N8722
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HROI NO 1 OF 2021

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS 
UNDER THE CONSTITUTION 
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

RE EFFECT OF DILAPIDATED ROAD CONDITIONS ON 
ENFORCEMENT OF HUMAN RIGHTS IN MADANG TOWN 

Madang: Cannings J
2021: 25th, 26th, 28th, 30th January

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms) – power and duty of National Court to inquire into, protect and enforce guaranteed rights and freedoms – own initiative inquiry into dilapidated road conditions in provincial capital – effect on enforcement of human rights. 

The National Court took judicial notice of the dilapidated road conditions in a provincial capital and their apparent effect on enforcement of human rights.  The Court invoked the power and duty in s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution to protect and enforce the human rights of those persons who appeared to have been adversely affected by the road conditions, by commencing proceedings on its own initiative that were in the nature of an inquiry into four questions: Who is responsible for maintaining and rehabilitating the roads of Madang town? Why are the road conditions so poor? What is being done to address the problems? In what manner and to what extent are human rights being infringed by the dilapidated road conditions? In addition, the Court considered whether it was necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under Section 57(3) of the Constitution. 

Held:

(1)	Primary responsibility for maintaining and rehabilitating the roads of the provincial capital (other than the two National Roads that pass through the town) rests with the Provincial Government. 

(2)	The road conditions are very poor because over a long period of about eight years insufficient funds have been allocated in successive provincial budgets to road maintenance and rehabilitation in the area of the provincial capital. 

(3)	Little effective works has been done in recent times to address the problem, apart from assertive and pro-active action recently taken by the member of Parliament for the district in which the provincial capital is situated.

(4)	Human rights are being infringed by the dilapidated road conditions, as the road conditions adversely affect all road users including pedestrians in exercise of their rights to freedom based on law under Constitution, s 32(2), the full protection of the law under Constitution, s 37(1) and freedom from acts (including acts of omissions) that are harsh and oppressive under Constitution, s 41(1). Such rights will continue to be infringed if urgent remedial action is not taken to repair and rehabilitate the roads.

(5)	Declarations and orders made to ensure that such urgent remedial action is taken. 

Cases Cited

The following cases are cited in the judgment:

Enforcement of basic rights under the Constitution; Re Fish Ban (2020) N8221
Nail Lamon v Snr Const Zakang Bumai (2008) N3468
Namah v Pato (2014) SC1304 
Re Alleged Brutal Treatment of Suspects (2014) N5512
Re Conditions of Detention at Buka Police Lock-Up (2006) N4478 
Re Conditions of Detention at Buka Police Lock-Up (2006) N4976
Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918
Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007
Re Human Rights of prisoners sentenced to death (2017) N6939
Re Release of Prisoners on Licence (2008) N3421

INQUIRY

This was an inquiry by the National Court under Section 57 of the Constitution into the human rights implications of dilapidated road conditions in a provincial capital.

Counsel

W Akuani, for the First Respondent
B Kramer, with leave, for the Second Respondent
P Posanau, with leave, for the Third Respondent
B B Wak, for the Fourth Fespondent, in person
M Rubiang, the Fifth Respondent, in person
A Polis, the Sixth Respondent, in person
S I Asivo, the Seventh Respondent, in person
R Pariwa, the Eighth Respondent, in person
Y Wadau, the Ninth Respondent, in person
S Mellombo, the Tenth Respondent, in person
M Kamang, the Eleventh Respondent, in person
J Wowonam, the Twelfth Respondent, in person
T M Ilaisa for the Fourteenth Respondent
B Kramer, the Fifteenth Respondent, in person

30th January, 2021

1.      CANNINGS J: On 4 January 2021 I decided on the own initiative of the National Court to commence proceedings under s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution, centred on the human rights implications of the dilapidated road conditions in Madang town, the capital of Madang Province. I conducted an inquiry into the matter. 

2.     This judgment is the product of that inquiry. It is set out as follows:

A	the Court’s jurisdiction is outlined;

B	the procedures adopted by the Court are explained;

C	the four main issues are outlined;

D	evidence given by the parties is summarised;

E	the four main issues are determined; 

F	orders and declarations are considered.

