N9648

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 25 OF 2020

CORPORAL 4742 – REGINA RUMINTS, CORRECTIONAL SERVICE OFFICER ATTACHED TO BAISU CIS
Plaintiff

V

HONOURABLE PAIAS WINGTI – GOVERNOR FOR WESTERN HIGHLANDS PROVINCE
First Defendant

JOSEPH NENG – PROVINCIAL ADMINISTRATOR OF WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Defendant

HONOURABLE WILLIAM DUMA – MEMBER FOR MT. HAGEN OPEN ELECTORATE
Third Defendant

HONOURABLE PETER IPATAS – GOVERNOR FOR ENGA PROVINCE
Fourth Defendant

HONOURABLE MICHAEL NALI – MINISTER FOR WORKS & IMPLEMENTATION
Fifth Defendant

MT HAGEN PROVINCIAL WORKS MANAGER
Sixth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Narokobi J
2022: 13th May

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms) – power of National Court to protect and enforce guaranteed rights and freedoms – Separation of powers, s 99 of the Constitution, subject to the Constitution, in principle and non-justiciable - Power of the National Court to make appropriate orders under ss 22, 57(3) and 166 of the Constitution.

The Plaintiff, Regina Rumints, is a correctional service officer, holding the rank of Corporal. She is attached to Baisu Correctional Services Institution (CS). She has been at Baisu CS for the last 10 years. Baisu CS houses detainees from Western Highlands Province, Enga Province and Jiwaka Province. The majority of the detainees are from Enga. The road from Baisu goal to the National Court in Mt Hagen is in a bad state. On one occasion on 22 October 2020, after a court sitting and they were transporting the detainees back to Baisu, there was a section of the road that was particularly bad, and they slowed down. At that moment they were attacked by a man throwing a large stone at them, which broke the windshield, but fortunately they were spared. Their cars have been damaged from the poor road conditions. They have always missed out in the budget allocations from the province. She has filed proceedings under s 57 of the Constitution to enforce her human rights.

Held:

(1)	Section 18(1) of the Constitution confers original jurisdiction on the Supreme Court the powers to interpret and apply the Constitution, subject to the proviso that if the Constitution enables another Court or tribunal to exercise this jurisdiction than it is permissible to do so. Provisions of the Constitution relating to the enforcement and protection of human rights can be interpreted and applied by the National Court. This is provided for by ss 22 and 57(1) of the Constitution.  

(2)	Under s 99 of the Constitution, the principle of separation of powers is subject to the Constitution. This means it is subject to ss 22, 57 and 166 of the Constitution.

(3)	Section 22 of the Constitution entitles the National Court to consider case authorities from other democratic societies to develop methods to protect and enforce human rights.

(4)	One of the most basic foundations to live in freedom is the availability of adequate roads. If there are no roads or poor roads, other rights will be impaired.

(5)	Freedoms human beings enjoy in Papua New Guinea are guaranteed by s 32 of the Constitution and are entitled to be protected by law under s 37(1) of the Constitution, right to full protection of the law. To the extent that freedoms are not being protected, they are being infringed.

(6)	The rights of the users of the road connecting Baisu Correctional Institute and the Highlands Highway of Western Highlands Province to s 32(2), 37(1), 41(1) of the Constitution have been and continues to be violated by the very bad, and deteriorating state of the road.

(7)	Sections 22 and 57(3) of the Constitution empowers the National Court to order the executive and legislative branch of government to provide adequate funding for basic services of citizens from their available resources within a reasonable period, where absence of these services will infringe rights and freedoms of citizens in the Constitution.  (Republic of South Africa. & Ors v Grootboom & Ors 2000 (11) BCLR 1169 referred to)

(8)	All Defendants named in this proceeding are ordered to immediately allocate sufficient funding to fix the road leading to Baisu Correctional Institute.

(9)	The Seventh Defendant is ordered to provide a new vehicle to the management of Baisu Correctional institute from their respective Law and Order Budgets, or any other available funding from any other basket they may have, to assist the management of Baisu Correctional Service to effectively carry out their operations.

