Komidese v Kuabaal (Commissioner of Correctional Services) [1985] PGLawRp 478; [1985] PNGLR 212 (1 August 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 212 - Re Constitution S37(20); Ana Komidese, Ihuepu Amsakepena and Mitinganu Ysas v Leo Kuabaal (Commissioner of Correctional Services) 

[1985] PNGLR 212

N512

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANA KOMIDESE, IHUEPU AMSAKEPENA AND MITINGANU YSASA

V

LEO KUABAAL (COMMISSIONER OF CORRECTIONAL SERVICES) AND IN THE MATTER OF S 37(20) OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Cory J

5 July 1985

26 July 1985

1 August 1985

CRIMINAL LAW - Administration of prisons - Transfer of “offenders” - Area away from that in which relatives reside - Basic rights - Directive relating to all “convicted female prisoners” - “Offenders” includes detainees on remand - Validity of directive - Breach of constitutional rights - Constitution, ss 37, 57 - Corrective Institutions Act (Ch No 63), ss 21 to 24.

CONSTITUTIONAL LAW - Basic rights - Breach of - Administration of prisoners - Transfer of “offenders “ - To area away from that in which relatives reside - Directive relating to all “convicted female prisoners” - “Offenders” includes detainees on remand - Application of directive to detainees on remand - Validity of directive - Breach of constitutional rights - Constitution, ss 37, 57.

The Constitution, s 37(20), provides:

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

In August 1984 the Commissioner of Correctional Services issued a directive whereby he ordered all “convicted female prisoners” from the Morobe Province to be incarcerated in the Bundaira Corrective Institution.

One convicted female prisoner and two female detainees remanded in custody awaiting trial who were transferred to the Bundaira Corrective Institution as a result of the directive sought declarations as to their fundamental rights under the Constitution, s 37(20), and the validity of the directive.

Held

N1>(1)      The word “offender” in the Constitution, s 37(20), includes suspected offenders and detainees remanded in custody awaiting trial as well as convicted persons.

Barnard v Gorman [1941] AC 378; 3 All ER 45, followed.

N1>(2)      A transfer of female “offenders” to an area away from that in which their relatives reside as a result of the directive of August 1984, other than for reasons of security or other good cause, constituted a violation of the fundamental right contained in the Constitution, s 37(20).

N1>(3)      A transfer of a female detainee remanded in custody awaiting trial as a result solely of the directive of August 1984 (and not as a result of any other order validly made under the Corrective Institutions Act (Ch No 63, ss 21 to 24) constituted a violation of the fundamental right not to be transferred other than in accordance with a valid direction of the Commissioner of Correctional Services as contained in the Constitution, s 37(20).

University of Papua New Guinea v Ume More [1985] PNGLR 48, applied.

N1>(4)      (Obiter) The transfer of female “offenders” as a result of the directive of August 1984, in the circumstances, constituted also a violation of other fundamental rights including the right to be given adequate time to file a defence, the right to be afforded facilities to obtain the attendance and carry out the examination of witnesses, the right to the conduct of the trial in accordance with the principles of natural justice and the right when detained in a police cell to be treated with humanity and respect for the inherent dignity of the human person.

Cases Cited

Barnard v Gorman [1941] AC 378; 3 All ER 45.

R v Bryson (1848) 12 JP 585.

University of Papua New Guinea v Ume More [1985] PNGLR 48.

Whittaker v Roos; Morant v Roos [1912] App D 92 (SA).

Wills v Bowley [1983] AC 57; [1982] 3 WLR 10; 2 All ER 654.

Summons

This was a summons under the National Court Rules, O 16, seeking declarations as to the constitutional rights and the validity of a directive of the Commissioner for Corrective Institutions.

Counsel

T A Doherty and M Zerunoc, for the plaintiffs.

J Baker, for the defendant.

Cur adv vult

1 August 1985

CORY J: This is an application for judicial review under the National Court Rules O 16, seeking the following declarations:

N2>(1)      A declaration that the plaintiffs herein are entitled by virtue of s 37(20) of the Constitution of the Independent State of Papua New Guinea to be incarcerated in a corrective institution nearest to their relatives and that such institution is at Buimo Corrective Institution, Lae.