A	JURISDICTION

3.     Papua New Guinea’s Constitution enshrines a number of human rights, also known as Basic Rights and constitutional rights. They are principally drawn from the United Nations Universal Declaration of Human Rights. They are conferred by the following sections of the Constitution:

•	right to freedom (s 32);
•	right to life (s 35);
•	protection from inhuman treatment (s 36);
•	protection of the law (s 37);
•	proscribed acts (s 41);
•	liberty of the person (s 42);
•	freedom from forced labour (s 43);
•	freedom from arbitrary search and entry (s 44);
•	freedom of conscience, thought and religion (s45);
•	freedom of expression (s 46);
•	freedom of assembly and association (s 47);
•	freedom of employment (s 48);
•	right to privacy (s 49);
•	right to vote and stand for public office (s 50);
•	right to freedom of information (s 51);
•	right to freedom of movement (s 52);
•	protection from unjust deprivation of property (s 53);
•	equality of citizens (s 55).

4.     As I have said in previous cases, these are not paper rights or mere expressions of principle (Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918, Re Conditions of Detention at Buka Police Lock-Up (2006) N4478, Re Conditions of Detention at Buka Police Lock-Up (2006) N4976, Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007, Re Release of Prisoners on Licence (2008) N3421, Nail Lamon v Snr Const Zakang Bumai (2008) N3468, Re Alleged Brutal Treatment of Suspects (2014) N5512, Re Human Rights of prisoners sentenced to death (2017) N6939, Enforcement of basic rights under the Constitution; Re Fish Ban (2020) N8221). 

5.     These are justiciable, legal rights. They can be enforced in the National Court and the Supreme Court, primarily under s 57 but also under s 155(4) of the Constitution.

6.     Section 57(1) (enforcement of guaranteed rights and freedoms) is the provision I have invoked to initiate this inquiry. It provides:

A right or freedom referred to in this Division [III.3, Basic Rights] shall be protected by, and is enforceable in, the Supreme Court or the National Court … either on its own initiative or on application by any person who has an interest in its protection and enforcement … [emphasis added].

7.    Section 57(1) gives jurisdiction to the National Court to protect and enforce rights and freedoms in two situations:  

•	on application by any person who has an interest in protection and enforcement of rights and freedoms; or
•	on its own initiative.

B	PROCEDURES 

8.   This inquiry was commenced in accordance with Rule 8 (commencement of proceedings by the court) of the Human Rights Rules 2010 (Order 23 of the National Court Rules), which states:

(1)	Where a Judge observes, or is informed by the Registrar or Sheriff or one of their officers, of a fact or matter which may constitute a breach of Basic Rights, the Court may commence proceedings on its own initiative.
  
(2)	Where the National Court commences proceedings on its own initiative in accordance with Section 57 of the Constitution –

(a)	the file reference shall be “HROI” and the responding party, if any, shall be called “the respondent”; and
(b)	subject to this Rule, the originating process shall be in Form 126 or in such other terms as the Court considers appropriate.

(3)	Nothing in these Rules derogates from the power and duty of the National Court under Section 57(1) of the Constitution to, on its own initiative, enforce the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution in an informal or such other manner that the Court thinks fit, especially in urgent cases where it is not practical to comply with formal requirements for commencement of proceedings.

(4)	Where the Court exercises a power under Sub-rule (3), the Court shall ensure that as soon as the circumstances permit, not being later than seven days after the exercise of such power, an originating process in Form 126 or in such other terms as the Court considers appropriate is filed and served on the respondents.

9.     The originating process, bearing the file reference HROI No 1 of 2021, was issued in Form 126 of the National Court Rules, in the following terms:

THE NATIONAL COURT, having taken judicial notice of the dilapidated road conditions extant in Madang town, Madang District, Madang Province, in particular the worn and broken pavements of the main arterial and feeder roads, including Airport Road, Baidal Road, Coastwatchers Avenue, Coronation Drive, Kalibobo Road, Modilon Road, North Coast Road and Yabob Road, and its deleterious effect on the ability of all persons and communities in Madang Province to have effective and efficient road access to education, health, law and justice, trade and all other facilities in Madang town and on all road including pedestrian users of the main arterial and feeder roads, and the increased risk of collisions created by vehicles being driven erratically in pothole-avoidance patterns, and a manifest reduction in air quality caused by the high incidence of dust particles that affect the health and safety of all persons in the town at a critical period in terms of management and control of the coronavirus pandemic and in particular patients and staff at Modilon General Hospital especially those patients being treated for respiratory illnesses and students and staff at schools including Tusbab High School and Holy Spirit Primary School that abut Modilon Road, and the detrimental effect on the safety and security of detainees at Jomba Police Station and Beon Correctional Institution who are required to be transported to and from their places of custody to the Madang District Court or to the National Court for their court appearances, all of which would seem to create an ambient societal disorderliness and decay that is nonconductive to maintenance of the Rule of Law, UNDER SECTION 57(1) OF THE CONSTITUTION, COMMENCES THESE PROCEEDINGS on its own initiative to enforce the guaranteed rights and freedoms of those persons whose rights or freedoms may have been, are being or will be infringed if action is not taken to fix the roads, those rights and freedoms including:

•	the right to freedom based on law under Constitution, Section 32(2) (right to freedom);
•	the right to the full protection of the law under Constitution, Section 37(1) (protection of the law);
•	the right to be protected against acts that, though done under valid laws, in particular cases, are harsh or oppressive or not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Constitution, Section 41(1) (proscribed acts).

