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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 26 0F 2002, CR NO 1064 OF 2004,
CR NO 1071 OF 2004 AND CR NO 1077 OF 2004
IN THE MATTER OF APPLICATIONS
BY JOHN RITSI KUTETOA, GEORGE TAUNDE,
TITUS SOUMI AND ANDREW AMID
BUKA: CANNINGS J
21, 23 MARCH 2005
RULING ON APPLICATION
CONSTITUTIONAL LAW – basic rights – application for enforcement of basic rights – applicants convicted in separate proceedings of various offences under Division IV.2A of the Criminal Code (sexual offences against children) – detained in Buka police lock-up, Bougainville –osal that each prisoprisoner be transferred to Kerevat correctional institution, East New Britain – applicants request to remain in Buka, close to relatives – Police Force and Corrnal Service oppose request uest and intend to transfer prisoners to Kerevat as soon as practicable – Constitution, Section 57, enforcement of guaranteed rights and freedoms – Constitution, Section 37(1), right to the full protection of the law – Constitution, Section 37(20), right of offender not to be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause – whether reasonable probability of infringement of constitutional rights – onus of proof – elements of the right – court entitled to determine whether elements present – meaning of "reasons of security" warranting transfer of offenders – meaning of "other good cause" – orders made under Constitution, Sections 57(1) and 57(3) – applicants not to be transferred for at least six months – comments on conditions at Buka police lock-up – recommendation made re need for proper correctional facility for Bougainville, as a matter of urgency – orders.
Cases cited:
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
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 Andrew Amid CR 1077/2004, 23.02.05, unreported
The State v Bafe Quati and Others [1990] PNGLR 57
The State v George Taunde (2005) N2807
The State v John Ritsi Kutetoa (2005) N2814
The State v Titus Soumi (2005) N2809
Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87
Counsel:
L Siminji for the applicants
L Rangan for the State
CANNINGS J:
INTRODUCTION
This is a ruling on applications for enforcement of constitutional rights by four convicted prisoners who are seeking orders that they not be transferred away from the area in which their relatives reside. They are presently detained at the Buka police lock-up. The Police Force and the Correctional Service are making plans for their transfer to the Kerevat Gaol, East New Britain, and oppose these applications. The applicants argue that they have a right to be imprisoned close to where their relatives reside and that their forced transfer to Kerevat will breach that right.
The term ‘constitutional rights’ refers 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, which is referred to in this judgment as ‘the Constitution’ or ‘the National Constitution’, to distinguish it from the Constitution of the Autonomous Region of Bougainville or ‘the Bougainville Constitution’.
BACKGROUND
These matters came to light during an inspection I made of the police lock-up during the National Court circuit in Buka earlier this month. I inspected it using my powers as a Judge under Sections 144, 145 and 148 of the Correctional Service Act. The conditions under which about 50 detainees are being kept appears to breach many constitutional rights. The place is overcrowded and unhygienic. Despite the poor conditions, I was informed that the general consensus amongst the detainees, most of whom are Bougainvilleans, is that they do not want to be transferred to Kerevat or anywhere else. They want to stay close to their relatives. I told them that they should consult their lawyer, who could consider the possibility of making an application to the National Court to address this issue.
It is in that context that the present applications are made.
FACTS
The applicants are presently detained in the Buka police lock-up as there is no correctional institution operating on Bougainville, the previous one being destroyed during the Bougainville conflict.
The first applicant, John Ritsi Kutetoa, is a 42-year old married man, convicted in March 2005 by the National Court (Cannings J) of one count of engaging in an act of sexual penetration with a child under the age of 16 years, at a time when there was an existing relationship of trust, contrary to Section 229A(1) of the Criminal Code. The offence was committed at Hanahan, Buka Island, Bougainville, in April 2002. He was sentenced to 17 years imprisonment. (See The State v John Ritsi Kutetoa (2005) N2814.)
The second applicant, George Taunde, is a 34-year old married man, convicted in March 2005 by the National Court (Cannings J) of one count of engaging in an act of sexual penetration with a child under the age of 16 years, at a time when there was an existing relationship of trust, contrary to Section 229A(1) of the Criminal Code. The offence was committed at Hahon, West Coast, Bougainville, in March 2004. He was sentenced to 10 years imprisonment. (See The State v George Taunde (2005) N2807.)
