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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP NO 813 0F 2006
IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER
THE CONSTITUTION OF THE INDEPENDENT STATE OF
PAPUA NEW GUINEA, SECTION 57
RE CONDITIONS OF DETENTION AT LAKIEMATA CORRECTIONAL INSTITUTION
APPLICATION BY JOHN BOSCO, KORAK MEKORE,
THOMAS MADI, DANIEL WALUS, JACKY VUTNAMUR,
FRANCIS SALI AND ANDREW ULO FOR AND ON BEHALF OF ALL DETAINEES
Kimbe: Cannings J
2006: 13 October, 18, 22 December,
2007: 6, 16 February
HUMAN RIGHTS – conditions of detention for detainees – prisoners and remandees – jail – need for conditions of detention to comply with constitutional requirements.
CONTEMPT OF COURT – categories of contempt – the disobedience contempt –discretion whether to lay charges – use of "no funds" as excuse – power of National Court to make orders to make funds available to give effect to court orders for enforcement of human rights.
The National Court made orders to fix serious problems with the quality of the water supplied to a jail, which had led to the deaths of at least two detainees, and to improve health and hygiene protocols in the jail. The orders were directed to (a) at the Managing Director of PNG Waterboard and the local Branch Manager of PNG Waterboard; (b) the Commissioner of the Correctional Service and the Jail Commander; and (c) the Provincial Health Adviser. Time limits were imposed on each office-holder made the subject of the orders. Those in category (a) complied with the orders; whereas those in categories (b) and (c) did not and were asked to show cause why they ought not be charged with contempt of court. This is a ruling on whether they should be so charged.
Held:
(1) Failure to comply with the orders of any court in the National Judicial System, particularly the National Court or the Supreme Court, is a serious matter, which can lead to a charge of contempt of court.
(2) Contempt of court is a criminal offence, conviction for which can result in criminal sanctions, including a jail term or a fine.
(3) A Judge can on his or her own initiative charge a person who has failed to comply with a court order and need not wait for a party to the proceedings to initiate a charge.
(4) When deciding whether to lay a charge of contempt a Judge should consider: (a) the extent of non-compliance with the court's orders; (b) whether non-compliance appears to be manifestation of a deliberate snubbing of or disrespect for the court; (c) whether the purpose of making the orders might be defeated by laying a charge; and (d) whether the persons in whose favour the orders were made have applied or agitated for the laying of charges.
(5) In the present case: (a) the extent of non-compliance with the court's orders is significant; (b) non-compliance is more a product of inefficiency and incompetence than a deliberate snubbing of or disrespect for the court; (c) the purpose of making the orders might be defeated by laying a charge; and (d) the persons in whose favour the orders were made have not applied or agitated strongly for the laying of charges.
(6) Having weighed those considerations, the court ruled that it would not charge anybody with contempt, but rather keep the question of compliance with the court's orders under continuing review and consider making further orders to enforce the human rights of the applicants.
Cases cited
The following cases are cited in the judgment:
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Lakiemata Correctional Institution
MP No 813 of 2006, 09.10.06
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06
Peter Luga v Richard Sikani and The State (2002) N2285
Peter Luga v Richard Sikani and The State (2002) N2286
Richard Sikani v The State and Peter Luga (2003) SC807
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303
Yap v Tan [1987] PNGLR 227
RULING
This is a ruling on whether persons who have not complied with court orders should be charged with contempt of court.
Counsel
O Oiveka, for the applicants
F Popeu, for the State
A Walne, for the Managing Director and Branch Manager of PNG Waterboard
C Wainge, for the Commissioner of the Correctional Service and the Jail Commander
A Amet, for the Provincial Health Adviser
16 February, 2007
1. CANNINGS J: This is a ruling on whether a number of public office-holders should be charged with contempt of court for failing to comply with orders of the National Court. I made the orders in response to an application for enforcement of human rights by seven detainees of Lakiemata Correctional Institution ("the applicants"). Two detainees, Michael Tavure Vele and Augustine Ailolo, had died of dysentery in the second half of 2006.