(10)	If for any reason, the Defendants are not able to provide funding to fix the road and provide vehicle to the Baisu Correctional Service, a report must be made to the court as soon as practicable, or at least, not more than three months from the date of this order as to when funding will be available to satisfy the orders of the court.

Cases Cited:
Papua New Guinean Cases

Re: Effect of Dilapidated Road Conditions on Enforcement of Human Rights in Madang Town (2021) N8722

Overseas Cases

Republic of South Africa. & Ors v Grootboom & Ors 2000 (11) BCLR 1169

Statutes Cited

Constitution 

Counsel

T Ilaisa, for the Plaintiff
A Tukun, for the Fourth Defendant
A Kajoka, for the Seventh Defendant

JUDGMENT

13th May, 2022

1.	NAROKOBI J: The Plaintiff, Regina Rumints, is a correctional service officer, holding the rank of Corporal. She is attached to Baisu Correctional Services. She has filed proceedings under s 57 of the Constitution seeking to enforce human rights. The claim is by way of an originating summons, seeking the following reliefs:

1.	Pursuant to Section 22, Section 57(1)(3) and Section 166(1)(2) of the Constitution a declaration be made that the road condition connecting Baisu Correctional Institute and the Highlands Highway of Western Highlands Province is in a very bad, deteriorating state and in dire need of immediate maintenance.

2.	Pursuant to Section 22, Section 57(1)(3) and Section 166(1)(2) of the Constitution a declaration be made that the Baisu Correctional Institute keeps remandees and prisoners from Enga Province, Southern Highlands Province, Hela Province and a few from Jiwaka Province, however a majority are from Enga Province.

3.	Pursuant to Section 22, Section 57(1)(3) and Section 166(1)(2) of the Constitution all Defendants named in this proceeding be ordered to immediately allocate sufficient funding to fix the road leading to Baisu Correctional Institute.

4.	Pursuant to Section 22, Section 57(1)(3) and Section 166(1)(2) of the Constitution all defendants named in these proceedings be ordered to continuously allocate funding through their respective budgets every year thereafter commencing 2021 to maintain the road to Baisu Correctional Institute.

5.	Pursuant to Section 22, Section 57(1)(3) and Section 166(1)(2) of the Constitution all defendants named in these proceedings, especially the First, Second, Third and Fourth Defendants be ordered to provide  some new vehicles to the management of Baisu Correctional institute from their respective Law and Order Budgets, or any other available funding from any other basket they may have, to assist the management of Baisu Correctional Service to effectively carry out their operations.