The third applicant, Titus Soumi, is a 31-year old married man, convicted in March 2005 by the National Court (Cannings J) of two counts of engaging in an act of sexual penetration with a child under the age of 16 years, at a time when there was an existing relationship of trust, contrary to Section 229A(1) of the Criminal Code. The offences were committed at Barikua, Bougainville, in December 2003 and March 2004. He was sentenced to two years imprisonment. (See The State v Titus Soumi (2005) N2809.)
The fourth applicant, Andrew Amid, is a 38-year old married man, convicted in February 2005 by the National Court (Lay J) of two counts of sexual touching of a child between the ages of 16 and 18 years, with whom he had an existing relationship of trust, contrary to Section 229E(1) of the Criminal Code. The offences were committed at Malasang, Buka Island, Bougainville, in December 2003 and May 2004. He was sentenced to three years imprisonment. (See The State v Andrew Amid CR 1077/2004, 23.02.05, unreported.)
The first three applicants are ethnically Bougainvillean. The fourth applicant is ethnically Sepik. He is from the Lumi District of West Sepik Province. He is married to a Bougainvillean woman and has lived on Bougainville for 15 years.
It is useful to have regard to the definition of "Bougainvillean" in the Bougainville Constitution. Section 7(1) states:
A person –
(a) who is a member (whether by birth or by adoption according to custom by the clan lineage) of a Bougainvillean clan lineage (matrilineal or patrilineal) owing customary land in Bougainville; or
(b) who is married (whether by law or custom) to a person to whom Paragraph (a) applies; or
(c) who is a child one of whose parents is a Bougainvillean by virtue of Paragraph (a);
is a Bougainvillean.
The first, second and third applicants will be regarded as Bougainvilleans under Section 7(1)(a). The fourth applicant will be a Bougainvillean under Section 7(1)(b). These are observations to help set out the facts of this case, the most important of which is that many relatives of each of the applicants reside on Bougainville. That much was conceded by the State, which opposed the applications.
EVIDENCE CONSIDERED BY THE COURT
Mr Rangan, for the State, presented two witnesses. Carolyn Ipo is the Officer in Charge of the Criminal Investigations Division of the Police Force for Bougainville. She confirmed that Bougainville does not have a proper correctional institution. Nor does it have a functional rural lock-up. There was one operating at Hutjena but it was condemned by the health authorities two years ago. All remandees and prisoners are being housed in the police cells at Buka. New cells were built a year ago to house juvenile and female detainees. But they have since been occupied by the remandees and prisoners. Juveniles and females are being detained elsewhere. Females are kept at the female quarters at Hutjena police barracks. Juveniles are looked after by the Provincial Welfare Officer. There is an overcrowding problem at the police lock-up, which is not the right place to hold remandees or prisoners. There are no facilities for rehabilitation.
Victor Tousala is an officer of the Correctional Service based in Buka. He stated that the Correctional Service is aware of the desire of the prisoners to serve their sentences in Buka. But the best thing is that they be repatriated to Kerevat. There are no proper correctional facilities on Bougainville. The Buka police lock-up is overcrowded and this is creating a health problem. Once a proper facility is built on Bougainville, the Bougainvillean prisoners could be returned from Kerevat. He could not say when a correctional institution would be built. There is no problem with discipline in the Buka police lock-up. All detainees are well behaved, particularly the first and fourth applicants, who have been detained there for some time.
SUBMISSIONS FOR THE APPLICANTS
Mr Siminji submitted that the applicants’ rights under Section 37(20) of the National Constitution not to be transferred away from the area where their relatives reside would be breached if they were transferred to Kerevat. The applicants are mindful of the unsatisfactory conditions at the Buka police lock-up. However they are more prepared to cope with the overcrowding than being transferred to East New Britain, which is not their place. Section 37(20) is in mandatory terms.
Therefore the court has power to make orders under Section 57 of the Constitution for the enforcement of those rights.