2. After hearing evidence in a special court hearing in Kimbe on 6 October 2006 I concluded that the water coming into Lakiemata Jail from the nearby Ru River was heavily polluted and not safe to drink or cook with. Bacterial levels were alarmingly high, showing heavy contamination of the water with faeces. The poor water quality had led to an outbreak of dysentery, many detainees had to be treated in hospital and two had died. The ablution blocks were in a bad state of disrepair, messing facilities were inadequate and this has increased the risk of diarrhoeal/dysenteric illnesses, especially when food handlers were infected. I concluded that the general level of health and hygiene in the jail was unacceptably low and this appeared to provide an environment ripe for an endemic of diarrhoeal disease, including cholera. The human rights of the applicants and other detainees were being breached, in that they were:
3. I made orders under Sections 57(1), (3) and (5) (enforcement of guaranteed rights and freedoms) of the Constitution to enforce the rights of the applicants and all Lakiemata detainees. (In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Lakiemata Correctional Institution MP No 813 of 2006, 09.10.06.) Earlier in 2006 I made similar sorts of orders regarding the conditions of detention at Bialla and Kimbe police lock-ups. Those orders have been complied with. (In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Bialla Police Lock-up (2006) N3022; In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Kimbe Police Lock-up, MP No 624 of 2006, 30.06.06.)
THE ORDERS OF 9 OCTOBER 2006
4. The orders were directed to:
(a) the Managing Director of PNG Waterboard and the local Branch Manager of PNG Waterboard;
(b) the Commissioner of the Correctional Service and the Jail Commander; and
(c) the Provincial Health Adviser.
5. The orders stated:
(a) the Branch Manager of the PNG Waterboard at Kimbe;
(b) the Jail Commander of Lakiemata Jail;
(c) the WNB Provincial Health Adviser; and
(d) the applicants.
DECEMBER 2006 TO FEBRUARY 2007
6. On 18 December 2006 I conducted another court hearing to ascertain whether the orders of 9 October 2006 had been complied with. I declared that I was satisfied that the office-holders in category (a) had substantially complied with the orders; whereas those in categories (b) and (c) had not. The matter was adjourned and those in categories (b) and (c) were directed to show cause why they ought not be charged with contempt of court. They were legally represented for that purpose in a hearing on 6 February 2007. In the meantime I have visited the jail in October and December 2006 and February 2007 to inspect the work that has been done in response to the court orders. I will now determine the extent of compliance with the orders by each of the three categories of office-holders.
MANAGING DIRECTOR, PNG WATERBOARD AND KIMBE BRANCH MANAGER, PNG WATERBOARD
7. These officers to their credit have very substantially complied with the court orders. The water quality has significantly improved due to the efforts of the Branch Manager and his staff. PNG Waterboard is to be commended for taking the court's orders very seriously even though the provision of water to the jail does not lie within its statutory responsibility. The water quality has recently been raised to an acceptable standard.
COMMISSIONER OF THE CORRECTIONAL SERVICE AND THE JAIL COMMANDER
8. These officers have still not complied fully with the court orders. They were ordered to fully implement the plan of action set out in order No 4 by 9 December. More than two months later, not everything has been done as shown in the table below.
EXTENT OF COMPLIANCE WITH NATIONAL COURT ORDER NO 4
| No | Required | Done? | Comments |
| A | cleaning out both ablution blocks thoroughly | Yes | Satisfactory |
| B | making both ablution blocks fully operational, including all showers and toilets | Yes | Very satisfactory – both blocks have been refurbished and made fully operational, after a contractor was engaged |
| C | open drains conveying excess sullage water to be covered and disposed of into a proper absorption pit | Yes | Satisfactory |
| D | new 2,000 gallon water tank to be installed in the Jail | Yes | Very satisfactory – one tank already installed and another two (exceeding the court's requirements) are about to be made operational |
| E | beds and blankets to be supplied to all detainees | No | Half done only, but a considerable improvement on previous conditions |
| F | each detainee to be supplied with a permanently treated mosquito net | No | Half done only – nets remain untreated |
| G | all cell blocks to be fly-screened | No | 20% done only |
| H | messing facilities to be improved by providing tables and seats for use by detainees | No | 50% done only |
| I | monthly health forums involving the Jail management, the Provincial Health Office, Kimbe General Hospital, the PNG Waterboard and
detainee representatives | No | Poor compliance – only one forum has been held, in November 2006 |
PROVINCIAL HEALTH ADVISER
9. This officer was subject to order Nos 4(i) (monthly health forums), 6 (weekly water quality monitoring) and 7 (inspection of work done other orders). After an initial failure to appreciate the importance of the orders and perhaps some ignorance of the consequences of non-compliance he has significantly improved his level of compliance. In the visit I made to the jail last week some new problem surrounding a blocked toilet in the Minimum Security Unit compound came to light, and the Provincial Health Adviser gave an undertaking that he would take the lead role in fixing it. He is to be commended for that – if, of course, he lives up to his undertaking.
