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Buimo Corrective Institution, Re [1988-89] PNGLR 266 (27 July 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 266 - Re Conditions of the Buimo Corrective Institution 

[1988-89] PNGLR 266

N741

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF SECTION 37(1) AND SECTION 57(1) AND SECTION 155(4) OF THE CONSTITUTION

AND

IN THE MATTER OF CONDITIONS AT BUIMO CORRECTIVE INSTITUTION

AND

IN THE MATTER OF THE CORRECTIVE INSTITUTIONS ACT AND REGULATIONS

Waigani

Brunton AJ

27 July 1989

CONSTITUTIONAL LAW - Guaranteed rights and freedoms - Enforcement of - By Court “on its own initiative” - No prescribed procedure for - Irregularities noted on prison inspection as Visiting Justice - Order for State to show cause - Reasonable time to comply - Constitution, s 57(1).

PRACTICE AND PROCEDURE - Enforcement of constitutional rights - By Court “on its own initiative” - No prescribed procedure for - Irregularities noted on prison inspection as Visiting Justice - Order for State to show cause - Reasonable time to comply - Constitution, s 57(1).

The Constitution, s 57(1), provides:

“(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 any 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.”

During inspection of a corrective institution by a Judge of the National Court exercising his power as ex officio Visiting Justice under s 15 of the Corrective Institutions Act (Ch No 63), the Judge noted breaches of the Corrective Institutions Act and Regulations and possible breaches and/or violations of the Constitution.

Because the National Court can enforce the rights or freedoms under Pt 11, Div 3, of the Constitution, “on its own initiative”, and in the absence of rules of practice or procedure relating thereto, orders should be made that the State as employer of the Commissioner for Corrective Institutions and the Visiting Medical Officer for the particular institution, who were the persons responsible for the matters raised in the inspection, show cause before a Judge of the National Court, why orders under s 57 of the Constitution or orders by way of judicial review should not be made against the State, its servants or agents, to enforce compliance with s 37(1) of the Constitution, the Corrective Institutions Act (Ch No 63) and the Corrective Institutions Regulations, the order to be returnable within a time sufficient to enable the State to take instructions and answer the matters raised.

Cases Cited

Tom Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87.

Court Motion

Following inspection of a Corrective Institution by a Judge of the National Court, the Judge requested counsel for the Principal Legal Adviser and the Public Solicitor to attend before him and delivered the following determination.

Counsel

G K Garo, for the Principal Legal Adviser.

D D S Koeget, for the Public Solicitor.

27 July 1989

BRUNTON AJ: Counsel were requested to attend the National Court in Waigani following my visit to Buimo Corrective Institution, outside Lae, on Tuesday, 25 July 1989.

On the morning of 25 July 1989, I exercised my power under s 15 of the Corrective Institutions Act (Ch No 63) as an ex officio Visiting Justice and inspected the Buimo Corrective Institution at Lae. At my request, I was accompanied by Mr Singamot, a Senior Magistrate, who is one of the regular visiting justices appointed by virtue of s 12 of the Corrective Institutions Act. Also at my request, the inspection was attended by Mr M Konido of the Public Solicitor’s Office and Mr M Peter and Mr B Poyia of the Public Prosecutor’s Office, in Lae.

During the course of the inspection a number of breaches of the Corrective Institutions Act and Regulations were noted, together with other matters that may or may not constitute breaches of the law or violations of the Constitution.

1.       In two of the cell blocks visited, a number of detainees were held in the security cells. Some of the detainees complained that they had been locked in the cells for trivial reasons, amounting to minor breaches of discipline. None of the detainees interviewed had been charged with any offence under Pt VI (Corrective Institutions and Lock-up Offences) of the Corrective Institutions Act. It became apparent that warders at Buimo were using their delegated powers under reg III(3) of the Corrective Institutions Regulations (Separation of Detainees) to punish detainees against whom offences were alleged, without charging the detainees before a visiting justice, as is required by Pt VI of the Act. Any misuse of discretional power under reg III(3) violated reg 9 which reads:

“Except as provided by this Regulation or any other, a correctional officer shall not punish, or inflict privation on a detainee.”

The judgment of Bredmeyer J in Tom Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87 at 88-89 reveals the constitutional nature of infractions of the Corrective Institutions Act and Regulations. There his Honour said, in an analogous matter (treatment in B Division):

“... The relevant laws are found in certain sections of the Constitution, the Corrective Institutions Act and the Corrective Institutions Regulations. The relevant sections of the Constitution can be divided into two categories. The first is s 37(1):

‘37.     Protection of the Law

(i)       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.’