SUBMISSIONS FOR THE STATE
Mr Rangan stated that the State strongly objected to the applications. He took issue with the simplistic interpretation of Section 37(20) advanced by Mr Siminji. At first glance Section 37(20) is in mandatory terms as it states that an offender "shall not" be transferred to an area away from that in which his relatives reside. However, it is subject to two qualifications: for reasons of security or for other good cause. The State relies on the second one.
There are no prison facilities on Bougainville. Remandees and prisoners are being detained together. The conditions are very overcrowded and unhygienic and may give rise to claims for enforcement of constitutional rights. The court should therefore not grant the orders sought.
MAJOR ISSUES
As I pointed out in another case dealt with in the current Buka circuit, Application by Benetius Gehasa (2005) N2817, an application of this nature gives rise to two major issues:
THE LAW
Overview
There are three sets of laws that have a direct bearing on the determination of this application:
Constitutional rights
Section 36(1) (freedom from inhuman treatment) states:
No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.
Section 37(1) (protection of the law) states:
Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
Section 37(17) (protection of the law) states:
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Section 37(18) (protection of the law) states:
Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.
Section 37(19) (protection of the law) states:
Persons under voting age who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age.
Section 37(20) (protection of the law) states:
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.
All of these rights – including the right conferred by Section 37(20) – were the subject of specific recommendations of the Constitutional Planning Committee. (See Final Report of the Constitutional Planning Committee, Chapter 5, paragraphs 44, 48, 50, recommendation No 6.) That report is an aid to interpretation, which I use in accordance with Section 24(1) of the Constitution.
Enforcement of rights
Section 57 (enforcement of guaranteed rights and freedoms) states:
(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.
(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.
Correctional Service Act and Regulation
Division VIII.5 (movement and transfer of detainees), consisting of Sections 95 to 102, regulates the transfer of detainees.
Section 96 (power to transfer detainees) states:
The Commissioner may, by instrument in the prescribed form, authorize the transfer of a detainee or a class of detainees—
(a) from one institution to another; or
(b) from place to place within an institution.
Division IV.1 (status) of the Correctional Service Regulation 1995, consisting of Sections 58 to 67, also addresses the issue of transfers.
Section 62 (separation and transfers committee) states:
(1) The Commissioner shall establish a Separation and Transfers Committee to make recommendations to the Commissioner with respect to the transfer of or separation of a detainee.
(2) The Separation and Transfers Committee shall consist of an Assistant Commissioner and any four of the following:—
(a) a member of the Welfare division;
(b) a chaplain;
(c) a correctional officer;
(d) a security correctional officer;
(e) an industrial correctional officer.
There is no provision in the Act or the Regulation equivalent to Section 16 of the repealed Corrective Institutions Act Chapter No 63, which stated that a sentence of imprisonment shall be served in the corrective institution nearest to the place at which the sentence was imposed.
WILL THE APPLICANTS’ RIGHTS BE INFRINGED?
Section 37(20)
The applications are based on Section 37(20) of the Constitution. There is no doubt that it confers a right on an offender: the right not to be transferred to an area away from that in which his relatives reside. But it is not an absolute right. There are two exceptions. An offender can be transferred away from his relatives’ area of residence in two situations:
In this case the State does not rely on security reasons for wanting to transfer the applicants to Kerevat, but on ‘other good causes’: the lack of correctional facilities on Bougainville; overcrowding at the Buka police lock-up; the unhygienic conditions; or the risk that other detainees might sue the State for breach of their constitutional rights.
Questions of interpretation and application
The Constitution does not indicate who, if anyone, has the onus of establishing these matters. Do the applicants have to prove that there is no good cause for them to be transferred? Does the State have to prove that there is good cause? If somebody does bear an onus of proof what is the standard of proof that applies?
Should questions be referred to the Supreme Court?
I have considered whether these questions, and others, should be referred to the Supreme Court for determination under Section 18(2) of the Constitution.