THE OFFENCE OF CONTEMPT OF COURT
10. One of the leading cases on contempt of court ironically concerns one of the persons I have to consider charging in these proceedings, the Commissioner of the Correctional Service, Mr Richard Sikani. The case is Peter Luga v Richard Sikani and The State (2002) N2285. Mr Sikani was convicted by Sakora J in the National Court of contempt for failing to comply with a court order that the applicant, Peter Luga, be reinstated as an officer of the Correctional Service. Sakora J sentenced Mr Sikani to six months imprisonment (Peter Luga v Richard Sikani and The State (2002) N2286). However, the conviction and sentence were later quashed by a 2:1 majority decision of the Supreme Court (Richard Sikani v The State and Peter Luga (2003) SC807, Amet CJ and Los J; Sevua J dissenting). The guilty verdict was set aside because the majority of the Supreme Court considered that there was insufficient evidence of the contemnor, Mr Sikani, refusing to comply or avoiding compliance with the court's orders. The majority felt that the trial judge had paid insufficient attention to the delays Mr Sikani would have experienced in following bureaucratic procedures and financial controls before he was in a position to reinstate Mr Luga. Sevua J's dissenting judgment was strong indeed and I consider his Honour's reasoning powerful and persuasive. He highlighted the importance to the rule of law of compliance with court orders. His Honour felt the majority's approach was too soft and would result in a travesty of justice. Sevua J's dissenting judgment reinforces my view, having read Sakora J's erudite dissertation on the history and purpose of the contempt powers of the National Court and the Supreme Court, that there was little of the principles that Sakora J expounded that were found by the majority to be in error. It was only the application of those principles that the majority took issue with. Sakora J's exposition of the principles underpinning the law of contempt therefore remains intact. I have found it illuminating and helpful in the present case.
11. Section 163(2) (establishment of the national court) of the Constitution states:
The National Court is a superior court of record and accordingly subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.
(Section 160(2) (establishment of the supreme court) is the equivalent provision for the Supreme Court.)
12. The offence of contempt is given a special status by Section 37(2) (protection of the law) of the Constitution, which states:
Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.
13. In Sikani's case Sakora J noted the classic common law definition of contempt of court is any conduct that is "an act or omission calculated to interfere with the due administration of justice". This is a very important point to appreciate. The contempt powers of the court do not exist to protect the feelings of the judges. They exist to protect the justice system and the Rule of Law. Sevua J explained this neatly in a contempt case in Lae some years ago, when he convicted a police detective for contempt for failing to ensure that State witnesses attended court for a criminal trial. The case was The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303. His Honour stated:
Police officers who are witnesses, or any witness for that matter, should be warned in no uncertain terms that they cannot flout the authority of the Court, nor can they display gross disrespect or cause undue delay and inconvenience to the Court. In saying this, I believe that the significant consideration here is not contempt of the Judge who administers justice. It is justice itself that is flouted by the contempt. To illustrate this, I refer to two quotations. Salmon LJ said in Jennison v Baker [1972] 2 QB 52 at 61:
Contempt of court is an unfortunate and misleading phrase. It suggests that it exists to protect the dignity of the judges. Nothing could be further from the truth. The power exists to ensure that justice shall be done. And solely to this end, it prohibits acts and words tending to obstruct the administration of justice.
Later on, in AG v Leveller Magazine Ltd [1979] AC 440, Lord Diplock said at 449:
My Lords, although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.
In this case, I am of the view that the contemnor had interfered with the due administration of justice. As it were, the trial was delayed and the Court's time was wasted. Almost every day, contempt of court is committed by CIS officers not bringing accused persons in time for trials, lawyers failing to appear on time, witnesses delaying in attending to give evidence, or their disappearance in criminal trials etc. etc. In my view, it is time that all forms of undue interferences with the administration of justice be seriously addressed and eliminated so that the Courts' authority and the due administration of justice are not flouted continuously.
14. Sakora J explained that contempt of court is constituted by a number of different sorts of conduct, the main ones being:
DISOBEDIENCE OF COURT ORDERS = CONTEMPT OF COURT
15. Sikani's case was concerned with category No 4: disobedience contempt. Sakora J highlighted that once a person fails to comply with any order of the National Court that person is in jeopardy of committing the offence of contempt. Failure to comply with the orders of any court in the National Judicial System, particularly the National Court or the Supreme Court, is a serious matter, which can lead to a charge of contempt of court. Contempt of court is a criminal offence, conviction for which can result in criminal sanctions, including a jail term or a fine. A Judge can on his or her own initiative charge a person who has failed to comply with a court order and need not wait for a party to the proceedings to initiate a charge.