6.	Any other orders the court deems fit, necessary and appropriate.

2.	The Plaintiff relies on the following affidavits to support its case, which I summarise in the table below.

Exhibit No	Affidavit 	Evidence 	
P1	Regina Rumints, filed 17 November 2020	She is a correctional service officer attached to the Baisu Correctional Service. She has been so for the last 10 years. Baisu CS houses detainees from Western Highlands Province, Enga Province and Jiwaka Province. The majority of the detainees are from Enga. The road from Baisu goal to the National Court in Mt Hagen is in a bad state. On one occasion on 22 October 2020, after a court sitting and they were transporting the detainees back to Baisu, they came across a section of the road that was particularly bad, and they slowed down. At that moment they were attacked by a man throwing a large stone at them, which broke the windshield, and they were fortunately spared. Their cars have been damaged from the poor rod conditions. They have always missed out in the budget allocations from the province.	
P2	Regina Rumints, filed 24 November 2020	Deposes to obtaining quotes to fix the Baisu Road which is a 6.5km road from Baisu CS to Bagl Junction in Mt Hagen from three reputable companies based in Mt Hagen. The price range from K9,431,263.38 to K10,342, 922.19 being the highest. 	
P3	Ranson Tiki, filed 18 December 2020	He is a CS Superintendent and CS Commandeer at CS Baisu. He has served a total of 42 years in various capacities in CS. He says that Baisu is the largest Correctional Services facility in the Highlands region and also caters for detainees from Momase. He says that currently there are 141 detainees at CS Baisu and more than half of them are from Enga. It is a costly exercise looking after all the detainees and they get no help from the Enga provincial government. The roads are in very bad state, and due the recent breakout, it is very risky travelling on the road. There was a large breakout, which resulted in eight escapees being killed. One officers son was killed in retaliation. Officers do not find it attractive working there. They have not been getting adequate funding. 	
P4	Peter Oimiof, filed 18 December 2020	He is a Senior Inspector and Manger of Operations at CS Baisu. He has served since 1995. He says that Baisu is the largest Correctional Services facility in the Highlands region and also caters for detainees from Momase. He says that currently there are 141 detainees at CS Baisu and 71 are from Enga. It is a costly exercise looking after all the detainees and they get no help from the Enga provincial government. The roads are in very bad state, which adds to the challenges they are facing in the operations. Most of their vehicles are rundown. There was a large breakout, which resulted in eight escapees being killed. One officers son was killed in retaliation. Officers do not find it attractive working there. They have not been getting adequate funding to meet their expenses.	
P5	Titus Watipa, filed 18 December 2020	He is an inspector at CS Baisu and is the Manager in charge of welfare, and has been serving for 25 years nine months. He says Enga has its own facilities but does not accommodate any detainees. More than half of the detainees are from Enga. They have very big expenses like logistics, electricity, water, food rations from the high number of detainees. It is a costly exercise looking after all the detainees and they get no help from the Enga provincial government. The roads are in very bad state, which adds to the challenges they are facing in the operations. Most of their vehicles are rundown. There was a large breakout, which resulted in eight escapees being killed. One officers son was killed in retaliation. Officers do not find it attractive working there. They have not been getting adequate funding to meet their expenses.	
P6 	Kewa Koiti 	He is a Sargeant Major and Station Manager at Baisu CS. More than half of the detainees are from Enga.It is a costly exercise looking after all the detainees and they get no help from the Enga provincial government. The roads are in very bad state, which adds to the challenges they are facing in the operations. Most of their vehicles are rundown. There was a large breakout, which resulted in eight escapees being killed. One officers son was killed in retaliation. Officers do not find it attractive working there. They have not been getting adequate funding to meet their expenses from both the Western Highlands provinces and from Enga Provincial government.	
P7	Ranson Teki, filed 29 April 2021	He is now the acting Commander of Baisu CS. He has served in the CS since 10 January 1975. He says prisoners from Enga have been detained at Baisu for the last 31 years since its facility closed in 1990. All remandees are transported by road to wherever the National Court sits, this could be Wabag, which is four hours by road or Porgera, which takes eight to nine hours. He attaches a copy of the officer’s overtime claim transporting detainees to court. They regularly update the National Court in Wabag of the number of detainees from Enga at the National Court in Wabag. He says they use the road to transport detainees to and from hospitals, church activities as part of their rehabilitation programme, and they use the road for their other daily activities. Because of the poor state of the road, donor agencies and their partners are discouraged from coming to see them. The poor state of the road has affected their service delivery. He provides a list of names of detainees as of 22 April 2021.   	

3.	The Enga Provincial Government has filed one affidavit of its Governor, Grand Chief, Sir Peter Ipatas.

No 	Affidavit 	Evidence 	
D1	Governor, Hon. Grand Chief, Sir Peter Ipatas, filed 2 February 2021	He is the Governor of Enga Province, and is duty bound to serve the people of Enga within his province. The Enga Provincial Government (EPG) receives allocation as other provinces in the country and it is to service the five districts of the province. Enga has its own prison, that is  Mukurumanda, and the EPG is committed to making funds available to have that facility operational. The Baisu Correctional Services is a national institution which has budgetary allocation provided by the National Government. The road link between Baisu to Mt Hagen is located within Mt Hagen Central open electorate which comes within the budgetary purview of the first and third defendants. EPG has no funding allocation for the Baisu CS, nor does it have any responsibility to fund anything outside of his province. He says it is unreasonable or unfair for him to fund anything outside of his province. His responsibility is to fix up  Mukurumanda	

