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Yasause v Keko [2017] PGNC 183; N6853 (18 August 2017)

N6853

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


HRA NO 108 OF 2015


BETWEEN


DR THEO YASAUSE
Applicant


AND
KIDDY KEKO, BOMANA JAIL COMMANDER
First Respondent


AND
MICHAEL WAIPO,
COMMISSIONER OF THE CORRECTIONAL SERVICE
Second Respondent


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent


Waigani: Cannings J
2015, 18th&19th December, 2017, 18th August


HUMAN RIGHTS – food provided to detainees in correctional institution – application for enforcement of human rights – Constitution, Section 36(1): freedom from inhuman treatment – Constitution, Section 37(1): protection of the law.


A prisoner brought an application on behalf of all detainees at a correctional institution for enforcement of human rights, which he alleged were breached by the respondents (the commanding officer of the institution, the Commissioner of the Correctional Service and the State) by their failure to provide the detainees with food that conformed with minimum dietary requirements imposed by law. He alleged that detainees were subject to an unbalanced and non-nutritious diet and this led to poor health and illness for many detainees. He alleged that detainees’ human rights were breached in two respects. They were (a) subject to treatment that was cruel and inhuman, contrary to Section 36(1) of the Constitution (freedom from inhuman treatment) and (b) denied the full protection of the law, contrary to Section 37(1) of the Constitution (protection of the law). The respondents did not refute the applicant’s evidence as to the actual diet of the detainees but denied that the diet was inadequate or led to poor health or illnesses. They argued that there was no breach of human rights as the detainees’ diet met minimum nutritional standards and was a proper and reasonable diet given that the detainees were in custody and had a better diet than many non-detainee citizens and there were funding and environmental constraints faced by the commanding officer of the prison.


Held:


(1) The detainees were given the same food each day with little variation. However, there was insufficient evidence that their diet led to poor health or illnesses.

(2) It was not proven that the non-variable diet amounted to treatment that was cruel or otherwise inhuman. There was no breach of human rights under Section 36(1) of the Constitution.

(3) The Correctional Service Act 1995 and the Correctional Service Regulation prescribe food and dietary requirements for detainees, which are minimum requirements that must be complied with in order to adhere to and administer the human rights of detainees. A detainee must be provided with food that is adequate to maintain his or her health and well-being (Act, s 123(1)) and that satisfies minimal nutritional standards, in that food must be provided in prescribed amounts and proportions from five food groups: (a) protein, (b) staple, (c) fruit, (d) vegetables and (e) dairy (Regulation, s 70) in accordance with a monthly schedule of detainee meals authorised by the Commanding Officer of the correctional institution (Regulation, ss 69, 71).

(4) It was proven that there was a continual, routine and substantial failure to comply with the food and dietary requirements for detainees prescribed by law, in that the detainees are with occasional exceptions provided the same meals each day, which consist of food from groups (a) and (b), with no or negligible quantities from groups (c), (d) and (e). Further it appears that the Commanding Officer does not prepare a schedule of monthly detainee meals as required by the Regulation. The nature and extent of non-compliance meant that the detainees’ right to full protection of the law was breached by the respondents.

(5) It was appropriate and necessary for the Court to make declarations and orders under Sections 57(1) and (3) of the Constitution to protect and enforce the human rights of the applicant and other detainees.

(6) Ordered: the Commanding Officer and the Commissioner shall ensure that a schedule of detainee meals that is compliant with the food and nutritional requirements of the Act and the Regulation, is devised and implemented by 1 January 2018.

(7) Remarks: the Commanding Officer and the Commissioner are at liberty to apply to the Court for orders under Sections 57(1) and (3) and 225 of the Constitution that the National Government provide additional arrangements, staff and facilities, including funds, to ensure compliance with the orders of the Court.