16. A court order is a court order and every person to whom it is directed has an obligation to comply with it even if the order is thought to be wrong, irregular, invalid or otherwise improperly made. Hinchliffe J put it this way in Yap v Tan [1987] PNGLR 227:
Where an order is made by a court of competent jurisdiction it is the obligation of every person against, or in respect of, whom the order is made, to obey it unless and until that order is discharged; the obligation extends to cases where the person affected by the order believes it to be irregular or even void.
17. The elements of a disobedience contempt were set out by the Supreme Court in Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533. They are:
THE 'NO FUNDS' EXCUSE
18. Before I consider whether there appears to be evidence of the existence of each element, I need to say something about an excuse that I have heard bandied around in this case for not complying with the court's orders. It is not a good excuse, but I have heard it time and again not only in the present case but in other cases in which I have made orders to enforce the human rights of detainees in other correctional institutions, eg in Buka and Madang. It consists of two words: "no funds". In the first judgment I issued on this matter I stressed that I was making enforceable court orders:
I am making orders of the National Court directly under the Constitution. They are not mere recommendations, to be considered and submitted to some other authority for consideration and approval. Every person to whom these orders are addressed has a constitutional obligation to comply with them, within the time frame allowed. If anyone fails to comply I will summon them before the court to show cause why they should not be charged with the offence of contempt of court and dealt with accordingly.
19. I said I did not want to hear that hoary cry of "no funds" being used as an excuse for non-compliance:
If there are unforeseeable difficulties in complying with the orders, the court must be informed well ahead of the deadlines for compliance. Applications can be made in appropriate circumstances for variation of the orders. If "funding" is a problem, the court must be notified immediately so that further orders to appropriate authorities, eg the Department of Finance, can be made. This can be done under Section 225 of the Constitution (provision of facilities etc) which states:
Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders.
20. The words "no funds" seem to have become code for "no commitment", "no energy", "no initiative". Before it is accepted as a good reason not to comply with court orders, there should be proof that the person uttering those words has done their level best to get funds from a lawfully authorised source. If necessary, court orders should be sought to order the release of funds.
IS THERE EVIDENCE OF THE ELEMENTS OF THE DISOBEDIENCE CONTEMPT IN THIS CASE?
21. Yes. There is evidence of each of the three elements. I would be justified in charging the Commissioner, the Jail Commander and the Provincial Health Adviser. However, a decision to lay a charge is a serious decision and it is a matter of discretion.
THE DECISION WHETHER TO CHARGE A PERSON WITH CONTEMPT
22. This decision must be carefully made in a judicious way. When deciding whether to lay a charge of contempt a Judge should in my view consider the following matters:
(a) the extent of non-compliance with the court's orders;
(b) whether non-compliance appears to be manifestation of a deliberate snubbing of or disrespect for the court;
(c) whether the purpose of making the orders might be defeated by laying a charge; and
(d) whether the persons in whose favour the orders were made have applied or agitated for the laying of charges.
SHOULD CHARGES BE LAID IN THIS CASE?
23. I now apply the considerations just outlined to the facts of this case:
(a) the extent of non-compliance with the court's orders is significant;
(b) non-compliance is more a product of inefficiency and incompetence than a deliberate snubbing of or disrespect for the court;
(c) the purpose of making the orders might be defeated by laying a charge; and
(d) the persons in whose favour the orders were made have not applied or agitated strongly for the laying of charges.
24. Though the Commissioner, the Jail Commander and the Provincial Health Adviser have not fully complied with the court's orders, there has been a significant improvement in the health and hygiene levels at the jail, the work is ongoing and there is much more co-operation between the Correctional Service and other authorities. I therefore will not charge anybody with contempt yet, but rather keep the question of compliance with the court's orders under continuing review and consider making further orders to enforce the human rights of the applicants. In drawing that conclusion, everyone should appreciate that the gains that have been made due to the court's intervention will be short-lived unless everyone continues to comply with the letter and the spirit of the court's orders.
RULING
(a) the Managing Director of PNG Waterboard and the local Branch Manager of PNG Waterboard; and
(b) the Commissioner of the Correctional Service and the Lakiemata Jail Commander; and
(c) the WNB Provincial Health Adviser.
Ruling accordingly.
____________________________________________
Public Solicitor: Lawyer for the Applicants
Public Prosecutor: Lawyer for the State
A Walne: Lawyer for PNG Water Board
C Wainge: Lawyer for PNG Correctional Service
Amet Lawyers: Lawyer for Provincial Health Advisor
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