4.	It is not disputed that the roads from Baisu CS to Mt Hagen city is in very poor condition. All the evidence suggests this, and none of the parties in their submissions dispute this. The relevant questions that are being raised are:

•	What rights are being affected by the poor state of the road?
•	What is the National Court’s jurisdiction?
•	Who should be responsible to fix the road?
•	What orders should the court make?

5.	In my view, the body of law in Papua New Guinea suggests that when discussing human rights, the view that the court should take to enforce and protect human rights should not be limited to what an individual suffers. It should be extended to look at what kind of conditions exist that makes the exercises of rights and freedoms difficult or impossible. This is what the seminal case of Re: Effect of Dilapidated Road Conditions on Enforcement of Human Rights in Madang Town (2021) N8722 (“Madang case”) suggests. It is not a Supreme Court authority, and although, I am not bound by it, I am persuaded by it.

6.	The relevant part of the decision states:

23. The People of Madang have a right to an efficient road network. This must clearly be understood. They have a right to an ordered and orderly society. A clean and well-run town in which basic transport infrastructure is maintained in a place in which order and discipline will prosper. A provincial capital which oozes neglect and apathy, which greets people with vast potholes and rubbish and broken road-pavements and vehicles being driven haphazardly, is a place which says to newcomers and residents alike: this is a free-for-all, make your own rules, do as you please, do your best to survive. In such places – which is the January 2021 version of Madang town – the Rule of Law is at risk. Fundamental rights and freedoms are imperiled. The first category of Basic Rights acknowledged in the Preamble to the Constitution – “life, liberty, security of the person and the protection of the law” – is at stake.

24. Human rights are being infringed by the dilapidated road conditions in Madang town, as the road conditions affect all road users including pedestrians to the right to freedom based on law under Constitution, s 32(2), the right to the full protection of the law under the Constitution, s 37(1) and the right to freedom from acts (including acts of omissions) that are harsh and oppressive under Constitution, s 41(1).

7.	One can easily resist the Plaintiff’s claim by saying the court’s will be opening the flood gates because there are many other services that the state provides or should provide that will be open to challenge in the courts on the basis that it provides an environment for other rights to be infringed. An example could be the poor state of a hospital or lack thereof. The non-availability of a school in certain parts of the country. The obvious conclusion would be that the courts are stepping into the arena of the legislature and the executive whose sphere of influence is to decide what projects are worthy of attracting public funding, given the limited resources that is available to the country. The Fourth Defendant in its written submissions does not raise any objection on this issue. It says that its responsibility is limited to the geographical confines of Enga Province. The State appears to be suggesting that it is not a domain the courts should enter into.

8.	Section 18(1) of the Constitution confers original jurisdiction on the Supreme Court the powers to interpret and apply the Constitution, subject to the proviso that if the Constitution enables another Court or tribunal to exercise this jurisdiction than it is permissible. In my view, provisions of the Constitution relating to the enforcement and protection of human rights can be interpreted and applied by the National Court. This is provided for by ss 22 and 57(1) of the Constitution.  

9.	Section 99 of the Constitution talks about separation of powers, and it states:

99. Structure of Government.
(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.
(2) The National Government consists of three principal arms, namely:—
(a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and
(b) the National Executive; and
(c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.
(3) In principle, the respective powers and functions of the three arms shall be kept separate from each other.
(4) Subsection (2) is descriptive only and is non-justiciable. (emphasis added)

10.	Separation of powers is subject to the Constitution. This means it is subject to ss 22, 57 and 166 of the Constitution, provisions of the Constitution I will refer to later. The Madang case makes this point which I adopt:

29. Inspiration is provided by the Constitution. As the Supreme Court emphasised in Namah v Pato (2014) SC1304 the Constitutional Laws of Papua New Guinea are not simply statements of general principle. They impose and confer real and enforceable powers, functions, duties and responsibilities, which exist by operation of the Constitution, without the need for supporting, machinery or procedural laws to bring them into effect.