Cases cited:


The following cases are cited in the judgment:


Baisom Konori v Jant Ltd (2015) N5868
Electoral Commissioner v Whiskey Maniho [1987] PNGLR 449
Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651
Paias Wingti v Kala Rawali (2010) N3959
PNG Power Ltd v Ian Augerea (2013) SC1245
Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007
Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82
Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435
Special Reference by Morobe Provincial Executive (2010) SC1089


APPLICATION


This was an application for enforcement of human rights.


Counsel:


V Amoko, for the Applicant
G Akia & A Kajoka, for the Respondents


18th August 2017


  1. CANNINGS J: Doctor Theo Yasause is a prisoner at Bomana Correctional Institution. He has brought an application on behalf of all detainees at that prison for enforcement of human rights. He alleges the detainees’ human rights have been and are being breached by the respondents (the Commanding Officer, the Commissioner of the Correctional Service and the State) by their failure to provide the detainees with food that conforms with minimum dietary requirements imposed by law.
  2. He alleges that detainees are given the same food every day, that they are subject to an unbalanced and non-nutritious diet and that this has led to poor health and illness for many detainees. He alleges that the detainees’ human rights are being breached in two respects. They are being:
  3. The respondents do not refute the applicant’s evidence as to the actual diet of the detainees but deny that the diet is inadequate or has led to poor health or illnesses. They deny the allegations of breach of human rights. Four issues arise:

1. What is the diet and its effects?


  1. Are the detainees being subject to cruel or inhuman treatment?
  2. Are the detainees being denied the full protection of the law?

4. What orders should the Court make?


  1. WHAT IS THE DIET AND ITS EFFECTS?
  2. The applicant and three other detainees (including a male remandee and a female prisoner) have given evidence that detainees are provided with the same food, day after day. They are provided three meals each day:
  3. In their opinion, prolonged consumption of such an unbalanced diet has contributed to detainees developing conditions such as constipation, indigestion and joint aches and has led to a high rate of deaths of detainees.
  4. The acting Commanding Officer of the prison, Acting Chief Superintendent Haraha Kiddy Keko, does not refute that evidence. However he states that he has tried his best to have agriculture work parties (consisting of staff and detainees) cultivate food crops including greens to supplement the store food but they have been unable to grow enough due to overuse of the land, lack of irrigation, and budget cuts. He is not able to vary the detainees’ diet as all rations orders are executed by Correctional Service headquarters.
  5. I accept the detainees’ evidence and find that except on special occasions detainees are provided the same food, on a daily basis. However, there is insufficient evidence that that diet has led to poor health or illnesses.
  6. ARE THE DETAINEES BEING SUBJECT TO CRUEL OR INHUMAN TREATMENT?
  7. The applicant argues that subjecting the detainees to such an unbalanced and non-variable diet is a form of cruel and inhuman treatment. Ms Amoko for the applicant submitted that this amounted to a breach of human rights under Section 36(1) (freedom from inhuman treatment) of the Constitution, which 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.


  1. As I indicated in Baisom Konori v Jant Ltd (2015) N5868, Section 36(1) confers on all persons in Papua New Guinea – including detainees – the right not to be submitted to three sorts of conduct:
  2. 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.


  1. 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.


  1. In PNG the meaning of the terms “torture” and “inhuman treatment” has been addressed in a number of cases including SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314, 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 and Re Conditions of Detention at Beon Correctional Institution (2006) N2969. In Konori I expressed the view that, to amount to torture or otherwise inhuman treatment of another person, a defendant’s conduct must satisfy two criteria:
  2. In the present case it cannot reasonably be said that subjecting the detainees to an unbalanced and non-variable diet is a course of conduct engaged in with the intent and effect of treating the detainees as less than human. The claim of breach of human rights under Section 36(1) of the Constitution is rejected.
  3. ARE THE DETAINEES BEING DENIED THE FULL PROTECTION OF THE LAW?
  4. 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.


