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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HRA NO 83 OF 2013
IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT
OF HUMAN RIGHTS PURSUANT TO
SECTION 57 OF THE CONSTITUTION
BY FRANCIS KAWAI KAUKE
Applicant
AND
COMMANDING OFFICER,
BEON CORRECTIONAL INSTITUTION
First Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent
Madang: Cannings J
2013: 5 December,
2014: 13 February, 24 April, 25 June
HUMAN RIGHTS – food and diet provided to detainees in correctional institution – application by detainee for enforcement of human rights.
CONSTITUTIONAL LAW – Basic Rights – Constitution, Section 57: enforcement of guaranteed rights and freedoms – Constitution, Section 37(1): right to the full protection of the law – Constitution, Section 37(17): persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
A prisoner brought an application for enforcement of his human rights, which he alleged were being breached by the Commanding Officer and the State who were not providing him with food that was adequate to maintain his health and well being. He claimed that as a prisoner he had a right to be protected against inhuman treatment and to be treated with humanity and respect for the inherent dignity of the human person and that the laws regulating correctional institutions gave effect to those rights by prescribing minimum nutritional requirements for food provided to detainees. He alleged that those rights were breached by his being provided with an unbalanced and non-nutritious diet: he and other detainees were with occasional exceptions provided with the same type of food every day and were rarely provided fruit, vegetables or dairy products as required by law. The respondents denied the allegations and asserted that no breach of human rights had been established.
Held:
(1) A detainee has fundamental human rights, which are conferred by the Constitution and must be adhered to and administered by all authorities in the criminal justice system.
(2) Those rights include the rights: not to be submitted to torture or treatment or punishment that is cruel or otherwise inhuman (s 36(1)), to the full protection of the law (s 37(1)), to be treated with humanity and with respect for the inherent dignity of the human person (s 37(17)) and to be protected against harsh or oppressive or otherwise proscribed acts (s 41(1)).
(3) The Correctional Service Act 1995 and the Correctional Service Regulation prescribe food and dietary requirements for detainees, which are minimum requirements that must be complied with in order to adhere to and administer the human rights of detainees.
(4) A detainee must be provided with food that is adequate to maintain his or her health and well being (Act, s 123(1)) and that satisfies minimal nutritional standards, in that food must be provided in prescribed amounts and proportions from five food groups: (a) protein, (b) staple, (c) fruit, (d) vegetables and (e) dairy (Regulation, s 70) in accordance with a monthly schedule of detainee meals authorised by the Commanding Officer of the correctional institution (Regulation, ss 69, 71).
(5) The allegations of the applicant are sustained by the evidence: the detainees are with occasional exceptions provided the same meals each day, which consist of food from groups (a) and (b), with no or negligible quantities from groups (c), (d) and (e). Further it appears that the Commanding Officer does not prepare a schedule of monthly detainee meals as required by the Regulation.
(6) The applicant proved that breaches of the human rights of himself and other detainees had been occurring in a systematic and unchecked manner, in that the failure of the Commanding Officer and the Correctional Service to comply with the minimal nutritional requirements of the Act and the Regulation meant that detainees were denied the full protection of the law, contrary to Section 37(1) of the Constitution.
(7) The breach of those requirements was not, however, so severe or committed in such bad faith as to conclude that the applicant was being treated inhumanely (s 36(1)), without humanity or respect for the inherent dignity of the human person (s 37(1)) or harshly or oppressively (s 41(1)).
(8) It was appropriate and necessary for the Court to make declarations and orders under Sections 57(1) and (3) of the Constitution to protect and enforce the human rights of the applicant and other detainees.
(9) Ordered: the Commanding Officer shall within 14 days prepare and file in these proceedings, for approval by the Court, a schedule of detainee meals for the month of August 2014 that is compliant with the food and nutritional requirements of the Act and the Regulation, and shall provide food to detainees in accordance with the schedule.
(10) Remarks: the Commanding Officer or the Commissioner of the Correctional Service is at liberty to apply to the Court for orders under Sections 57(1) and (3) and 225 of the Constitution that the National Government provide additional arrangements, staff and facilities, including funds, to facilitate compliance with the orders of the Court.