N2>(2)      A declaration that a certain directive made by the defendant herein whereby he ordered that all female prisoners from the Morobe Province be incarcerated at Bundaira Corrective Institution, Kainantu is void and of no effect except in relation to offenders who have been transferred for security or other good cause and have such reason endorsed on their file.

N2>(3)      A declaration that a certain directive made by the defendant herein whereby he ordered that all female detainees on remand awaiting trial from the Morobe Province be incarcerated at Bundaira Corrective Institution, Kainantu is void and of no effect except in relation to offenders who have been transferred for security or other good cause and have such reason endorsed on their file.

The defendant has not filed any affidavits in reply to the facts alleged in the affidavits filed by the plaintiffs and has not sought to challenge the alleged facts set out in those affidavits which are as follows:

N1>(1)      Jack Keru Pati, sub-inspector, officer in charge, Prosecution Branch, Police Station, Lae stated that as a result of the directive issued by the defendant Commissioner all female detainees remanded in custody awaiting trial at both National and District Courts, Lae, were no longer detained at Buimo Corrective Institution, Lae but at Bundaira Corrective Institution outside Kainantu, Eastern Highlands Province. He further stated that as a result of the directive, police were charged with the duty of transporting female remandees from Lae to Kainantu and back to Lae for trial or committal hearing which are often only for mention and that through lack of transport a vehicle is only able to go to Bundaira once a week on a Saturday. This vehicle takes any remandees awaiting transport to Bundaira and brings back those persons whose case is listed during the week following. Those then wait and return to Bundaira the following Saturday. As a result of this procedure, remandees can wait for one week in the cells at the Police Station in Lae, but may wait longer if awaiting trial before the National Court and that the first two plaintiffs and a third accused Marea Kumun were held from 8 June 1985 until 29 June 1985 in the cells awaiting trial. The cell reserved for female prisoners is not intended for use on a long-term basis and is small and dark.

N1>(2)      Mintinganu Ysasa, the third plaintiff — she stated that she was from Markham, Morobe Province and that she had been convicted and sentenced to two years and six months imprisonment with light labour with a recommendation that she have frequent visits from her child. At the time she was convicted her male child was only a few months old and she was pregnant at the time. She further stated that she was first incarcerated at Buimo Corrective Institution, Lae but about December 1984 was transferred to Bundaira. That Bundaira was a long way from her home and that her family live in Morobe nearer to Lae and that since she had been transferred to Bundaira she had not seen her first child or her relatives.

N1>(3)      Marea Kumun — she stated that she lived in Lae and that her father, brothers and sisters lived in Lae. She said that she was committed for trial in February 1985 in the National Court on a charge of wounding. She was allowed bail at K100 but as she could not raise the bail she had to remain in custody. She was transferred to Bundaira Corrective Institution. On 8 June 1985 she was brought to Lae to await trial before the National Court and put in the police cells at Lae Police Station with other remandees including the first two named plaintiffs. The cell at Lae was very small, had no natural light or air and was full of mosquitos. No sleeping mats or blankets were provided and they had to sleep on the cement. Later four more female remandees awaiting trial were placed in the cell. They were only allowed to come out of the cell each morning for half an hour. She said that as a result she became sick and was taken to Angau Hospital for treatment. She was still feeling sick and was taken to Kainantu Haus Sick for further treatment. She said that her relatives cannot come to see her at Bundaira as it is a long way from the Highlands Highway and also from Lae.

