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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (HR) NO 743 OF 2013
BAISOM KONORI, FOR HIMSELF 12 OTHERS:
BARITA KONORI, COSIMA ODILA, SEDOK MALABAN, TAIGU KONORI, SIA ODILA, SALUM BADU, DAR ODILA, ALO KOMANI, MALABAN KONORI, BOMANE RAY,
ABOI BADU & MOSES BARAKAM
Plaintiffs
V
JANT LIMITED
Defendant
Madang: Cannings J
2014: 17 November, 8 December,
2015: 17 February
HUMAN RIGHTS – torture, protection against inhuman treatment, Constitution, Section 36 – slavery, Constitution, Section 253 – whether timber company which engaged villagers to transport logs infringed human rights
The plaintiffs entered into a four-month contract with the defendant, a timber company, to harvest timber and transport it to the roadside for pick-up. At the conclusion of the contract, the plaintiffs continued for two years, six months to perform the same services for the defendant, which continued to pay them the same amount per tonne as prescribed in the contract. Four years after those arrangements ceased, the plaintiffs commenced proceedings against the defendant, claiming compensation for breach of human rights. The plaintiffs claimed that they had been forced to carry logs without safety gear, under-paid, not fed, not equipped, exploited as cheap labour, treated as slaves and inhumanely under the guise of a contract. They claimed that the defendant breached their right to protection from inhuman treatment under Section 36(1) of the Constitution, and sought compensation under Sections 57 and 58 of the Constitution. The defendant denied liability.
Held:
(1) Section 36(1) of the Constitution confers on all persons the right not to be submitted to:
- torture (whether physical or mental);
- treatment that is cruel, inhuman or inconsistent with respect for the inherent dignity of the human person;
- punishment that is cruel, inhuman treatment or inconsistent with respect for the inherent dignity of the human person.
(2) For a person's conduct to amount to torture or otherwise inhuman treatment of another under Section 36(1), it must be conduct that is committed without the consent of the recipient and done with the intent and effect of treating the recipient as less than human.
(3) Here, the conduct of the defendant that the plaintiffs complained of was not done without the plaintiffs' consent and it was not done with the intent or effect of treating the plaintiffs as less than human. It could not fairly be said that the plaintiffs were submitted to torture or to punishment or treatment that was cruel, inhuman or inconsistent with respect for the inherent dignity of the human person.
(4) There was no evidence that the plaintiffs were treated as "slaves".
(5) No breach of human rights under Section 36(1) took place. No cause of action was proven. The proceedings were entirely dismissed.
Cases cited
The following cases are cited in the judgment:
Re Conditions of Detention at Beon Correctional Institution (2006) N2969
Re Heni Pauta & Kenneth Susuve [1982] PNGLR 7
Re Heni Pauta & Kenneth Susuve (No 2) (1982) N337
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314
Tom Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87
STATEMENT OF CLAIM
These were proceedings in which the plaintiffs sought to establish liability for breach of human rights.
Counsel
J Morog, for the plaintiffs
B W Meten, for the defendant
17th February, 2015
1. CANNINGS J: The question in this case is whether the defendant, Jant Ltd, breached the human rights of the plaintiffs. The plaintiffs live at Ato village in the South Ambenob area of Madang District. In August 2006 the defendant, a timber company, entered into a one-page written contract with them, under which they were paid K22.00 per tonne for harvesting timber and transporting it to the roadside. The contract was of four months' duration. After completion of the contract, the plaintiffs continued until June 2009 to perform the same services for the defendant, which continued to pay them the same amount per tonne as prescribed in the contract.
2. In July 2013 the plaintiffs commenced proceedings against the defendant, claiming compensation for breach of human rights. The plaintiffs claim that they had been forced to carry logs without safety gear, under-paid, not fed, not equipped, exploited as cheap labour, treated like slaves and inhumanely under the guise of a contract. They claim that the defendant breached their right to protection from inhuman treatment under Section 36(1) of the Constitution. They seek compensation under Sections 57 and 58 of the Constitution. The defendant denies liability so a trial has been conducted on the issue of liability.
3. The issues are these:
1 WHAT HAS TO BE PROVEN, TO ESTABLISH A BREACH OF SECTION 36(1) OF THE CONSTITUTION?
4. 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.
5. Section 36(1) of the Constitution confers on all persons in Papua New Guinea the right not to be submitted to three sorts of conduct:
6. The terms "torture" and "inhuman treatment" are not defined in the Constitution. However, in ascertaining their meaning it is useful to note that Section 36(1) is not unique to Papua New Guinea. In prohibiting torture and other forms of inhuman treatment and punishment, the Constitution is reflecting Article 5 of the Universal Declaration of Human Rights, which states:
No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
7. Article 7 of the International Covenant on Civil and Political Rights is in similar terms:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
8. In PNG the only concerted attempt to define the terms "torture" and "inhuman treatment" appears to have been in SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314. Kapi DCJ considered the purpose of Section 36(1) and the sort of conduct it is intended to proscribe and protect people against. His Honour stated:
There is one basic theme which runs right through this provision. I regard this as the central theme around which the construction of all the terms must revolve. This section seeks to protect the dignity of the human person. This was also recognised by the United States Supreme Court: see Trop v. Dulles at 642, Furman v. Georgia at 367-368. The last limb of s. 36(1) of the Constitution expressly states this. This special protection under the Constitution is given only to mankind and not other animals. Man is special and unique. Man is created in the image of God: Genesis Ch 1, v 27. In my view, the dignity of the human person stems from the Christian philosophy of mankind. These Christian principles are a foundation upon which our nation has been built. See preamble to the Constitution. When we get away from the uniqueness of mankind, there is a threat to the dignity of the human person. The value and worth of mankind which the Constitution has entrenched, let no authority undermine. This is a significant protection because a government which does not believe in the uniqueness of mankind may treat its people like animals. This theme also runs right through the other provisions of the Constitution, s 37(17), s 38(1), ss 39, 40 and 41 of the Constitution.
