In the Matter of Enforcement of Basic Rights Under the Constitution Section 57 [2006] PGNC 29; N2969 (2 February 2006)

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IN THE MATTER OF ENFORCEMENT
OF BASIC RIGHTS UNDER THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
SECTION 57
ON THE OWN INITIATIVE OF THE NATIONAL COURT

RE CONDITIONS OF DETENTION AT
BEON CORRECTIONAL INSTITUTION, MADANG PROVINCE
AND
RE CONSTITUTION,
SECTIONS 36 AND 37

HUMAN RIGHTS – conditions of detention for convicted prisoners – commission of disciplinary offences within prisons – confinement cells – need for conditions of confinement to comply with constitutional requirements – Constitution, Section 36: freedom from inhuman treatment – Section 37: protection of the law.

CONSTITUTIONAL LAW – Basic Rights – enforcement of basic rights – Constitution, Section 57: enforcement of guaranteed rights and freedoms – power of National Court to enforce human rights – National Court shall protect and enforce rights on application or on its own initiative.

A Judge conducted an official visit of a correctional institution and inspected the conditions in which prisoners and remandees were being detained. The Judge, having inspected the separate confinement cells in which four prisoners who had committed internal disciplinary offences were being detained, expressed concern about whether the conditions of detention complied with constitutional requirements or guaranteed human rights. The Judge heard from the four prisoners and, having heard the views of the Gaol Commander, indicated to the Commander that consideration would be given to making an order regarding the future use of the cells, using the powers of the National Court on its own initiative under Section 57 of the Constitution.

Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212
Application by Benetius Gehasa (2005) N2817
Constitutional Reference No 1 of 1977, Re Section 42 of the Constitution [1977] PNGLR 362
In The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819
John Alex v Martin Golu [1983] PNGLR 117
Supreme Court Reference No 3 of 1979; The State v John Rumet Kaputin [1979] PNGLR 532
The State v Ass Medron Nangil, Pius Moro, Batla Mahen, Jacob Peni, Weite Bumari, Paulus Bill (2005) N2823
The State v Bafe Quati and Others [1990] PNGLR 57
Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87

CJ – Chief Justice
DCJ – Deputy Chief Justice
eg – for example
J – Justice
N – National Court judgments
OK – okay; all right
SC – Supreme Court judgments

1	–	Beon correctional institution detainee break-up, 1 February 2006.
2	–	Prisoners in separate confinement at Beon, 1 February 2006.

This is an enforcement of basic rights by the National Court acting on its own initiative.

This judgment gives my reasons for deciding to exercise the power of the National Court under Section 57 of the Constitution to enforce the human rights of four prisoners being detained at Beon Correctional Institution, Madang Province. I have decided to order that the separate confinement cells at Beon be closed and that the four prisoners being kept in them be released from those cells and detained elsewhere within the prison.

I use the term ‘human rights’ interchangeably with the terms ‘constitutional rights’ and ‘basic rights’. These words mean the same things. They refer to the rights conferred on all citizens, and in some cases non-citizens, by Division III.3 (basic rights) of the Constitution of the Independent State of Papua New Guinea.

On Wednesday 1 February 2006 I conducted an official ‘visiting justice’ visit of the Beon correctional institution, Madang Province. It is also called a gaol or prison. I inspected it using my powers as a Judge under Sections 144, 145 and 148 of the Correctional Service Act.

A Judge can visit any correctional institution in the country when the Judge thinks fit and, amongst other things, inquire into the treatment and conduct of the detainees and other matters as the Judge thinks fit. A Judge has the power to inquire into complaints of human rights abuses and under the Constitution has the power – and duty – to make orders aimed at correcting such abuses.

I have been the circuit Judge in Madang since November 2005. This was my first visit to Beon. I stayed for three hours. I met the Acting Gaol Commander, Mr Gubag, on arrival. He escorted me to the various compounds comprising Beon Gaol:

I gained the impression that the first three compounds were clean, hygienic and reasonably spacious. The minimum-security compound and the juvenile compound are located very close to each other. These buildings were opened in 2000 with Australian Government funding assistance. It is a credit to the gaol administration and the detainees who have been kept there for the past five or six years that these compounds still appear to be in very good condition and well maintained. The female compound too appeared clean, tidy and well organized. There are three detainees there.