Cases cited
The following cases are cited in the judgment:
Electoral Commissioner v Whiskey Maniho [1987] PNGLR 449
Paias Wingti v Kala Rawali (2010) N3959
PNG Power Ltd v Ian Augerea (2013) SC1245
Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007
Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82
Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435
Special Reference by Morobe Provincial Executive (2010) SC1089
APPLICATION
This was an application for enforcement of human rights.
Counsel
S Ao & A Meten, for the applicant
C Waienge & S Phannaphen, for the respondents
25th June, 2014
1. CANNINGS J: Francis Kawai Kauke, a prisoner at Beon Jail, applies for enforcement of his human rights, which he alleges are being breached by the Jail Commander and the State who are not providing him with food that is adequate to maintain his health and well being. He says that he has discussed the matter with many other prisoners at the jail who share his concerns. They are worried about their poor diet and the effect this is having on their health. The applicant says that though his application is only in his name, he wants it dealt with as an application on behalf of all prisoners and other detainees at the jail.
2. He claims that as a prisoner he has a right to be protected against inhuman treatment and to be treated with humanity and respect for the inherent dignity of the human person and that the laws regulating correctional institutions gave effect to these rights by prescribing minimum nutritional requirements for food provided to detainees. He claims that these rights are breached by the detainees being provided with an unbalanced and non-nutritious diet: they are, with occasional exceptions, provided with the same type of food every day and are rarely provided fruit, vegetables or dairy products as required by law.
3. The Jail Commander and the State deny these allegations and assert that no breach of human rights has been established.
4. The following issues arise:
1 WHAT ARE THE HUMAN RIGHTS OF DETAINEES, IN REGARD TO FOOD AND DIET?
5. Human rights in Papua New Guinea are conferred by Division III.3 of the Constitution, consisting of Sections 32 to 58. People who are detained in custody do not lose their human rights. In fact they gain some, as some rights have extra practical significance once a person is deprived of their liberty. Four need to be highlighted:
6. 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.
7. 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.
8. 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.
9. Section 41 (proscribed acts) states:
(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—
(a) is harsh or oppressive; or
(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.
10. None of those constitutional provisions refers specifically to the food and diet of detainees. However, Mr Ao, for the applicant, points out that the Correctional Service Act and the Correctional Service Regulation contain a number of provisions that do refer to such matters, which are expressed in mandatory terms.
11. Section 123 (food) of the Act is in Part X (conditions of detention). It states:
(1) A detainee has a right to be provided with food that is adequate to maintain the health and well being of the detainee.
(2) Where practicable, a detainee shall be provided with special dietary food where necessary on account of the health or religious beliefs of the detainee.
(3) The Regulations and Standing Orders may make provision for the scale of daily rations and for the purchase, preparation, distribution and disposal of foods.
(4) Where the management of a correctional institution is not jeopardized, the Commanding Officer may authorize the provision of food to a detainee at the detainee's own cost.
12. Sections 69 to 79 of the Regulation (contained in Division IV.2 (conditions of detention)) state:
69. Schedule of meals.
A Commanding Officer shall ensure a schedule of detainee meals for each month in advance is prepared, and authorized by him.
70. Nutritional content of meals.
The schedule of detainee meals shall ensure that the food provided to each detainee residing in a correctional institution satisfies minimum nutritional standards by providing food from each of the following food groups in the amounts and proportions provided in Standing Orders:—
(a) protein;
(b) staple;
(c) fruit;
(d) vegetables;
(e) dairy.
71. Requirements to be taken into account.
A schedule of meals shall take the following requirements into account:—
(a) nutritional needs;
(b) usual daily activity of the detainees;
(c) budget;
(d) seasonal variations;
(e) facilities available for preparation and storage of food;
(f) availability of local produce.
72. Production of fresh produce used for detainee meals.
Where possible, fresh produce shall be produced at the correctional institution for consumption by detainees.
73. Use of local produce.
The use of local produce is to be given preference to imported products in the preparation of a schedule of meals.
74. Substitutes for special diets.
Where appropriate, the schedule of meals shall provide substitute food stuffs for special diets.