11.	One must remember that s 99 of the Constitution does not entrench the separation of powers as a justiciable provision of the law, but one that must be observed in principle. There are many aspects of government that one arm of government assumes responsibility over. Of the many examples, is the power of the court to make laws in the form of rules of court. The executive is drawn from the legislature. Where the head of the executive and legislature is absent the head of the judiciary will perform the ceremonial role of the head of state. Here we are considering the enforcement and application of rights which have constitutional force.

12.	Another common practical criticism would be that there are other roads that are also affected, and the flood gates will be opened. In my view, such a criticism can be easily disposed of by responding that each case must be decided on its own merits. Those matters are not before the court and should not deter me from considering what is before me for deliberation. There is a fundamental distinction here with the Madang case. In that case, the court initiated the proceedings on its own accord. In this case, an aggrieved citizen has come to court. I must be weary of shutting the doors of justice in her face.

13.	The example that the Plaintiff gives of an incident that happened to her while they were driving back to Baisu Correctional Services Institution of being attacked in their vehicle due to the poor state of the road giving licence to an unsavory character stoning the vehicle suggests to me that the right of the Plaintiff and other users of the road to s 32(2)(a) of the Constitution freedom based on law will be seriously imperiled, that is:

“…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”

14.	There is a distinction between a right and a freedom. A right is something that one is entitled to that another person is obligated to observe. A freedom is an ability that one has to take a certain course, if and when you choose to, so long it does not affect anyone else’s rights. Clear examples include freedom of movement and freedom of expression. Here s 32 is laying the foundation for any person to follow their vocation in life and live a worthy and fulfilling life. The ability to exercise this freedom to live a good life of your choice is affected by many external variables. One of the most basic foundations to live in freedom is the availability of adequate roads. If there are no roads or poor roads, you cannot go to court to pursue your rights. Hospitals will be inaccessible. Schools will be out of reach. Markets to sell goods will be a dream. Friends and family will be out of contact. Life as the renowned political philosopher Hobbes said, will be “nasty, short and brutish.” 

15.	It stands to reason, that this freedom that human beings enjoy guaranteed by s 32 of the Constitution must be protected by law, and for this reason, s 37(1), right to full protection of law is necessary. This freedom must be recognized and protected. To the extent that it is not being protected, it is being infringed.

16.	It also stands to reason that to the extent that this freedom is not protected, it is harsh and oppressive, contrary to s 41(1) of the Constitution.

17.	For this reason, I accept the submissions of the Plaintiff on this point. The Fourth Defendant and the Seventh Defendant do not make any real submission on this aspect of the case. I therefore agree with the Plaintiff that the road users of Baisu Road are experiencing continuous breaches of these said human rights.

18.	I find that the rights of the users of the road connecting Baisu Correctional Institute and the Highlands Highway of Western Highlands Province to s 32(2), 37(1), 41(1) of the Constitution have been and continues to be violated by the very bad, and deteriorating state of the road.

19.	The next question is what is the National Court’s jurisdiction? In my view, the Plaintiff has cited the appropriate provision of the Constitution that entitles the National Court to intervene.

20.	The first provision is s 22 of the Constitution, which states:

22. Enforcement of the Constitution.
 
The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine. 

(Emphasis added)

21.	I am dealing with a case that relates to rights of individuals and the duties of public authorities.

22.	The later part of s 22 is also important. In my view, it entitles me to consider case authorities from other democratic societies to develop methods to protect and enforce human rights.

23.	The next provision is s 57(3) of the Constitution. It states:

57. Enforcement of guaranteed rights and freedoms.
 
(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. (Emphasis added).
(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.

24.	By s 57(3) of the Constitution, the National Court is conferred jurisdiction to make such orders and declarations as are necessary to protect and enforce human rights and freedoms. 