There appears to have been only one previous case on Section 37(20): Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212, National Court, Cory J. The Commissioner of Correctional Services directed that one convicted female prisoner and two female remandees from Baisu correctional institution, near Lae, Morobe Province, be transferred to Bundaira correctional institution, near Kainantu, Eastern Highlands Province. The three detainees, all from Morobe Province, brought proceedings in the National Court against the Commissioner, seeking enforcement of their rights under Section 37(20) not to be transferred to an area away from that in which their relatives reside. Cory J held that the fair and liberal meaning of the word "offender" in Section 37(20) included remandees as well as convicted prisoners. The right of all the applicants, including the remandees, not to be transferred away from their relatives was violated. The court declared that the Commissioner’s direction was void and of no effect except in relation to offenders who have been transferred for security reasons or other good cause.
It was not necessary for the court in that case to determine what "good cause" means or who has the onus of proving or disproving it. So it is not of great assistance in resolving the issues outlined above. It is, however, a useful example of how Section 37(20) can be invoked.
The case also helps me determine that it is not necessary or appropriate to refer the questions outlined above to the Supreme Court. Section 57 of the Constitution authorises the National Court, as well as the Supreme Court, to protect and enforce the constitutional rights of many classes of individuals, particularly those being detained in relation to suspected or proven commission of criminal offences. Applications for enforcement of rights will often need to be dealt with quickly. If there is a delay, such as would be caused by referring questions to the Supreme Court, the purpose of hearing such applications will often be defeated. So I have decided not to refer the questions to the Supreme Court in the circumstances of this case. I will determine them now.
Onus of proof
As to the onus of proof, I consider that it does not rest on either the person seeking to enforce his or her rights or the person (in this case the State) denying the existence of the right or resisting its enforcement. I say that for two reasons. First, there is, as noted earlier, nothing in the Constitution that talks generally about onus of proof in these sorts of proceedings. The exception is Section 41 (proscribed acts) which states that the burden of showing that an act is harsh or oppressive or otherwise unlawful, under Section 41, is on the party alleging it and may be discharged on the balance of probabilities. Secondly, Section 57 authorises the court to act on its own initiative to protect and enforce constitutional rights, thus empowering the court to conduct its own inquiry into apparent or suspected infringement of rights and to make all necessary or appropriate orders. It is contemplated that the court will conduct inquisitorial, as distinct from adversarial, proceedings. So imposing an onus of proof on a particular party is inappropriate.
Standard of proof
As to the standard of proof, I consider that the court needs to be reasonably satisfied that a person’s rights have been or will be infringed; and if it is so satisfied, that is when the question of the exercise of discretion to protect or enforce the right will arise.
Reasonable satisfaction of infringement of rights
With those principles in mind, I turn back to the present case and pose this question: am I reasonably satisfied that, if the Police and Correctional Service proceed with the plan to transfer the four applicants to Kerevat, the rights of the applicants under Section 37(20) will be infringed?
Transfer away from relatives
I am reasonably satisfied that if the plan is carried out, they will be transferred to an area (East New Britain) away from that in which their relatives reside (Bougainville). I am so satisfied in the case of each applicant, including the fourth applicant, who hails from West Sepik Province but who has a number of relatives residing on Bougainville.
Security
I am also reasonably satisfied that the Police and the Correctional Service do not want to transfer them for security reasons. Mr Rangan conceded that. It was confirmed by Mr Tousala’s evidence. Despite the poor conditions in the police lock-up, the detainees are well behaved. This is a remarkable achievement and a credit to the detainees, including the first and fourth applicants who have been detained there for substantial periods.
Good cause
This leaves the remaining consideration. Am I reasonably satisfied that for other good cause (or reason) it is proposed to transfer the applicants to Kerevat? This is where the evidence of Ms Ipo and Mr Tousala is significant. They have each highlighted the overcrowding of the Buka police lock-up and the unhygienic conditions. These are valid concerns. There is no dispute about that. Nobody has suggested that the Police and the Correctional Service are acting for any dishonest or ulterior motive. I am satisfied that they are acting in good faith. The conditions at the Buka police lock-up are most unsatisfactory. But those are not the only considerations the court should take into account in determining whether there is, for the purposes of Section 37(20), "good cause" for transferring them. I need to consider the wider implications of a transfer. As indicated earlier, when I visited the lock-up, the detainees interviewed clearly gave the impression that the consensus amongst the detainees is that their earnest and strong wish is not to be transferred. That is a matter of fact that I take into account. If I were to refuse the current applications and the applicants were transferred to Kerevat, I expect that there would be a lesser degree of co-operation with the authorities shown by the detainees and also by the significant number of detainees who have escaped from custody in the last year or so and who are presently at large. They will be less likely to co-operate if they anticipate that upon conviction they will be transferred out of Bougainville.