AND FOR THE PURPOSES OF THESE PROCEEDINGS THE FOLLOWING PERSONS ARE UNDER SECTION 57(3) OF THE CONSTITUTION SUMMONED TO APPEAR BEFORE THE NATIONAL COURT AT MADANG ON 11 JANUARY 2021 AT 9.30 AM so that the National Court may inquire into this matter, and in particular determine: 

•	Who is responsible for maintaining and rehabilitating the roads of Madang town? 
•	Why are the road conditions so poor? 
•	What is being done to address the problems? 
•	In what manner and to what extent are human rights being infringed by the dilapidated road conditions in Madang town? 

And also determine whether it is necessary or appropriate to make further orders or declarations for the purposes of enforcement of Basic Rights under Section 57(3) of the Constitution:

1	PROVINCIAL ADMINISTRATOR, MADANG PROVINCE; AND 

2	CHIEF EXECUTIVE OFFICER, MADANG DISTRICT DEVELOPMENT AUTHORITY; AND 

3	TOWN MANAGER, MADANG URBAN LOCAL-LEVEL GOVERNMENT; AND

4	PROVINCIAL WORKS MANAGER, NATIONAL DEPARTMENT OF WORKS;

5	PROVINCIAL POLICE COMMANDER, MADANG PROVINCE; AND 

6	COMMANDING OFFICER, BEON CORRECTIONAL INSTITUTION. 

AND TAKE NOTICE that if any of the above office-holders is not able for good and sufficient reason to comply with this summons, the most senior officer available in the office of that office-holder shall comply with this summons;  

AND TAKE FURTHER NOTICE that failure by any person summoned to comply with this order may be deemed to be contempt of court and expose the person who fails to comply to the sanctions of the criminal law, including arrest, fine and/or imprisonment.

AND NOTE that any person who claims a legitimate and genuine interest in this matter is invited to appear before the National Court, at the above place and time, and seek the leave of the Court to be joined in these proceedings as an intervener.

DATED THIS 4TH DAY OF JANUARY 2021. 

JUSTICE CANNINGS
JUDGE OF THE NATIONAL COURT OF JUSTICE

10.    The first mention of the proceedings was, in accordance with the originating process, on 11 January 2021. All six office-holders who were summoned to appear complied with the summons. I ordered that they or the bodies that they represent be joined to the proceedings as respondents. I also granted leave to six interested persons to join the proceedings and ordered that the State, the Governor and the member for Madang Open be joined. There are thus 15 respondents:

•	Madang Provincial Government, first respondent,
•	Madang District Development Authority, second respondent,
•	Madang Urban Local-level Government, third respondent,
•	Provincial Works Manager, National Department of Works, fourth respondent,
•	Provincial Police Commander, Madang Province, fifth respondent,
•	Commanding Officer, Beon Correctional Institution, sixth respondent,
•	Stephen Asivo, on behalf of vehicle owners, Madang town, seventh respondent,
•	Ramsey Pariwa, vehicle owner, Madang, eighth respondent,
•	Young Wadau, vehicle owner, Madang, ninth respondent,
•	Sama Mellombo, vehicle owner, service provider & community leader, tenth respondent,
•	Mary Kamang, women’s leader, Madang Province eleventh respondent,
•	John Wowonam, service provider to Madang Provincial Government, twelfth respondent,
•	The Independent State of Papua New Guinea, thirteenth respondent, 
•	Hon Peter Charles Yama MP, Governor, Madang Province, fourteenth respondent,
•	Hon Bryan Kramer MP, Member for Madang Open, Fifteenth respondent. 

11.    Hearings were conducted on three different days in Madang, on 25, 26 and 28 January 2021. On 25 January I upheld an application by a number of respondents to summon the two political leaders whose participation in the proceedings was considered by the respondents to be critical: Hon Peter Charles Yama MP, the Governor (fourteenth respondent) and Hon Bryan Kramer MP, member for Madang Open (fifteenth respondent). Summonses were issued, requiring their appearance before the Court at 9.30 am on 26 January. The summonses were served on the afternoon of 25 January. It was discovered that the Governor was not in the province and the summons was served on his lawyer, Mr Thomas More Ilaisa. As for the member for Madang (who is also the Minister for Justice), he was in town and the summons was served on him personally. 