The same cannot be said, however, for the main compound. It seems very crowded. There is limited space for exercise. The sleeping quarters are confined. There are no mattresses for the detainees. They sleep on the concrete floor. Shortage of towels seems a major problem. Many of the detainees do not have prison uniforms. I observed the preparation of the evening meal by a team of detainee cooks. It was boiled brown rice and tinned fish, without vegetables.

It seems that the remandees (detainees who are awaiting trial) are being housed in the main compound with convicted prisoners (also known as ‘convicts’), which is a serious problem and probably unconstitutional. I estimate that there are about 200 detainees in the main compound, based on the a break-up of the total number of detainees provided to me, as shown in the table below.

Categories	High risk	Med risk	Low risk	Total
Male adult convicts	86	66	72	224
Male adult remandees	63	0	0	63
Female adult convicts	0	1	1	2
Female adult remandees	0	1	0	1
Male juvenile convicts	7	6	0	13
Male juvenile remandees	11	0	0	11
Total	167	74	73	314

At each of the four compounds I addressed the detainees and invited them to ask questions. They brought many matters to my attention, some of which can only be sorted out by them being individually interviewed by me or another visiting magistrate or judge or through the making of applications in the National Court. Apparently this was the first official visiting justice visit to Beon for some time.

When I inspected the main compound I asked to be shown the separate confinement cells. Most gaols in the country have special cells where detainees who have committed a disciplinary offence within the gaol are separately confined. These are commonly known as ‘dark cells’ because often they are literally dark cells. I found this to be the case at Lakiemata correctional institution, West New Britain Province. I am the resident Judge at Kimbe and I visited Lakiemata six times during 2005. One of the major concerns of the detainees there was the over-use of the dark cells. I discussed the matter with the Acting Gaol Commander and he agreed with the concerns I expressed: the dark cells appeared to breach the human rights provisions of the Constitution. The Lakiemata dark cells are no longer in use. There is a disciplinary system still in place. But the dark cells are out of bounds except in extreme and urgent cases where gaol security is a special priority.

I had read about the Beon dark cells in the judgment of Manuhu J in The State v Ass Medron Nangil, Pius Moro, Batla Mahen, Jacob Peni, Weite Bumari, Paulus Bill (2005) N2823. That was a case in which his Honour sentenced five prisoners for escaping from Beon Gaol. Some of them said that they had escaped because they had been subject to inhuman treatment by being confined in the dark cells for long periods. His Honour commented on that and suggested that the complaints be looked into by the Public Solicitor:

... all of the prisoners have various reasons for the escape. Some did not like the type of treatment they were receiving from the warders as well as other inmates. There is a complaint about a "dark cell" at Beon Jail where prisoners are said to be subjected to inhumane treatment, including exposure to their own wastes because of lack of proper toilet facilities. I strongly recommend that the Office of the Public Solicitor take appropriate steps to investigate the complaints on the dark cell and take all appropriate measures to address the complaints raised by the prisoners.

I do not know whether Manuhu J’s recommendation was formally conveyed to the Public Solicitor or whether the Public Solicitor is aware of the complaints. It seems fairly clear, however, that nothing has been done.

The Beon dark cells are still there and still in use. Yesterday I found four prisoners there. The conditions in which they are being detained are a cause of some concern.

At the end of one of the main cellblocks, next to a quadrangle that is between that cellblock and another, there are three dark cells next to each other. To get into the area where the three dark cells are, you have to open a thick iron-plated sliding, padlocked door. Once in that area outside the three dark cells – which is something like a one-metre wide corridor – you will see the hinged gates which are the entry and exit point for each cell.

Each cell is a cubicle. By my rough calculations, I would say the dimensions are:

That is, each cell is about the size of a standard-sized bathroom in a medium-covenant house. Certainly not spacious. Each cell door has a small grille through which a little light can pass. If you are standing on the outside of the cell and look in it is possible to get a general idea of what the detainee’s face looks like. When I stood in this one-metre corridor outside the cells there would have been some natural light trickling into each cell. But I imagine that when the big, heavy, ironclad sliding door is closed, no light could come in.