N1>(4)      Teresa Ann Doherty — she stated she is the lawyer for the applicants and that on 3 July 1985 she went to Bundaira Corrective Institution to visit the plaintiffs and other detainees. She stated that Kainantu is 212 km from Lae and the Corrective Institution is 7.7 km from the main road. She further stated that persons wishing to travel to Kainantu by public transport from areas in Morobe must first come to Lae and then take a bus from Lae to Kainantu and that there is no public transport from Kainantu to the Corrective Institution at Bundaira. She stated that she received instructions from twelve female Morobe detainees, that all instructed her that they had been detained at Bundaira and had no visitors since they were sent there. She was informed that many detainees from Highland Provinces are also detained at Bundaira and are very far from their relatives. She had examined the files of each of the three plaintiffs and there was no, endorsement on any of those files stating that any of those persons were transferred to Bundaira Corrective Institution for reasons of security or any other cause.

N1>(5)      Ana Komidese — the first-named plaintiff stated that she lived in Wau with her brother, husband and child, that she had been committed to stand trial in the National Court in January 1985 and remanded in custody at Buimo Corrective Institution but instead was transferred to Bundaira and remained there until Saturday 8 June 1985 when she was transported to Lae. She stated that she was put in the police cells at the police station, Lae and remained there for two weeks before being brought back to Bundaira. She repeated the complaints in relation to the police cell at Lae made by the witness Marea Kumun (supra) and in addition states that the toilet was blocked and smelt very bad. She stated that as a result this had a bad effect on her health and that she felt feverish and sick while there. She stated that she had not seen her small child or any member of her family since she had been committed for trial and transferred to Bundaira.

N1>(6)      Robert John Everingham — he stated that he was a lawyer working at the Lae office of the Public Solicitors office. In the course of his duties he is required to attend on detainees, both remandees and convicted so as to take instructions pending bail applications, trials and appeals in both the District Court in Lae and the National Court when it is sitting in Lae. He stated that he had no practical access to female detainees who are held at the corrective institution of Bundaira at Kainantu. That it was too far for him to travel to Kainantu for instructions from the female prisoners held there and that it was not practical to obtain instructions through agents or by correspondence. He stated that as a consequence of these facts that he almost never saw a detained female defendant until the actual court hearing and that this was not conducive to the proper preparation of their defence and was a definite handicap to both the female defendant and the defending lawyer.

The first two plaintiffs, Ana Komidese and Ihuepu Amsakepena are detainees on remand awaiting trial. The third plaintiff, Mintinganu Ysasa is a convicted prisoner. As a result of a directive issued by the Commissioner of Correctional Services, the defendant, all three plaintiffs who, prior to their incarceration at Buimo Corrective Institution, Lae, had resided with their relatives in the Morobe Province, have been transferred to the Bundaira Corrective Institution, Kainantu in the Eastern Highlands Province.

The Constitution, s 37(20), provides as follows:

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

The undisputed evidence for the plaintiffs is that in each case there was no such endorsement on their file.

Counsel for the defendant concedes that in the case of the convicted plaintiff, Mintinganu Ysasa, the defendant’s conduct in transferring her to Bundaira Corrective Institution was in breach of her constitutional right under s 37(20) and consents to declarations in terms of par (1) and (2) (supra), but submits that the first and second plaintiffs are not entitled to any of the three declarations sought on the grounds that the Constitution, s 37(20), is a right restricted to convicted persons only and not to detainees on remand awaiting trial. The directive issued by the defendant on 20 August 1984 reads as follows:

“Provincial Gavman

Morobe

Headquarters

P O Box 6889

Boroko

Provincial Police Commander

Date: 20 August 1984

…

Ref: 7-1-5

Female Detainees:

Last year the Minister for CIS has declared Bundaira Corrective Institution for holding of female prisoners. The facilities at that institution are now set and ready to accept female prisoners from Highlands region as well as Morobe Province and later extend to Madang Province.

To effect the declaration CIS would need to close female detainees holding facilities at Buimo Institution (Lae), Barawagi Institution (Kundiawa), Baisu Institution (Mt Hagen), Laiagam Institution (Wabag), and Hawa Institution (Mendi).

The present female detainee facilities at these institutions will now be converted into holding of young juveniles.

The short-term prisoners from above institutions are to be detained at Bui/Iebi Institution (Southern Highlands) and Hibute Institution (Eastern Highlands). All long-termers are to be detained at Bundaira Institution (Eastern Highlands).