12.    On 26 January the Court heard evidence. Mr Kramer complied with the summons and appeared in person and gave evidence.  Mr Yama did not appear and his lawyer, Mr Ilaisa, explained that he had phoned Mr Yama, who was in the Philippines attending to his sick wife. 

13.    On 28 January the court heard submissions. 

C	FOUR MAIN ISSUES 

14.     The focus of the proceedings has been on four main issues:

1.	Who is responsible for maintaining and rehabilitating the roads of Madang town? 

2.	Why are the road conditions so poor? 

3.	What is being done to address the problems? 

4.	In what manner and to what extent are human rights being infringed by the dilapidated road conditions in Madang town? 

15.     In addition, the Court has considered whether it is necessary or appropriate to make further orders or declarations under s 57(3) of the Constitution. 

D	EVIDENCE 

16.     At the hearing on 26 January 2021 the Court heard oral and/or affidavit evidence from 13 witnesses, which is summarised in the table below. 

No	Witness	Description 	
1	Marcus Kachau 	Acting Madang Provincial Administrator, the most senior officer of Madang Provincial Government (1st respondent)	
Primary responsibility for Madang town roads rests with the National Government, which has not provided sufficient funding for many years. Hence the roads have been deteriorating since 2013. The provincial government has found it difficult to provide funding due to APEC in 2018 and the Covid-19 pandemic in 2020. The lack of funds is the major problem. The provincial government has on a number of occasions made applications for funding from the National Government under the Public Investment Program. But even when funding is approved, it is often in principle only and the provincial government does not actually receive the money. That happened in 2020. Because of a funding submission made by the provincial government, the Department of National Planning and Monitoring issued warrants to the value of K 5 million, which were released to the Department of Works for Madang town roads. But the money was never in the hands of the provincial government and the money was not spent on Madang town roads. The provincial government has proposed entering into a memorandum of agreement with the Department of Works but it remains unexecuted. 

Under cross-examination Mr Kachau could not say how much was allocated in the 2020 provincial budget for Madang town roads. Nor could he say how much was allocated in the 2021 budget as the budget is yet to be approved and the accounts had not opened yet. 
	
2	Hon Bryan Kramer MP	Member for Madang Open,
Chairman, Madang District Development Authority	
Primary responsibility does not rest with Madang District Development Authority but the problem is obvious.  Funds have been allocated to the Department of Works but they have used the funds for paying contractors who had not been paid for previous works. He has become frustrated by what he regards as misapplication of public money by the Department of Works and by the inaction of the provincial government. He has taken steps at no public expense to engage a local company Kramer Ausenco to prepare a scope of works for rehabilitation of the entire length, 5 km, of Modilon Road, which estimates that the work can be done for about K10 million. The company is operated by members of his family but he emphasised that the work had been done on a pro bono basis. He has managed to secure the required funds and has two government cheques in his possession, worth a bit more than K10 million. He has not yet presented the cheques as he wants to make sure that they don’t bounce, as getting government cheques honoured at this time of the year can be a problem due to the closure of accounts at the end of the financial year. 

In cross-examination he stressed that it was not his intention to use the money obtained for the purchase of road-building equipment. He will ensure that the Madang District Development Authority tenders the contract for the works, which will be awarded to a reputable contractor. 
	
3	Philip Posanau 	Acting Town Manager,
Madang Urban Local-level Government 	
Difficult for Madang Urban LLG to do anything as it comes under Madang Provincial Government and Madang District Development Authority. Though it has an internal revenue base in the form of land rates and garbage and sanitation charges, it relies largely on the provincial government for funding, which is always a problem, and funds are not available for road maintenance.
	
4	Henry Rakuasi 	Provincial Works Manager	
The Department of Works has the technical capacity to do the work required on the Madang Town roads but it cannot do the work without funds and he is not in position as Provincial Works Manager to do anything without the authority of his Departmental Head. The primary focus and responsibility of the Department of Works is on National Roads and there are only two that pass through Madang District: the Madang-Lae (Bruce Jephcott) Highway and the North Coast Road (Bogia Highway). If funds are allocated to a project and the funds are actually received and approval is given, the work can be done. However, the main problems with the town roads, especially Modilon Road, are that they have outlived their lifespan and the poor urban drainage system in Madang. 
	
5	Supt Mazuc Rubiang 	Madang Provincial Police Commander 	
The poor road conditions impair the ability of police to move about the town easily – some of the worst conditions are on Modilon Road outside Jomba Police Station and the excessive dust affects all who work or who are detained there. 
	