The Gaol Commander was with me when I stood in the one-metre corridor. I asked the prisoners how long they had been in there and what they had done to get themselves there. Two were together in the middle cell and there was one each in the other cells. A total of four prisoners.

They have all been made the subject of an ‘order for separate confinement’ that purports to have been made by the Commissioner of the Correctional Service, Mr Richard Sikani. After inspecting the dark cells I inspected the files of the four prisoners to check the documentation authorising their confinement. The details of the four prisoners are shown in table 2.

No	Name	Reason for confinement	Date of confinement	Due date of release
1	Ebu Galap	Prevent from further escaping	01.11.05	01.02.06
2	Billy Konge	Possession of dangerous weapon	02.12.05	02.03.06
3	John Paia Irakau	Prevent from escape	16.01.06	16.04.06
4	Warren Kuku	Consuming yawa	17.01.06	17.04.06

There are problems with these orders. They are expressed to be made under Section 46 and 106 of the Corrective Institutions Act 1959. However, that Act was repealed and replaced by the Correctional Service Act 1995. The 1995 Act does not appear to have any provisions that authorise these sorts of orders. Part XII of the Act (detainee discipline), containing Sections 151 to 162 is a detailed code that allows the commanding officer to charge and punish detainees found guilty of a disciplinary offence.

A detainee who does or attempts to do any of the following commits an offence:—

(b) acts in a disruptive, abusive or indecent manner, whether by language or conduct;

(c) engages in gambling or trafficking in unauthorized articles or substances;

(e) takes or uses alcohol, a drug of dependence or an unauthorized substance or article that has not been issued to the detainee, or takes or uses alcohol or a drug of dependence lawfully issued in a manner that was not prescribed or authorized;

(f) sends or receives a letter or parcel containing an article or substance that the detainee knows to be an unauthorized article or substance;

(g) acts in a way which is prejudicial to or threatens correctional institution property;

(j) breaches a condition of leave of absence from the correctional institution;

(l) commits an act or omission that is contrary to the good order, management or security of the correctional institution or the detainee;

(m) repeatedly behaves in a way that is prejudicial to the good order and management of a correctional institution.

Part XII then provides for an investigation to be conducted by the gaol’s Discipline Officer. Then if it is a serious matter, the Commanding Officer of the gaol is to conduct a hearing. Penalties are set out in Section 160 (penalties which may be imposed), which states:

Where, at a hearing, the Commanding Officer finds that the detainee is guilty of the offence or the detainee admits the truth of the charge, the Commanding Officer may impose on the detainee any one of the following penalties:—

(c) withdrawal of one or more of the detainee's privileges for a period not exceeding 14 days for each offence committed, but not exceeding in total 30 days;

(d) an order that a detainee is to lose, for each offence committed, up to 10 days of the period of remission to which the detainee is entitled, but not more than 10 days may be lost by the detainee in the 30 day period dating from 30 days prior to the date of hearing.

I gained the impression from looking at the files of the four prisoners in the dark cells that most of these provisions had been breached. In particular, I noticed that all four prisoners had been ordered to spend three months in the dark cells. This appeared to be in direct contravention of Section 160(c), which imposes a limit of 30 days on the withdrawal of privileges.

These were all matters of concern arising from my visit to the gaol. Serious as they were, however, they were not my primary concern. My main concern is about the conditions in which the four prisoners were being kept in the dark cells.

I reiterate that each cell is a small, confined space and very dark. There is, with the iron sliding door closed, no natural or artificial light in these cells. They are very hot. There is almost no airflow. No fresh air of any significance flows through the cells. There is no air-conditioning. A bucket of some description is in each cell in which the prisoners attend to the needs of nature. They are apparently let out of the cells each morning for a short period, to shower. Then they go back in. They have no opportunity to exercise. I estimate that prisoners are spending 23 hours of each day in the dark cells.

In light of what I saw, the obvious question to ask was whether keeping prisoners in such conditions complies with the Constitution. Three constitutional provisions seemed relevant.

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.

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.