It follows from this that any treatment or punishment that is inconsistent with respect for the inherent dignity of the human person is prohibited by s 36(1). In my view torture, cruel or inhuman treatment or punishment are inconsistent with respect for the inherent dignity of the human person.
It has been argued in this reference that minimum penalty provisions are inhuman or cruel punishment. What is cruel or inhuman punishment? Courts in other jurisdictions have found it difficult to define these terms. Their meaning can best be illustrated by the kinds of punishment for which this prohibition was historically brought into existence in England, such kinds or modes of punishment as the use of the rack, thumb screws, stretching of limbs etc. When one examines these kinds of punishments one finds a common feature in that severe pain and suffering is caused to the human person, either physically or mentally. In my opinion this is what is prohibited in s 36(2) such as causing a lingering or slow death which may cause severe pain and suffering. There may be other forms of punishment which may not cause severe pain and suffering in their initial application but may result in severe suffering or injury to the human person, physically or mentally. I do not think that there is much difference in the meaning of the terms "cruel" and "inhuman punishment". In my view there would be no difference in the pain and suffering that is caused to the human person. They are both inconsistent with respect to the dignity of the human person. However, torture is regarded as an aggravated form of inhuman or cruel punishment which may be applied for a particular purpose.
9. In other cases it has been held that the sort of conduct prison detainees have been subjected to has amounted to torture and inhuman treatment. For example, Re Heni Pauta & Kenneth Susuve [1982] PNGLR 7, Re Heni Pauta & Kenneth Susuve (No 2) (1982) N337, Tom Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87, Re Conditions of Detention at Beon Correctional Institution (2006) N2969.
10. Having regard to the above international human rights instruments (both of which have been ratified by PNG) and the cases cited, I consider that for a person's conduct to amount to torture or otherwise inhuman treatment of another person under Section 36(1), it must be conduct that satisfies at least two criteria:
2 HAS A BREACH OF HUMAN RIGHTS BEEN ESTABLISHED UNDER SECTION 36(1)?
11. The plaintiffs say that in mid-2005 a representative of the defendant approached them at the village and told them that they should work for the defendant and that the defendant would pay them as labourers. Mr Konori was appointed foreman and other males from the village were recruited. The work involved cutting down acacia trees into one cubic metre logs and carrying them from the bush to the roadside to be loaded into trucks. Mr Konori, on behalf of his family, signed a contract with the defendant on 15 August 2006 and the contract was of four months duration. The plaintiffs were paid at the rate of K22.00 per tonne for the logs harvested. The plaintiffs continued to work under the same conditions until 2009. The plaintiffs allege that their attempts to renegotiate the contract were ignored by the defendant. The plaintiffs claim that they were treated as slaves.
12. I find that even if the plaintiffs' version of events is accepted and it is concluded that they were exploited, under-paid and poorly treated, they were not submitted to torture or inhuman treatment. Both of the criteria identified above do not exist, in that
13. There is one other finding I should make. The plaintiffs make the serious allegation that they were treated as slaves. Slavery is expressly prohibited in PNG by Section 253 of the Constitution, which states:
Slavery, and the slave trade in all their forms, and all similar institutions and practices, are strictly prohibited.
"Slavery" is not defined for the purposes of the Constitution so it is useful to have regard to the definition that appears in the international human rights instrument that deals specifically with this subject: the Slavery Convention. Article 1 states:
(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery, all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanges, and, in general, every act of trade or transport in slaves.
14. It should also be noted that in 2013 the Parliament (by making the Criminal Code (Amendment) Act No 3 of 2013) amended the Criminal Code to deal with the issue of human trafficking, including slavery, by inserting a new Division IV.1A (trafficking in persons), containing Sections 208A to 208G. Section 208B (interpretation) contains the following definition for the purposes of that Division:
"slavery or practices similar to slavery" means the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised and includes, but is not limited to, the following:
(a) the selling, bartering or buying of a person without that person's consent for value received or other consideration; or
(b) the selling, bartering or buying of a person under the age of 18 against the best interest of that person, for value received or other consideration; or
(c) the status of debt bondage intended as the condition of a person who has no real or acceptable alternative but to provide labour or personal services or those of a person under his control to repay a debt, if the value of those services or labour, as reasonably assessed, is not applied towards the liquidation of the debt or the length and nature of those services or labour are not limited and proportionate to the debt; or
(d) the status of domestic servitude intended as the condition of a person who is forced, by physical or psychological coercion, to work without any real financial reward, deprived of liberty and in a situation contrary to human dignity.
15. There is no evidence that the defendant purported to exercise any powers of ownership over the plaintiffs or treated them in any of the ways that fall within the definition of slavery in the Slavery Convention or the Criminal Code. So the allegation that the plaintiffs were treated as slaves is totally rejected.
16. The claim of breach of human rights is therefore entirely refused.
3 WHAT ORDERS SHOULD THE COURT MAKE?
17. This has been a trial on liability. I have concluded that the plaintiffs have not established a cause of action for breach of human rights. The proceedings must be dismissed. In view of the comparative economic positions of the parties I will allow the parties to bear their own costs.
ORDER
(1) All claims for relief are refused and the proceedings are entirely dismissed.
(2) The parties will bear their own costs.
(3) The file is closed.
Judgment accordingly.
_________________________________________________________
Public Solicitor: Lawyer for the Plaintiffs
Meten Lawyers: Lawyers for the Defendants
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