Another thing I need to consider is whether the applicants would be imprisoned in satisfactory conditions if they were transferred to Kerevat. Is there space for them at Kerevat? Are the standards of hygiene significantly higher there? In the absence of evidence of such things, I am not prepared to presume that either question should be answered in the affirmative.
In the end, I am not reasonably satisfied that there exists good cause for planning to transfer the applicants to Kerevat.
Conclusion as to infringement
I conclude that if the plan were to go ahead the rights of the applicants under Section 37(20) of the Constitution would be infringed.
SHOULD AN ORDER BE MADE FOR THE NON-TRANSFER OF THE APPLICANTS?
Source of power
I now consider whether I should order that the applicants not be transferred to Kerevat. The court’s power to make such an order comes from Section 57 of the Constitution, in particular 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, Saldanha 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 Gehasa’s case 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 42(5) (liberty of the person).
Relevant considerations
The Court’s power to make an order under Section 57 for the non-transfer of the applicants is discretionary. The matters I consider should be taken into account when deciding whether to exercise the discretion in their favour are:
I have framed those questions so that an affirmative (yes) answer will weigh in favour of exercising the discretion to make an order for non-transfer. A negative (no) answer weighs against making such an order. It is a matter then of weighing the considerations against each other. I answer the questions as follows:
Weighing all those considerations together, I consider that it is necessary and appropriate for the protection and enforcement of the applicants’ constitutional rights that they be not transferred to Kerevat.
Conclusion re non-transfer of the applicants
The court will order pursuant to Sections 57(1) and 57(3) of the Constitution that the applicants not be transferred to Kerevat correctional institution. Conditions will, however, be imposed and will be flexible enough to take account of changed circumstances.
REMARKS
Conflicting interests
This has been a difficult case to adjudicate on, involving the balancing of legitimate, conflicting interests. On the one hand the Police and the Correctional Service have presented valid reasons for wanting to transfer the applicants to Kerevat. On the other hand the applicants genuinely want to be imprisoned on Bougainville, near to where their relatives reside, and nowhere else. I have come to the conclusion that the desires – indeed rights – of the prisoners should be respected and enforced. This is a ‘thin line’ case, considered on its merits, which should not be used to support an argument that any prisoner anywhere in the country has the unqualified right to be imprisoned at a place of his or her choice.
A need for urgent action
However, there is an argument that this case should be used to support: that Bougainville requires a purpose-built, clean, hygienic and functional correctional facility. This is an urgent infrastructural priority.
As well as being a very practical step to address an immediate practical problem, it would seem to be an important symbolic act, part of the rebuilding and reconciliation process and reinforcing the fact that law and order and normalcy is being returned to Bougainville.
Having inspected the police lock-up last week, it is apparent that a number of constitutional rights of detainees are being infringed. The place is badly overcrowded. Some of the toilets do not work. The place smells. There is little natural light. There is next to no space in which detainees can walk or exercise. Sleeping quarters are virtually non-existent. They evidently sleep on flattened out cardboard containers on the concrete floors, jammed into their cells and in corridors. There is a strong argument to say that:
The fact that the conditions are so appalling made the present case even more unusual. How could it be that four individuals desire to be imprisoned in such conditions, rather than being transferred? As stated earlier the court was satisfied that that desire was genuine, and that in the circumstances of this case it is a right that needs to be enforced.
The failure to build a proper correctional facility should not be used as an excuse for denial of constitutional rights.
Recommendation
In the meantime, I will do what Cory J did in Komidese’s case 20 years ago, and make a formal recommendation under Section 57(3) of the Constitution, aimed at protecting and enforcing constitutional rights. The recommendation is addressed to:
The recommendation is:
ORDER
The order of the National Court is that:
___________________________________________________________________
Lawyer for the applicants : Public Solicitor
Lawyer for the State : Public Prosecutor
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