  1. Ms Amoko, for the applicant, submits that there are a number of laws that prescribe the diet of detainees. These laws are intended to provide protection for detainees against poor health and illness while they are in custody. The laws are being breached by the respondents, who are denying the detainees the right to full protection of these laws.
  2. Mr Akia, for the respondents, agrees that the laws exist but asserts that they do not confer enforceable human rights on detainees and even if they do, the respondents are complying substantially with the laws. He submitted that there was no breach of human rights as the detainees’ diet met minimum nutritional standards and was a proper and reasonable diet given that the detainees were in custody and had a better diet than many non-detainee citizens and there were funding and environmental constraints faced by the commanding officer of the prison.

Laws as to food and diet of detainees


  1. As I explained in Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651, the relevant laws are found in the Correctional Service Act and the Correctional Service Regulation. Section 123 (food) of the Act, which is in Part X (conditions of detention), states:

(1) A detainee has a right to be provided with food that is adequate to maintain the health and well-being of the detainee.


(2) Where practicable, a detainee shall be provided with special dietary food where necessary on account of the health or religious beliefs of the detainee.


(3) The Regulations and Standing Orders may make provision for the scale of daily rations and for the purchase, preparation, distribution and disposal of foods.


(4) Where the management of a correctional institution is not jeopardized, the Commanding Officer may authorize the provision of food to a detainee at the detainee's own cost.


  1. The Correctional Service Regulation contains Sections 69 to 79, which are in Division IV.2 (conditions of detention). These provisions state:

69. Schedule of meals.


A Commanding Officer shall ensure a schedule of detainee meals for each month in advance is prepared, and authorized by him.


70. Nutritional content of meals.


The schedule of detainee meals shall ensure that the food provided to each detainee residing in a correctional institution satisfies minimum nutritional standards by providing food from each of the following food groups in the amounts and proportions provided in Standing Orders:—


(a) protein;

(b) staple;

(c) fruit;

(d) vegetables;

(e) dairy.


71. Requirements to be taken into account.


A schedule of meals shall take the following requirements into account:—


(a) nutritional needs;

(b) usual daily activity of the detainees;

(c) budget;

(d) seasonal variations;

(e) facilities available for preparation and storage of food;

(f) availability of local produce.


72. Production of fresh produce used for detainee meals.


Where possible, fresh produce shall be produced at the correctional institution for consumption by detainees.


73. Use of local produce.


The use of local produce is to be given preference to imported products in the preparation of a schedule of meals.


74. Substitutes for special diets.


Where appropriate, the schedule of meals shall provide substitute food stuffs for special diets.


75. Supervision of food preparation.


Food shall be prepared under the supervision of a member who is appointed by the Commanding Officer to ensure compliance with health standards, the efficient use of provisions, and compliance with the schedule of meals.


76. Meals for detainees who are absent.


A Commanding Officer shall ensure that every detainee who is absent during a meal time from the correctional institution is provided a substitute meal.


77. Fresh drinking water to be available.


Fresh drinking water is to be available to every detainee at all times.


78. Food for children in the correctional institution.


A Commanding Officer shall ensure that where a child is permitted to reside in the correctional institution that child is provided with food in accordance with this Regulation and the Standing Orders.


79. Exercise.


(1) A detainee has a right to be in the open air for at least one hour each day.


(2) A detainee has a right to exercise necessary for the maintenance of health.


Do the laws create rights?


  1. I uphold the submission of Ms Amoko that the provisions of the Act and the Regulation relating to the food and diet of detainees impose obligations on the Commissioner of the Correctional Service and the Commanding Officers of correctional institutions, and create rights, which form part of the human rights of all detainees.
  2. The Correctional Service Act 1995 and the Correctional Service Regulation prescribe food and dietary requirements for detainees, which are minimum requirements that must be complied with in order to adhere to and administer the human rights of detainees. They are not mere administrative guidelines. A detainee has the right to be provided with food, which:

(a) protein,

(b) staple,

(c) fruit,

(d) vegetables, and

(e) dairy (Regulation, s 70),


in accordance with a monthly schedule of detainee meals authorised by the Commanding Officer of the correctional institution (Regulation, ss 69, 71).