6	Supt Andrew Polis	Jail Commander, Beon Correctional Institution 	
The present road conditions provide security risks to the Correctional Service in movement of detainees from Beon Correctional Institution to Madang District Court, which is in the downtown area of Coastwatchers Avenue, and the National Court, which is in Yabob Road, Jomba. Beon Road from the junction with North Coast Road all the way to the prison is in very bad shape. The bridge across the creek close to the prison entrance needs urgent repair. If it falls down the prison will be cut off from town. The prison is a vital part of the justice system in the province and it is not being given the resources it requires. 

7	Ramsey Pariwa	Road user	
Anyone who runs a vehicle on Madang’s roads is seriously affected as their vehicles are being damaged excessively every time they are used – there is an enhanced risk of collisions as drivers take extreme steps to avoid potholes – the cause of the problem is the failure of Madang Provincial Government and Madang District Development Authority to do their jobs – the Department of Works should not be blamed as they only look after national roads. 
	
8	Mary Kamang 	Women’s representative	
Women and children are those suffering the most from the road conditions – mothers doing marketing on the roadside are at risk– children are at risk – children have a right to education in a safe and healthy environment but many schools are situated on the edge of roads and have excessive dust entering their classrooms as an everyday occurrence – also, no one seems to be enforcing municipal laws aimed at allowing free passage of citizens on the town roads – shipping containers and other obstacles to be parked on roads – her husband, Paul Kamang, has suffered serious and permanent eye damage due to excessive dust but no one seems to care about these real human costs of the poor roads – Madang was once known as the Pearl of the Pacific but the image of the town has collapsed – she remembers growing up as a small girl in Madang when the town was something to be proud of – successive governments since the 1990s have let the town down – the present Governor, Hon Peter Yama, was at a critical time the Minister for Works in the National Government and introduced a privatisation policy that allowed private contractors who have no love of the town to mushroom – the town’s roads need permanent and wholesale fixing as there have been too many attempts at quick fixes and bandaging, which has only made the problem worse – the intervention of the National Government is required – aid funding should be sought if the National Government has a funding problem. 
	
9	John Wowanam	Service provider to Madang Provincial Governor 	
It is very hard to sustain a small business in Madang – to run a  business, you need good roads but in Madang we have none – the problem has been getting worse year after year and when the people ask their leaders to do something they just point to others as if it’s not their problem – someone has to take ownership of the problem. 
	
10	Thomas More Ilaisa 	Lawyer for the Governor	
Governor could not be here as he is in the Philippines attending to his sick wife – the Governor agrees that the roads are a big problem but much more than K10 million is required to fix the problem and obtaining the funding required is a big challenge – the roads problem is nothing new – it has come about due to decades of neglect by previous governments.   
	
11	Young Wadau 	Vehicle owner	
There are four levels of government that should recognise that repair and maintenance of the town roads should be a shared responsibility: the National Government, the Provincial Government, the Local-level Government and the District Development Authority – there is a piece of legislation that provides for cooperation between the different governments: the Road Maintenance Act 1971 – the Act has not been repealed but its important provisions, particularly those providing for establishment of the Provincial Roads Board, have been ignored. We need to get a Madang Provincial Roads Board operating so that road repair and maintenance is carried out in a routine and coordinated manner. Provincial budgets are not being made public but are kept secret resulting in lack of accountability and misuse of the money of the people of the province.   

12	Sama Mellombo	Vehicle owner, service provider, community leader  	
The road conditions are unsafe for all road users, not only those whose vehicles suffer great damage through excessive wear and tear, but all road users including pedestrians who have to walk along roadsides facing big risks – the problems are acute for everyone in the province, not only the town residents, especially for people from Rai Coast District – people have to come to town for many reasons and particularly those who are injured or sick, they need easy access to the provincial hospital, but often their urgent transport needs are delayed – they face delays in getting from the districts into town and once they reach town the delays continue, and sometimes it is too late – lives are lost because of poor roads – many road accidents are caused by drivers trying to do their best to cope with the roads – Madang Provincial Government has been afflicted by unstable political leadership over many years, making it dysfunctional – too much provincial government money has been paid on salaries of leaders and public servants who are not doing their jobs – there seems to be no or little communication among the various levels of government. 
	