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

I discussed with the Acting Gaol Commander whether he thought that the conditions of the dark cells were humane. He conceded that the concerns I expressed to him were genuine. He said that it was important that there be some system of discipline and punishment in place within the gaol to preserve discipline and security in the gaol. Some prisoners are chronic escapers. They need to be locked up securely to ensure that they do not re-offend. Some cause fights and disruption with other detainees. He pointed out that in the minimum security compound there are separate confinement cells that have a good supply of light and fresh air. So if the court were to make orders regarding the dark cells, the separate confinement cells at the minimum security compound could be used.

I listened carefully to the acting Commander. He cooperated fully during my visit to the gaol.

I am left with no doubt in my mind that the answer to this question is yes. The four prisoners in the Beon dark cells who I interviewed yesterday are being submitted to physical and mental torture and treatment that is cruel and inhuman. Their treatment is inconsistent with respect for the inherent dignity of the human person. Clearly, their treatment breaches Sections 36(1), 37(1) and 37(17) of the Constitution. Pigs and dogs are not kept like this. Neither should human beings be.

The system of detainee discipline at Beon correctional institution, which, it appears, routinely allows detainees to be condemned to spend a flat sentence of three months in the dark cells, is an inhumane and unconstitutional system.

Having identified these breaches of human rights the next thing is to decide what to do about it.

The National Court has the power and duty under Section 57 of the Constitution to protect and enforce the basic rights; and such power and duty can be exercised either in its own initiative or on application by an interested party.

(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.

(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.

The provisions I rely on, in particular, are Sections 57(1) and 57(3), which provide that the National Court:

Section 57 has been applied in numerous decisions of the Supreme Court and the National Court since Independence. For example: Constitutional Reference No 1 of 1977, Re Section 42 of the Constitution [1977] PNGLR 362, Supreme Court, Frost CJ, Prentice DCJ, Williams J, Kearney J, Pritchard J; Supreme Court Reference No 3 of 1979; The State v John Rumet Kaputin [1979] PNGLR 532, Supreme Court, Prentice CJ, Saldana J, Wilson J; Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87, National Court, Bredmeyer J; John Alex v Martin Golu [1983] PNGLR 117, National Court, Kapi DCJ; Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212, National Court, Cory J; The State v Bafe Quati and Others [1990] PNGLR 57, National Court, Doherty AJ.

As I stated in two cases last year in Buka (Application by Benetius Gehasa (2005) N2817 and In The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819) Section 57 reinforces the general principle that the rights and duties conferred by the Constitution are not meant to be illusory, ephemeral or just feel-good principles, but real, tangible, powerful and enforceable obligations capable of immediate effect through court orders and declarations. Other provisions to like effect are Sections 22 (enforcement of the Constitution), 23 (sanctions) and Section 42(5) (liberty of the person).

I will therefore make some orders to enforce the human rights of the four prisoners I interviewed yesterday and the rights of all detainees at Beon correctional institution.

I recommend to the Commissioner of the Correctional Service that he organise a wholesale review of the disciplinary systems in place within all gaols in the country. If there are dark cells in operation at other gaols they need to be closed down. Detainee discipline and gaol security are extremely important. However, everything that is done within a gaol must comply with the Constitution.

I recommend to the Public Solicitor that he ensure that lawyers from his office are sent to Beon correctional institution on a much more regular and frequent basis.

I recommend to the Ombudsman Commission that it dispatches its investigators to Beon correctional institution on a much more regular and frequent basis.

The National Court makes the following orders under Section 57(3) of the Constitution, to enforce the human rights of four prisoners, namely Ebu Galap, Billy Konge, John Paia Irakau and Warren Kuku, currently held in the separate confinement cells (the "dark cells") at Beon correctional institution, Madang Province, and the rights of all detainees at Beon correctional institution; those rights being the right to freedom from inhuman treatment under Section 36(1), the right to the full protection of the law under Section 37(1) and the right to be treated with humanity and with respect for the inherent dignity of the human person under Section 37(17) of the Constitution:

National Court of Papua New Guinea

In the Matter of Enforcement of Basic Rights Under the Constitution Section 57 [2006] PGNC 29; N2969 (2 February 2006)