CIS will effect the Minister’s declaration by the end of September, 1984. By beginning of October, 1984 CIS will have no facilities to accept female prisoners at institutions indicated at paragraph two.

It is therefore requested that police in the affected provinces note the changes and take convicted female prisoners to Bui/Iebe Institution (Mendi), Hibute Institution (Goroka) and Bundaira Institution (Kainantu), only as from October, 1984.

p l kuabaal

Commissioner

CC Police Commissioner

CC All Supts in affected Institutions”

[My emphasis.]

The power to order the transfer of a detainee awaiting trial from one corrective institution to another on the facts relevant to this case is contained in the Corrective Institution Act (Ch No 63), either s 21 or s 24.

Section 21 reads as follows:

“Removal of Detainees for Trial etc

A detainee:

(a)      who is awaiting trial or sentence for an indictable offence; or

(b)      whose presence is required in or before a court or at an enquiry, examination or investigation to answer a charge, or as a witness or otherwise,

may, on the order of a judge or a court or the written direction of the Commissioner or a District Officer:

(c)      be removed from one corrective institution, police lock-up or rural lock-up to another corrective institution, police lock-up or rural lock-up; or

(d)      be brought to the court or place where his attendance is required at such time and place as is necessary.

The purpose of s 21 is to enable the detainee to be brought before the court. In relation to the first and second plaintiffs there is no evidence and it was not alleged by counsel for the defendant that there was any order or transfer made under s 21. The only legal basis then for authorising a transfer from Buimo Corrective Institution at Lae was the issue of a general directive by the defendant Commissioner under the Corrective Institutions Act, s 24, which, so far as relevant, reads as follows:

“Removal of detainees by executive order generally

N2>(1)      The Minister, the Commissioner or an officer of the public service authorised by the Commissioner for the purpose may, by written notice to the officer in charge of a corrective institution, police lock-up or rural lock-up direct the removal of all or any of the detainees confined in the corrective institution or lock-up to another corrective institution, police lock-up or rural lock-up.”

The definition of “detainee” covers both remandees and convicted persons, but an examination of the defendant’s directive dated 20 August 1984 (supra) indicates that it is directed only to convicted prisoners. The first and second plaintiffs could not be construed as “long-termers to be detained at Bundaira” as they are still awaiting trial and have not yet been convicted. The fact that the direction is to be limited to convicted prisoners is borne out by the concluding paragraph of the direction requesting the police to “take convicted female prisoners to Bui/Iebe ... Bundaira Institution. (Kainantu)” etc.

I therefore hold that there has been a violation of constitutional rights under the Constitution, s 37(1), which provides:

“Protection of the Law

N2>(1)      Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.”

That section was considered and applied by Bredmeyer J in University of Papua New Guinea v Ume More [1985] PNGLR 48. His Honour there said at 55 relating to s 37(1):

“That means that a person affected by a law has the right that the law be applied properly in relation to him and that officials appointed by law or under the law have the duty to act in accordance with the law.”

In this case the first and second plaintiffs and all other female detainees awaiting trial who have been transferred to Bundaira Corrective Institution, Kainantu or any of the other corrective institutions mentioned in the defendant’s directive of 20 August 1984 and whose transfer was as a result of that direction of 20 August 1984 and not because of any other order made under the Corrective Institutions Act, ss 21, 22, 23 or 24, and in addition any short-term convicted prisoners who have been transferred to Bundaira contrary to the direction that Bundaira is to be restricted to long-term prisoners, have suffered a violation of their constitutional rights under s 37(1) in that the defendant and the officials appointed by law under him have not acted in accordance with the law in effecting these transfers.

The same violation would apply to other detainees who have been transferred to other corrective institutions. For those detainees on remand awaiting trial the violation of constitutional rights does not end here. The Constitution, s 37(4), provides:

N2>“(4)    A person charged with an offence:

...

(c)      shall be given adequate time and facilities for the preparation of his defence; and

...

(e)      shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f)      shall be afforded facilities ... and to obtain the attendance and carry out the examination of witnesses.”