  1. In the present case I have concluded that the detainees at Bomana Correctional Institution are provided the same meals, day-in-day-out, which consist of food from food groups (a) (protein) and (b) (staple), with no or negligible quantities from groups (c) (fruit), (d) (vegetables) and (e) (dairy).
  2. There is no evidence to support the respondents’ contention that the diet meets ‘minimum nutritional standards’. It is self-evidently a poor, unbalanced and non-nutritious diet. The fact that there are many people in Papa New Guinea who are not in custody and survive on a poorer diet, is irrelevant. Likewise with the claim that the Commanding Officer is doing the best he can, given the funding and environmental constraints to which he is subject. They are issues irrelevant to the existence of the obligation of the respondents to adhere to the law and of the right of the detainees to the full protection of the law.
  3. I am satisfied that the applicant has proven that continual, routine and substantial failure to comply with the food and dietary requirements for detainees, prescribed by law, amounts to breaches of the human rights of the detainees. The failure of the Commanding Officer and the State to provide food that is compliant with the minimum nutritional requirements of the Correctional Service Act and the Correctional Service Regulation means that detainees have been and are being denied the full protection of the law, guaranteed by Section 37(1) of the Constitution.
  4. WHAT ORDERS SHOULD THE COURT MAKE?
  5. As the applicant has proven that human rights breaches are occurring it is necessary for the Court to consider making declarations and orders aimed at remedying the situation. The National Court has wide powers to protect and enforce human rights under Sections 57(1) and (3) of the Constitution, which state:

(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. ...


(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).


  1. I consider that it is necessary and appropriate to declare that the human rights of detainees have been and are being breached due to the ongoing failure to provide them food that complies with the minimal nutritional requirements of the Correctional Service Act and the Correctional Service Regulation.
  2. Remedying this serious breach of human rights is not a complex task. It is a simple matter of following the law. The Commanding Officer must prepare a monthly schedule of detainee meals in accordance with Section 69 of the Regulation. The schedule must be prepared in a way that satisfies minimal nutritional standards. Food must be provided from the five food groups prescribed by Section 70 of the Regulation “in the amounts and proportions provided in the Standing Orders”.

REMARKS


  1. I am aware of the likelihood that by making these orders the Court will be requiring the Commanding Officer and the Correctional Service to find and apply funds that are presently not available. If funding is a problem, the Commanding Officer and the Commissioner should apply to the Court for orders that adequate funding be provided. This can be done under Section 225 (provision of facilities etc) of the Constitution, 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.


  1. It should be noted that the term “constitutional institutions” in Section 225 is not confined to offices and institutions that are established directly by the Constitution. Under Section 221 (definitions):

“constitutional institution” means any office or institution established by or provided for by this Constitution, other than an office of Head of State or of a Minister, or the National Executive Council.


  1. The Correctional Service is established by the Correctional Service Act as a State Service as permitted by Section 188(2) of the Constitution and is declared to be a disciplined force as provided in Section 207 of the Constitution. It is an institution provided for by the Constitution and is therefore a constitutional institution for the purpose of Section 225. The nature and extent of the power of the National Court and the Supreme Court to make orders under Section 225 have been addressed by the Supreme Court in a number of cases including Electoral Commissioner v Whiskey Maniho [1987] PNGLR 449, Special Reference by Morobe Provincial Executive (2010) SC1089 and PNG Power Ltd v Ian Augerea (2013) SC1245. National Court cases on the subject include Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82, Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435, Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007 and Paias Wingti v Kala Rawali (2010) N3959.

ORDER


  1. The following declarations and orders are made under Section 57(3) of the Constitution, having been considered by the Court to be necessary and appropriate for the purpose of Section 57 of the Constitution:

Ordered accordingly.
_____________________________________________________________
Public Solicitor : Lawyer for the Applicant
Solicitor-General : Lawyer for the Respondents

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