25.	Section 166 of the Constitution is then the ultimate provision that is the well spring of the powers of the National Court to enforce and protect human rights, and it states:

166. Jurisdiction of the National Court.

(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.
(2) In particular, the National Court has the jurisdiction set out in—
(a) Section 22 (enforcement of the Constitution); and
(b) Subdivision III.3.D (enforcement); and
(c) Section 155 (the National Judicial System),
and otherwise as provided by this Constitution or any other law.
(3) Subject to any Act of the Parliament and to the Rules of Court of the National Court, the jurisdiction of the National Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.
(4) The jurisdiction of the National Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another Judge or other Judges.
(5) The jurisdiction of the National Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court. (Emphasis added)

26.	The jurisdiction is unlimited in the sense that so long as the National Court exercises its powers within the confines of law, reason, fairness and justice, the terms of its powers are not easily defined or limited.

27.	The third question is, who should be responsible to fix the road? This is the bone of contention. The Plaintiff submits that all Defendants to varying degrees have a responsibility to fix the road. The Plaintiff relies on the Madang case to submit that the Provincial government bears the responsibility. It says that each of the Defendant should bear the responsibility to fix the road. It says further that since a majority of the prisoners are from Enga, the Enga Provincial Government must share the responsibility with the other Defendants. Enga Provincial government makes serious objections against this submission. It says that the Correctional Services is a State Service and the responsibility of the National Government. The roads are located in Western Highlands and are the responsibility of the Mt Hagen District and the Western Highlands Provincial Government. They also say that there is no evidence that a majority of the detainees are from Enga, as during cross-examination the Plaintiff did not say clearly where the majority of the detainees were from,

28.	Let me deal with the submission from the Enga Provincial Government first. It makes a compelling submission, but that submission falls short of addressing the primary concern that the Plaintiff raise. I find that there is ample evidence from the affidavit materials with official records to show that a majority of the detainees are from Enga. The Plaintiff is not really talking about the Correctional Service facilities as such. The concern is about the road and the users of the road. To that end, the users of the road are subjects of the Enga Provincial Government and are entitled to receive support from their provincial government, whether they are physically located in Enga or in another part of the country. Their rights are being affected as well as they are road users too. Although I accept their argument that the roads are physically located in Western Highlands province, that does not excuse them from participating and contributing to any discussions on the improvement of the roads. 

29.	In the Madang case, the roads the subject of the inquiry were under the Provincial Government. There were other roads that were under the national government. I have considered the affidavit materials and the law, and I do not see any impediment to the two Provincial governments sharing the costs of maintaining the roads with the Mt Hagen District and the National Government. There are people whose rights are being affected, and if they choose not to participate in an important court proceeding, the court will be guided by fairness, justice and good conscience to resolving this matter.  

30.	The final issue is what orders should the court make? Section 22 of the Constitution allows me to consider experience from other democratic societies to determine how I should enforce rights and freedoms in Papua New Guinea, when there is a lack of machinery to effect it. This is one such case as it is a developing area of law.  I am particularly interested in the approach of the South African courts in enforcing social rights under their Constitution which have the force of law. One such case is Government of the Republic of South Africa. & Ors v Grootboom & Ors 2000 (11) BCLR 1169. I quote the summary of the case from the website of an international non-Government organization called International Network for Economic, Social and Cultural Rights:

A community of squatters, evicted from an informal settlement in Wallacedene had set up minimal shelters of plastic and other materials at a sports centre adjacent to Wallacedene community centre. They lacked basic sanitation or electricity. The group brought an action under sections 26(the right of access to adequate housing) and 28 (children's right to basic shelter) of the South African Constitution for action by various levels of government. The High Court, relying on the principles of judicial deference outlined by the Constitutional Court in the Soobramoney case, found that the respondents had taken “reasonable measures within available resources to achieve the progressive realisation of the right to have access to adequate housing” – as required by s. 26(2) of the Constitution. However, because the right of children to shelter in article 28 was not subject to available resources, the High Court held that the applicants were entitled to be provided with basic shelter. On appeal to the Constitutional Court the Court found no violation of s. 28 but found instead a violation of the right to adequate housing in s.26. The Court held that article 26 obliges the state to devise and implement a coherent, co-ordinated housing programme and that in failing to provide for those in most desperate need the government had failed to take reasonable measures to progressively realize the right to housing. The Court ordered that the various governments “devise, fund, implement and supervise measures to provide relief to those in desperate need.” The South African Human Rights Commission agreed to monitor and if necessary report on the governments' implementation of this order. <https://www.escr-net.org/caselaw/2006/government-republic-south-africa-ors-v-grootboom-ors-2000-11-bclr-1169-cc>

31.	The test in that case was whether the government had taken “reasonable measures within available resources to achieve the progressive realisation of the right to have access to adequate housing” – as required by s. 26(2) of the South African Constitution.

32.	Section 22 of the Constitution also allows the National Court to consider the National Goals and Directive Principles. The most relevant here is National Goal No 2 on equality and participation. I take this goal into account as well. 

33.	Taking all these factors into consideration in the protection and enforcement of rights and freedoms under ss 22 and 57(3) of the Constitution and having regard to the National Court’s jurisdiction under s 166 of the Constitution, I hold that where the executive and legislative branch of government do not provide adequate funding for basic services that results in the infringement of rights and freedoms of citizens, they should be ordered to provide adequate resources within their available resources, financial or otherwise in a reasonable period, to deliver the much-needed service. 

34.	From the evidence tendered, the Baisu road serves as an important network for the delivery of government services. There is simply no evidence before me, showing whether the relevant governments have inadequate resources in terms of their budgetary allocation, what priorities they have, policy framework in the law and justice sector and any long-term plans they have for the development of the province and the district. It is necessary that they do. It is also necessary that it is publicly available. There is nothing in the evidence to show any good faith efforts by the Defendants to resist the Plaintiffs claim except for the Fourth Defendant. 

35.	In my view taking this approach that I have discussed above will ensure that there is adequate planning, budgeting and implementation of improvement to the Baisu road. I do not consider it necessary to make orders in terms of term 2 of the Originating Summons as it is not the only user of this road.

36.	Considering the powers that I have under ss 22, 57(3) and 166 of the Constitution, I make the following orders:

1.	It is declared that the road condition connecting Baisu Correctional Institute and the Highlands Highway of Western Highlands Province is in a very bad, deteriorating state and in dire need of immediate maintenance.

2.	It is declared that rights of the users of the road connecting Baisu Correctional Institute and the Highlands Highway of Western Highlands Province under s 32(2), 37(1), 41(1) of the Constitution have been and continues to be violated by the very bad and deteriorating state of the road.

3.	All Defendants named in this proceeding are ordered to immediately allocate sufficient funding to fix the road leading to Baisu Correctional Institute referred to in term two of the orders.

4.	All defendants named in these proceedings be ordered to consistently allocate funding through their respective budgets every year thereafter commencing 2022 to maintain the road to Baisu Correctional Institute referred to in term two of the orders.

5.	The Seventh Defendants be ordered to provide a new vehicle to the management of Baisu Correctional institute from their respective Law and Order Budgets, or any other available funding from any other basket they may have, to assist the management of Baisu Correctional Service to effectively carry out their operations.

6.	If for any reason, the Defendants are not able to provide funding to fix the road and provide vehicle to the Baisu Correctional Service, a report must be made to the court as soon as practicable, or at least, not more than three months from the date of this order as to when funding will be available to satisfy the orders of the court.

7.	     Each Party shall bear their own costs.

8.	     Time is abridged.	

Judgment accordingly.

__________________________________________________________________
Public Solicitor: Lawyers for the Plaintiffs 
Strategic Legal Services:  Lawyer for the Fourth Defendants
Solicitor-General: Lawyers for the Seventh Defendant