It is well-known that the public solicitor does not have the staff to provide legal assistance in both the Local Court and for most of the offences brought under the Summary Offences Act and similar Acts at the District Court level. The only way in which such an accused person can prepare his defence, such as notifying witnesses to attend at the hearing or obtaining legal representation or to raise money to be released on bail, is mainly through the assistance of her relatives or friends. The effect of transferring a female detainee awaiting trial away from her relatives is to deny her one of the main sources and facilities for preparing her defence and would therefore be in breach of the Constitution, s 37(4)(c) and (e), and in so far as it prevented her from obtaining the attendance of a witness at her trial it would be a breach of s 37(4)(f).

For those female detainees who are able to obtain legal assistance from the Public Solicitor’s office, the effect of transferring them away from where they are charged from Buimo Corrective Institution at Lae to the Bundaira Corrective Institution at Kainantu also leads to a violation of their constitutional right under s 37(4)(c) in not being “given adequate time and facilities for the preparation of their defence”. This is borne out by the affidavit of Robert John Everingham dated 18 July 1985 where he states in par 4, “I have no practical access to female detainees who are held at Bundaira Corrective Institution, Kainantu in the Eastern Highlands Province. It is too far for me to travel to Kainantu for instructions” and in par 5 “The consequences of the above mentioned facts is that I almost never see a detained female defendant until the actual court hearing. This situation is not conducive to properly run defence of the female prisoners and is a definite handicap for both female defendant and defending lawyer”. This difficulty of providing adequate representation for female detainees is not restricted to the District Court but as mentioned by Mr Everingham applies also in relation to trials and appeals in the National Court when sitting in Lae.

The rights of a detainee awaiting trial apart from being enshrined in the Constitution (supra) are supported by the common law. In “Unconvicted prisoners — Status at common law and by statute”, Halsbury’s Laws of England (4th ed, 1982), Vol 37, par 1245:

“An unconvicted prisoner is entitled at common law to all his personal rights not temporarily taken away by statutory provision or necessarily inconsistent with the circumstances in which he has been lawfully placed; in particular, he may claim immunity from punishment ... in the guise of infringement of his liberty not specifically warranted by law. ...”

The authority there referred to is R v Bryson (1848) 12 JP 585 where an unrepresented defendant claimed that he had been denied use of certain books required for conducting his own defence. The court held that a prisoner before his trial ought to be allowed to have any books which he might require. In Whittaker v Roos; Morant v Roos [1912] App D 92 at 121, 122-123 (SA) referred to in the reference to Halsbury (supra), it was held that a prisoner awaiting trial is entitled to access to his legal adviser at reasonable times.

Apart from the defendant’s transfer of remandees awaiting trial constituting a violation of their constitutional rights under the Constitution, s 37(4), the transfer would in the circumstances also amount to a denial of natural justice as required by the Constitution, s 59.

The circumstances wherein the first two plaintiffs were transferred from Bundaira Corrective Institution to the police lock-up cell at Lae from 8 June 1985 until 29 June 1985, a period of twenty-one days, would constitute a further breach of their constitutional rights under both s 37(1) and s 37(17) of the Constitution. Section 37(17) reads as follows:

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

There is nothing before the court to indicate whether this transfer was at the direction of the commissioner or one of his officers. If there was no such direction then there has been a breach of the Constitution, s 37(1). In addition, the confinement of the two first-named plaintiffs together with five other remandees in a small cell at the Lae lock-up in which there was no natural light or air, a blocked toilet, full of mosquitos, with no sleeping mats or blankets being provided and where they had to sleep on the cement and where they were only allowed to come out of the cell each morning for half an hour, was a failure to treat the two first-named plaintiffs and the other remandees “with humanity and with respect for the inherent dignity of the human person” and as such is a violation of their constitutional rights under s 37(17).

The final question is whether there has been a violation of the constitutional rights of the two first-named plaintiffs and the other remandees awaiting trial under the Constitution, s 37(20), which reads as follows:

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

Counsel for the defendant submits that “offender” means convicted persons. Counsel for the plaintiff submits that “offender” includes “suspected offender”.