13	Stephen Ian Asivo	Road user, human rights advocate	
There are thousands of underprivileged or marginalised persons whose voices must be heard and who are affected on a daily basis by the poor road conditions – the Madang Provincial Government wants to shift the blame to the National Government but it does not understand that it is the Provincial Government’s job to maintain the roads – its attempts to do so have been characterised at best by incompetence but really it’s corruption of the system brought about by awarding road maintenance contracts to unscrupulous contractors or cronies of those in authority. The member for Madang Open, Hon Bryan Kramer, thinks he knows what to do, but he does not know anything about road maintenance. He has somehow managed to get K10 million of public money into his own hands when it should be in the hands of the Department of Works, which has the technical capacity to do the work – the Madang District Development Authority has no technical capacity and should not be trusted – the K10 million that the local member has got his hands on, should be returned to the Department of Works so that roadworks can begin immediately – a long-term solution is needed as the roads have outlived their useful life – the provincial government should be ordered to accept responsibility for fixing the roads – it is a catastrophe brought about by buck-passing and pointing fingers of blame at each other – the provincial leadership does not know or care that their failures are affecting every single road user including pedestrians – and the people worst affected are those who are poor or marginalised members of the community – the Constitution has been breached in many respects and the worst culprit is Madang Provincial Government – the Holy Bible says that where the righteous rule, the People rejoice, but when the wicked rule, the people suffer – the People of Madang are suffering because the wicked are ruling and playing a blame game.  

E	DETERMINATION OF FOUR MAIN ISSUES 

1	Who is responsible for maintaining and rehabilitating the roads of Madang town? 

17.     I reject the opinion of the Acting Provincial Administrator that the town roads are the responsibility of the National Government. That is not the view of other respondents, including the Governor who through his counsel was willing to accept that primary responsibility for maintaining and rehabilitating the roads of Madang town (other than the two National Roads that pass through the town) rests with Madang Provincial Government. It is indicative of the confusion and misunderstanding that exists regarding the role of the provincial government, that two different views on such a fundamental issue would be expressed by on the one hand, the political head of the province, and on the other hand, the head of the provincial administration. In any event, the Acting Provincial Administrator is wrong. I uphold the position of the Provincial Works Manager that, other than the Bruce Jephcott Highway and North Coast Road, which are National Roads and the responsibility of the National Government, Madang town roads are the provincial government’s responsibility. 

2	Why are the road conditions so poor? 

18.     The road conditions are very poor because of the Madang Provincial Government’s failure to understand or recognise its responsibility. Over a long period, which I estimate as about eight years, insufficient funds have been allocated in successive provincial budgets to road maintenance and rehabilitation. Those funds that have been allocated would appear to have been misapplied, under-applied or ineffectively applied. I am not in a position to criticise particular contractors but it is noted that in the respondents’ evidence there was a general concern expressed about the quality of the roadwork that has been done. These concerns are genuine in my view as there has clearly been a problem with the capacity and/or integrity of the contractors engaged in the past. 

3	What is being done to address the problems? 

19.     Little effective work has been done in recent times to address the problem, apart from grading of roads and some filling of potholes that took place in October 2020. The attempt of Madang Provincial Government to enter into a memorandum of agreement with the Department of Works has been well-intentioned but ineffective. I accept the evidence of the Member for Madang Open, Hon Bryan Kramer MP, that he has taken the initiative and been proactive and assertive in securing funds necessary to at least address the problem of Modilon Road, which is presently in an embarrassingly atrocious condition.

4	In what manner and to what extent are human rights being infringed by the dilapidated road conditions in Madang town? 

20.     I uphold the submissions of the majority of respondents that human rights are being infringed by the dilapidated road conditions. If “human rights” are defined strictly by those recognised as Basic Rights in the Constitution the link between poor road conditions and infringement of rights can be difficult to see. However, if we extend the concept of rights to include social rights to things like clean air, education and fundamental order in society, the link becomes clearer. 

21.     Everyone who uses the roads in Madang, whether a vehicle owner or driver or a cyclist or a pedestrian or the mothers on the roadside conducting their informal markets or children and teachers in school who have to battle against the elements, especially noise and dust, to try to conduct the important business of education, or staff and patients at Modilon General Hospital, especially those at the Fred Hollows Eye Clinic and patients at the hospital dealing with respiratory illnesses, as well as the members of the Police Force and detainees at Jomba Police Station – all those people are suffering from the abject neglect of responsibility that has resulted in this mess. 

22.     It is no good saying, as the Acting Provincial Administrator suggested, that no one is forced to use the roads, so their human rights are not being infringed. Mr Kachau is resisting the irresistible conclusion that human rights are being infringed. He is not seeing what everyone else is seeing. 