75. Supervision of food preparation.
Food shall be prepared under the supervision of a member who is appointed by the Commanding Officer to ensure compliance with health standards, the efficient use of provisions, and compliance with the schedule of meals.
76. Meals for detainees who are absent.
A Commanding Officer shall ensure that every detainee who is absent during a meal time from the correctional institution is provided a substitute meal.
77. Fresh drinking water to be available.
Fresh drinking water is to be available to every detainee at all times.
78. Food for children in the correctional institution.
A Commanding Officer shall ensure that where a child is permitted to reside in the correctional institution that child is provided with food in accordance with this Regulation and the Standing Orders.
79. Exercise.
(1) A detainee has a right to be in the open air for at least one hour each day.
(2) A detainee has a right to exercise necessary for the maintenance of health.
13. I uphold the submission of Mr Ao that the provisions of the Act and the Regulation relating to the food and diet of detainees impose obligations on the Commissioner of the Correctional Service and the Commanding Officers of correctional institutions, and create rights, which form part of the human rights of all detainees.
14. To summarise, a detainee has fundamental human rights that are conferred by the Constitution and must be adhered to and administered by all authorities in the criminal justice system, in particular by the Commissioner of the Correctional Service and the Commanding Officers of correctional institutions. These rights include the rights:
15. The Correctional Service Act 1995 and the Correctional Service Regulation prescribe food and dietary requirements for detainees, which are minimum requirements that must be complied with in order to adhere to and administer the human rights of detainees. In particular a detainee has the right to be provided with food, which:
(a) protein,
(b) staple,
(c) fruit,
(d) vegetables, and
(e) dairy (Regulation, s 70),
in accordance with a monthly schedule of detainee meals authorised by the Commanding Officer of the correctional institution (Regulation, ss 69, 71).
2 WHAT FOOD IS PROVIDED TO DETAINEES AT BEON JAIL?
Applicants' evidence
16. The applicant has given evidence that detainees are provided with the same food, day after day. He says that they are provided three meals each day:
17. In cross-examination he conceded that on special occasions such as Easter, Independence and Christmas, the food is better and more varied. Also, if detainees are permitted to be visited by relatives they can get better food. However he said that there have been lengthy periods of suspension of visitations in recent times.
Respondents' evidence
18. The Commanding Officer, Superintendent Tita Wada, refutes the allegations of poor food and diet. He stated that monthly rations are supplied by service providers in accordance with contracts which are signed by the Supply and Tenders Board and the supplier. He has a very limited budget from which he can make supplementary purchases. He would like to be able to produce fresh produce at the jail but there are an insufficient number of low risk prisoners whose labour could be utilised. He has taken a number of steps in recent times to improve detainees' meals, including provision of fresh green vegetables, chicken, dry coconut and noodles. He doubts the applicant's claim that poor food and diet is responsible for illnesses of detainees.
Findings
19. I accept Supt Wada's evidence that in recent times he has made a genuine attempt to improve the food and diet of detainees. However, I find that only a marginal improvement has been made. These proceedings were commenced in November 2013 and I estimate that in the five-month period since then until the last hearing in April 2014 male detainees were six days each week provided with the standard rations as described by the applicant.
20. This means that on most days detainees are provided the same meals, which consist of food from food groups (a) (protein) and (b) (staple), with no or negligible quantities from groups (c) (fruit), (d) (vegetables) and (e) (dairy). I conclude that detainees are being provided an unbalanced and non-nutritious diet. Further it appears that the Commanding Officer does not prepare a schedule of monthly detainee meals as required by Section 69 of the Regulation.
21. I am satisfied that the applicant has proven that breaches of human rights of detainees have been occurring in a systematic and unchecked manner. The failure of the Commanding Officer and the State to provide food that is compliant with the minimum nutritional requirements of the Correctional Service Act and the Correctional Service Regulation means that detainees have been and are being denied the full protection of the law, contrary to Section 37(1) of the Constitution.
22. It cannot be said, however, that the breach of the nutritional requirements has been so severe as to conclude that the detainees are being treated inhumanely (s 36(1)) or without humanity or respect for the inherent dignity of the human person (s 37(1)) or harshly or oppressively (s 41(1)). Nor can it be concluded that the breach of human rights has occurred deliberately or because of bad faith on the part of the Commanding Officer.