By the Constitution, Sch 1.5:

N2>“(1)    Each Constitutional Law is intended to be read as a whole.

N2>(2)      All provisions of and all words, expressions and propositions in a Constitutional Law shall be given a fair and liberal meaning.”

In my view a fair and liberal meaning of the word “offender” is that it includes a “suspected offender”. This is supported by reading s 37 as a whole:

Section 37(1) provides that:

“Every person has the right to the full protection of the law and the succeeding provisions of this section are intended to ensure that the right is fully available, especially to persons in custody or charged with offences.”

So that, s 37(1), when read together with s 37(20), would include remandees as offenders. Secondly, other subsections to s 37 when referring to convicted persons used the words “convicted persons” and not the word “offender”. For example, s 37(15) provides, “Every person convicted of an offence is entitled etc” and again s 37(18), “Accused persons shall be segregated from convicted persons”. So the inference is that the word “offender” was intended to cover persons in addition to convicted persons.

Counsel for the defendant has drawn the Courts attention to the provisions of the Constitution, s 52(2), which provides that a citizen shall not be expelled or deported from the country except by virtue of an order of a court made under a law in respect of the extradition of “offenders or alleged offenders” against the law of some other place. But this section is dealing with the particular situation of the extradition of offenders where it is alleged that the person may have broken the law of some other place, but has not been charged with any offence under the laws of Papua New Guinea hence the expression “alleged offenders”.

The interpretation of “offender” as including “suspected offenders or remandees” is supported by the case of Barnard v Gorman [1941] 3 All ER 45. That case involved the construction of the word “offender” as used in the Customs Consolidations Act 1876 (Imp) and the words in the section there under consideration were, “and the offender may either be detained or proceeded against by summons”. Reading from the judgment of Viscount Simons LC at the foot of 47:

“The main issue, therefore, is whether the ‘offender’ in the phrase last quoted must be one who has actually committed the offence or whether, in its collocation, the word covers also a person who is believed on reasonable grounds to have committed an offence under the section when in fact he has not committed it.”

And continued at 48:

“Whether the ‘offender’ is guilty of the offence charged will only be determined at the hearing. The summons accuses him of an offence and it remains to be ascertained whether the accusation is justified. It is plain, therefore, that the ‘offender’ who may be summonsed must include an innocent person who is wrongfully suspected of having committed the offence.”

Again at 49:

“The fact is that the word ‘offender’ has both a narrower and a wider meaning. It may have the stricter meaning of one who is guilty of an offence, but it also sometimes has the meaning of a person who is under accusation of having committed an offence.”

In the judgment of Lord Tankerton at 54, again construing the interpretation to be placed upon the wording of a particular section of the Customs Consolidation Act 1876: “‘Offender’ thus means ‘suspected offender’. The charge may be dismissed. He cannot properly be called an offender in the strict sense until he is convicted.” In Wills v Bowley [1982] 3 WLR 10, a decision of the House of Lords, the opinion of Viscount Simon in Barnard v Gorman was quoted with approval by Lord Lowry in his judgment at 29-30. As in my view the word “offender” in s 37(20) clearly includes “suspected offenders or remandees”, there has been a violation of the constitutional rights of the first and second plaintiffs and other remandees under that section when they were transferred to an area away from that in which their relatives resided. In so far as it was argued that the defendant Commissioner’s direction of 20 August 1984 or any subsequent direction was authorised under the Corrective Institutions Act, s 24, then s 24 would be in conflict with s 37(20) of the Constitution and the Constitution would prevail.

In relation to “convicted” persons, it was stated during the course of the submissions by counsel for the plaintiffs that there was also an apparent conflict between the Corrective Institutions Act, s 16, and the Constitution, s 37(20).

The Corrective Institutions Act, s 16, provides as follows:

“A sentence of imprisonment shall, subject to this Act and any other law, be served in the corrective institution nearest to the place at which the sentence was imposed.”

