of these reasons for decision is to be faxed by 12 noon today to:

(a)	the Acting Commissioner for Correctional Services, 

(b)	the Governor of Enga Province; and

(c)	the Provincial Police Commander for Enga Province.