This subsection means that every aspect of treatment given to a detainee in ‘B’ Division must be covered by a law which for practical purposes means a provision contained in the Corrective Institutions Act, Regulations or in the Commissioner’s Orders and Instructions. This constitutional provision means that no aspect or at least no major aspect of a prisoner’s treatment in ‘B’ Division should be at the whim of the officer-in-charge of that Division or of any warder; the warders must treat a prisoner in accordance with the laws. If they fail to do so, the prisoner can seek redress under s 57 of the Constitution which gives wide powers to the National Court and the Supreme Court to enforce fundamental rights provisions. Section 37(1) means that if some aspect of the prisoner’s treatment in ‘B’ Division is not regulated by a law then the section has been breached. It also means that if there is a law on some aspect of prison treatment, and that law is breached by the prison staff, the prisoner can claim that he has not been given the full protection of the law and under ss 57 and 58 can get redress from the courts in the form of damages or an order compelling the warders to do something or ordering them not to do something.”

2.       A number of detainees were observed to have health problems. I saw one detainee with ringworm, one remandee with an obvious scalp infection which may have been an infestation like scabies; one remandee was suffering from a psychiatric disorder.

An inspection of the kitchens and cooking facilities at Buimo (main compound) showed them to be encrusted with soot and grime. There were a large number of blue-flies in the immediate vicinity of the food, both cooked and cooking. The kitchen had no flywire and was filthy.

The security cells of the two cell-blocks visited contained a visible presence of mosquitoes. Detainees complained of being continually bitten by mosquitoes. Mosquitoes were present at the time of the inspection which was near to midday. Mosquito nets were not issued to detainees in the security cells. Indeed, no mosquito nets were seen at all during the inspection.

Schedule 4, Scale of Clothing, Bedding and Other Articles, Pt 1, Scale B of the Corrective Institutions Regulations (reg 117) lists the issue of mosquito nets as compulsory to detainees. Under Pt 2, Scale B, mosquito nets are discretionary, “if directed by a visiting medical officer, medical officer or officer in charge”.

Detainees complained that they were not allowed proper access to the medical aid post, and that when they were allowed to attend the post, treatment was brief or unsatisfactory.

The Acting Commander of Buimo informed me that there had been no recent visit to Buimo by a visiting medical officer.

3.       The scale of rations, prescribed by reg 116, and Schedule D of the regulation did not appear to be complied with. At the time of the inspection the only food in preparation was brown rice, tinned meat or fish, wheat-flour and cooking oil. Vegetables and fruit, as required by the Schedule, Columns 5 and 6, were not in evidence.

4.       The scale of clothing, bedding and other articles Pt 1, Scale A, was not complied with. The scale under Pt 2, Scale B, was not complied with in that the clothing of many detainees was in a poor condition, and obviously had not been re-issued when its normal life had expired.

5.       Detainees had no access at all to newspapers and magazines (regs 148, 149) nor to radios.

6.       There were a number of complaints about the length of sentences served by long-term offenders. I was concerned that I could not find evidence of the operation of review procedures for life sentences under regs 143, 144 and 145 of the Corrective Institutions Regulations.

Section 57(1), Enforcement of Guaranteed Rights and Freedoms, of the Constitution, reads:

“(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.” (My emphasis.)

The National Court can enforce the rights or freedoms under Pt II, Div 3 of the Constitution “on its own initiative”.

Of course, it is better that the Supreme Court or the National Court does not have to do this, and it is for this reason that the Public Solicitor was requested to attend this hearing. At present, there are no procedural or practice rules to act as a guide in these matters. However, the State should be given time to take instructions, and to make an answer to the matters raised.

The persons responsible for the matters raised in the inspection appear to be the Commissioner for Corrective Institutions and the Visiting Medical Officer for Buimo Corrective Institution. These persons are employed by the Independent State of Papua New Guinea.

Accordingly, I order that:

the State show cause before me, or a Judge of the National Court, why orders under s 57 of the Constitution, or orders by way of judicial review, should not be made against the State, its servants or agents, to enforce compliance with s 37(1) of the Constitution, the Corrective Institutions Act, and the Corrective Institutions Regulations.

Orders accordingly

Lawyer for the State: Principal Legal Adviser.

Amicus Curiae: Public Solicitor.