23.     The People of Madang have a right to an efficient road network. This must clearly be understood. They have a right to an ordered and orderly society.  A clean and well-run town in which basic transport infrastructure is maintained in a place in which order and discipline will prosper. A provincial capital which oozes neglect and apathy, which greets people with vast potholes and rubbish and broken road-pavements and vehicles being driven haphazardly, is a place which says to newcomers and residents alike: this is a free-for-all, make your own rules, do as you please, do your best to survive. In such places – which is the January 2021 version of Madang town – the Rule of Law is at risk. Fundamental rights and freedoms are imperilled. The first category of Basic Rights acknowledged in the Preamble to the Constitution – “life, liberty, security of the person and the protection of the law” – is at stake. 

24.     Human rights are being infringed by the dilapidated road conditions in Madang town, as the road conditions affect all road users including pedestrians to the right to freedom based on law under Constitution, s 32(2), the right to the full protection of the law under Constitution, s 37(1) and the right to freedom from acts (including acts of omissions) that are harsh and oppressive under Constitution, s 41(1). 

25.     Section 32(2) of the Constitution states:

Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a)	does not injure or interfere with the rights and freedoms of others; and
(b)	is not prohibited by law,

and no person—

(c)	is obliged to do anything that is not required by law; and
(d)	may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

26.     Section 37(1) of the Constitution 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.

27.     Section 41(1) of the Constitution states:

Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a)	is harsh or oppressive; or
(b)	is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)	is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

28.     Those rights will continue to be infringed if urgent remedial action is not taken to repair and rehabilitate the Madang Town roads.
 
F	WHAT DECLARATIONS OR ORDERS SHOULD BE MADE?

29.     Inspiration is provided by the Constitution.  As the Supreme Court emphasised in Namah v Pato (2014) SC1304 the Constitutional Laws of Papua New Guinea are not simply statements of general principle. They impose and confer real and enforceable powers, functions, duties and responsibilities, which exist by operation of the Constitution, without the need for supporting, machinery or procedural laws to bring them into effect.

30.     Section 11(2) (Constitution as supreme law) states:

The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-

31.     Section 57(3) (enforcement of guaranteed rights and freedoms) is the primary enforcement provision regarding human rights. It states:

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).

32.     Section 155(4) (the National Judicial System) is also significant. It states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

33.     Declaration and orders will be made. It is clear that the present dilapidated road conditions in Madang Town are a direct result of dereliction of duty over a period of eight years by Madang Provincial Government. The Court cannot order miracles to happen. But it can order that things be done in the short and medium term to restore the integrity of the town, which as Mrs Kamang explained so vividly in her evidence, was once the Pearl of the Pacific, a place of joy, love, safety, peace and pride. 

DECLARATIONS AND ORDERS 

34.     It is declared and ordered, pursuant to Sections 57(3) and 155(4) of the Constitution, as follows: 

ORDER 1: It is declared that the present dilapidated road conditions in Madang Town are a direct result of dereliction of duty over a period of eight years by Madang Provincial Government to make adequate provision in its annual Budgets for road maintenance and rehabilitation, the result being that the rights of all the People of Madang Province and particularly Madang Town road users including pedestrians to the right to freedom based on law under Constitution, Section 32(2), the right to the full protection of the law under Constitution, Section 37(1) and the right to freedom from acts (including acts of omission) that are harsh and oppressive under Constitution, Section 41(1), are being and will continue to be infringed if urgent remedial action is not taken to repair and rehabilitate the Madang Town roads.

ORDER 2: Urgent remedial action shall be taken to repair and rehabilitate the Madang Town roads by the persons and authorities and in the manner and within the time prescribed by the following orders. 

ORDER 3: Madang District Development Authority shall have primary responsibility for repairing and rehabilitating Modilon Road from its junction with Baidal Road to its terminus at Main Wharf, Madang Harbour (“the works”) and the person with the individual and enforceable obligation of discharging that responsibility is the Chairman, Madang District Development Authority, who shall ensure that government cheques presently in his custody and control bearing the following descriptions – the cheque No 059242, dated 20 December 2020, sum K7,182,838.00 and the cheque No 019862, dated 22 December 2020, sum K3,800,000.00) – are forthwith presented and applied to the works, so that the works are commenced no later than 1 April 2021 and completed no later than 1 August 2021 and furthermore: all departments, agencies and office-holders of the National Government and Madang Provincial Government and all other relevant persons shall take all steps necessary to honour those cheques forthwith and no department, agency or office-holder of the National Government or Madang Provincial Government or any other person shall take any steps to withdraw funding for the works or interfere with implementation of this order without the leave of the National Court; and the Chairman, Madang District Development Authority, shall file in these proceedings by 10 February 2021 an affidavit deposing to the steps he is taking, in the form of a plan of action, to comply with this order. 