4 WHAT DECLARATIONS AND ORDERS SHOULD THE COURT MAKE?
23. As the applicant has proven that human rights breaches are occurring it is necessary for the Court to consider making declarations and orders aimed at remedying the situation. The National Court has wide powers to protect and enforce human rights under Sections 57(1) and (3) of the 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).
24. I consider that it is necessary and appropriate to declare that the human rights of detainees have been and are being breached due to the ongoing failure to provide them food that complies with the minimal nutritional requirements of the Correctional Service Act and the Correctional Service Regulation. The detainees have been and are being denied the full protection of the law, contrary to Section 37(1) of the Constitution.
25. Remedying this serious breach of human rights is not a complex task. It is a simple matter of following the law. The Commanding Officer must prepare a monthly schedule of detainee meals in accordance with Section 69 of the Regulation. The schedule must be prepared in a way that satisfies minimal nutritional standards. Food must be provided from the five food groups prescribed by Section 70 of the Regulation "in the amounts and proportions provided in the Standing Orders".
26. Standing Orders are issued by the Commissioner of the Correctional Service under Section 168 of the Act. The court has not been informed whether there are any that are relevant to this case. The Commanding Officer will need to enquire into that when preparing the monthly schedule of detainee meals. I will allow him 14 days to prepare the first monthly schedule of detainee meals, to be presented to the Court for its approval. He will then have to implement the schedule.
FUNDING
27. I am aware of the likelihood that by making these orders the Court will be requiring the Commanding Officer and the Correctional Service to find and apply funds that are presently not available. If funding is a problem the court must be notified immediately so that further orders to appropriate authorities, eg the Department of Finance, can be made. This can be done under Section 225 (provision of facilities etc) of the Constitution which states:
Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders.
28. It should be noted that the term "constitutional institutions" in Section 225 is not confined to offices and institutions that are established directly by the Constitution. Under Section 221 (definitions):
"constitutional institution" means any office or institution established by or provided for by this Constitution, other than an office of Head of State or of a Minister, or the National Executive Council.
29. The Correctional Service is established by the Correctional Service Act as a State Service as permitted by Section 188(2) of the Constitution and is declared to be a disciplined force as provided in Section 207 of the Constitution. It is an institution provided for by the Constitution and is therefore a constitutional institution for the purpose of Section 225. The nature and extent of the power of the National Court and the Supreme Court to make orders under Section 225 have been addressed by the Supreme Court in a number of cases including Electoral Commissioner v Whiskey Maniho [1987] PNGLR 449, Special Reference by Morobe Provincial Executive (2010) SC1089 and PNG Power Ltd v Ian Augerea (2013) SC1245. National Court cases on the subject include Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82, Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435, Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007 and Paias Wingti v Kala Rawali (2010) N3959.
DECLARATIONS AND ORDERS
30. The following declarations and orders are made under Section 57(3) of the Constitution, having been considered by the Court to be necessary and appropriate for the purpose of Section 57 of the Constitution:
(1) The human rights of the applicant and other detainees at Beon Correctional Institution have been and are being breached due to the ongoing failure to provide them food that complies with the minimum nutritional requirements of the Correctional Service Act and the Correctional Service Regulation, resulting in them being denied the full protection of the law, contrary to Section 37(1) of the Constitution; and accordingly the following orders are made for the purpose of protecting and enforcing those rights.
(2) The Commanding Officer of Beon Correctional institution shall by 8 July 2014 prepare and file in these proceedings, for approval by the Court, a schedule of detainee meals for the month of August 2014 that is compliant with the food and nutritional requirements of the Correctional Service Act and the Correctional Service Regulation, and shall provide thereafter food to detainees in accordance with the schedule.
(3) There shall be a hearing in these proceedings at Madang on 10 July 2014 at 9.00 am at which time the Court will consider the question of approval of the schedule of detainee meals and any other matter concerning these proceedings.
Orders accordingly.
_________________________________________________________
Public Solicitor: Lawyer for the Applicant
C Waienge: Lawyer for the Respondents
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