There is no necessary conflict in this case. It would be possible for a person who resided with their relatives in one province to leave that province and go to another province and there commit an offence. In this situation it would be quite proper for the person to be incarcerated at the place at which the offence was committed. It is only, as in this case, where an offence is committed within one province and the defendant attempts to issue a direction transferring the remandee or convicted prisoner to a corrective institution in another province that s 37(20) comes into operation to prevent such transfer away from the area in which her relatives reside.

To sum up, in my view there has been a violation of the constitutional rights of each of the three plaintiffs and certain other remandees awaiting trial who have been transferred to Bundaira Corrective Institution as a result of the directive issued by the defendant Commissioner on 20 August 1984. The plaintiffs seek to enforce their constitutional rights and rely on the Constitution, s 57, “Enforcement of Guaranteed Rights and Freedoms”, which reads as follows:

“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 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 to fully and freely exercise his rights under this Section by a person acting on his behalf, whether or not by his authority.”

...

“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.”

It is proposed to make certain declarations and it is recommended that these declarations having been made that the defendant Commissioner will take the appropriate steps so as to ensure the cessation of the violation of the constitutional rights of the plaintiffs, any other remandees awaiting trial and any female convicted persons and that no new remandees or convicted persons have their constitutional rights violated by being transferred away from the area in which their relatives reside. I will grant leave for either party to apply for further order.

I make the following declarations:

N1>(1)      That the plaintiffs herein are entitled by virtue of the Constitution of the Independent State of Papua New Guinea, s 37(20), to be incarcerated in a corrective institution nearest to their relatives and that such institution is at Buimo Corrective Institution, Lae.

N1>(2)      That a certain directive made by the defendant herein on 20 August 1984 whereby he ordered that: “the short-term prisoners from Buimo Institution (Lae), Barawagi Institution (Kundiawa), Baisu Institution (Mt Hagen), Laiagan Institution (Wabag) and Hawa Institution (Mendi) were to be detained at Bui/Iebe Institution (Southern Highlands) and Bibute Institution (Eastern Highlands). That all long-termers were to be detained at Bundaira Institution (Eastern Highlands)” is void and of no effect except in relation to offenders who have been transferred for security or other good cause and have such reason endorsed on their file and except where the detention at Bundaira Institution or any of the other corrective institutions would not constitute a violation of any prisoners constitutional rights under the Constitution, s 37(20).

N1>(3)      That the transfer of all female detainees on remand awaiting trial from one of the above-mentioned corrective institutions in par (1) to another of the corrective institutions or lock-ups in purported compliance with the above-mentioned directive made by the defendant herein is void and of no effect except in relation to offenders who have been transferred for security or other good cause and have such reason endorsed on their file, being in breach of the said detainees’ constitutional rights under the Constitution, s 37(1), the said transfer having been made without any valid legal direction and being also in violation of the said female detainees’ constitutional rights under the Constitution, s 37(4)(c), (e) and (f), and not in accordance with the principles of natural justice, the said detainees having in effect been denied facilities for preparing their defence.

N1>(4)      That the incarceration of the first two plaintiffs and five other female detainees between 8 June and 29 June 1985 in the police lock-up cell at Lae was a violation of their constitutional rights under the Constitution, s 37(17), in that they were not treated with humanity and with respect for the inherent dignity of the human person.

It is recommended that:

N1>(1)      The defendant cease forthwith the above-mentioned violation of the female detainees constitutional rights,

N1>(2)      that he immediately provide facilities for female detainees to be detained at those corrective institutions which are nearest to where their relatives reside, in proper conditions with due respect to the inherent dignity of their human persons except as provided by the Constitution or the Corrective Institutions Act,

N1>(3)      and that he take immediate steps to ensure that no further female detainees are transferred in violation of their constitutional rights. I grant liberty to either party to apply for further order.

Declarations and orders accordingly

Lawyer for the plaintiffs: T A Doherty, Morobe Provincial Government.

Lawyer for the defendant: T Konilio, Principal Legal Adviser, Department of Justice.