ORDER 4: Madang Provincial Government shall provide K2.5 million from its 2021 Provincial Budget for remedial works, by repairing, on a short-term and immediate basis if necessary, by at least grading all non-bitumen patches and filling all pot-holes, the following roads in such a way that they are driveable in an orderly and safe manner:

Airport Road from its junction with Baidal Road to its terminus at Madang Airport;
Baidal Road from its junction with Modilon Road to its junction with Airport Road;

Coastwatchers Avenue from its confluence with Coronation Drive to its junction with Patosten Street, and along Patosten Street to Modilon Road;
Coronation Drive from its confluence with Coastwatchers Avenue to its junction with Modilon Road;
Kalibobo Drive from its junction with Modilon Road to its junction with Coralita Street;
Yabob Road from its junction with Modilon Road to its junction with North Coast Road; and
any other feeder or significant road in Madang Town requiring such works, 

and the person with the individual and enforceable obligation of discharging that responsibility is the Madang Provincial Administrator (whosoever is holding that position on a substantive, acting or de facto basis) who shall work closely with the Madang Provincial Works Manager, National Department of Works, so that Madang Provincial Government shall provide funding to the National Department of Works to undertake the works (noting, however, that if the National Department of Works does not have the resources immediately available, the Madang Provincial Administrator shall engage private contractors if necessary to undertake the works) so that all roads included in this order are attended to; and furthermore the Madang Provincial Administrator shall, after consulting the Provincial Works Manager, file in these proceedings, by 8 February 2021, an affidavit containing a scope of works to give effect to this order with an appropriate sense of urgency so that road standards on all roads referred to in this order are brought to acceptable standards by 1 May 2021, and the first works on the first of the roads shall commence no later than 10 February 2021. 

ORDER 5: The Independent State of Papua New Guinea shall provide K2.5 million from the 2021 National Budget for repairing and rehabilitating North Coast Road from its junction with Modilon Road to its junction with Beon Road and Beon Road from its junction with North Coast Road to its terminus at Beon Correctional Institution (“the works”), including and in particular the bridge across the creek before the entrance to Beon Correctional Institution, so that the works, which will enable a safe and secure passage of detainees from Beon Correctional Institution to Madang District Court and the National Court at Madang, are commenced no later than 1 May 2021 and completed no later than 1 December 2021, and the persons with the individual and enforceable obligation of complying with this order are the Secretary, Department of Treasury and the Secretary, Department of Works, each of whom shall by 10 February 2021 file an affidavit in these proceedings deposing to the steps they will each take to comply with this order and indicating anything that might prevent this order being given practical effect or any variation of the order considered necessary to remove uncertainty as to the force and effect of the order. 

ORDER 6: The Madang Urban Local-level Government shall provide all staff and facilities at its disposal to assist all other persons and authorities referred to in this order in ensuring that all orders are given practical effect and in particular shall assertively and actively enforce all local-level government  and municipal by-laws and regulations relating to keeping the roads referred to in this order and the pedestrian footpaths adjacent to such roads in a clean and tidy state and furthermore shall engage with community groups in ensuring that grass and weeds along all such roads and verges are trimmed or removed so as to lift the urban aesthetics of Madang Town to acceptable standards and the person with the individual and enforceable obligation of discharging that responsibility is the Town Manager, Madang Urban Local-level Government, who shall by 10 February 2021 file in these proceedings an affidavit deposing to the steps that will be taken to implement this order.

ORDER 7: An ad hoc committee shall be formed, called the Madang Town Roads Court Order Committee, consisting of the Chairman, Madang District Development Authority as Committee Chairman, the Madang Provincial Administrator, the Madang Provincial Works Manager and the Town Manager, Madang Urban Local-level Government, who shall meet at least once every two months to monitor and discuss implementation of this order, and the Committee Chairman shall at least once every two months file in these proceedings an affidavit that reports on progress with implementation of this order.

ORDER 8: Any of the authorities or persons referred to in this order may apply for variation of these orders, including applying for further time for compliance, by filing a notice of motion in these proceedings, supported by affidavit, giving at least seven days’ notice of the hearing of the motion.

ORDER 9: Applications made in the course of these proceedings for other orders, including damages, are declined; and any such applications may be made in separate proceedings for enforcement of human rights in accordance with Order 23 (human rights) or other provisions of the National Court Rules.  

ORDER 10: These proceedings will return for mention and to check compliance with particular orders requiring early compliance on 12 February 2021 at 9.30 am. 

Judgment accordingly.
___________________________________________________________
William Akuani Lawyers: Lawyers for the First Respondent
Bradley Wak Lawyers: Lawyers for the Fourth Respondent
Young Wadau Lawyers: Lawyers for the Ninth Respondent	
Thomas More Ilaisa Lawyers: Lawyers for the Fourteenth Respondent