National Court Circuit, Southern Highlands Province, Re [1989] PGNC 70; [1988-89] PNGLR 435; N775 (11 October 1989)

N775

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF SECTION 23(2) AND SECTION 225 OF THE CONSTITUTION
AND IN THE MATTER OF THE CONDUCT OF THE NATIONAL COURT CIRCUIT,
SOUTHERN HIGHLANDS PROVINCE, OCTOBER 1989

Mendi
Brunton AJ
11 October 1989

CONSTITUTIONAL LAW - Constitutional duties - Enforcement of - State duty adequately to resource constitutional offices - Public Prosecutor - Public Solicitor - Denial of accommodation on circuit - Alleged unpaid accommodation expenses - Possible jeopardy to criminal circuit - Order for payment of accounts - Constitution, ss 22, 23, 225.

Section 23 of the Constitution provides that where a Constitutional Law imposes a duty in the absence of enforcement provisions, the National Court may:

"(b) in the absence of any equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default, ...

for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper."

Section 225 of the Constitution provides that it is:

"... the duty of the National Government and of all other governmental bodies ... 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."

The Public Prosecutor complained to the judge on circuit that he had been denied accommodation because accommodation costs of representatives of the Public Prosecutor’s Office and of the Public Solicitor’s Office allegedly remained unpaid by the Department of Justice.

Held

In the circumstances, there was the possibility of the National Court Criminal Circuit being put at risk by lack of provision of facilities to constitutional offices, and if accommodation costs remained unpaid as alleged, a breach of duty under s 225 of the Constitution, which warranted an order being made under s 23 of the Constitution for payment of unpaid and lawfully payable accounts within seven days.

Enforcement of Constitution

The reasons hereunder were published by the National Court following complaint to it of an alleged breach of the constitutional duty to facilitate the proper functioning of constitutional offices, namely, the Public Solicitor’s Office and the Public Prosecutor’s Office.

Counsel

B B Poyia, for the Office of the Public Prosecutor.

11 October 1989

REASONS

BRUNTON AJ: The State Prosecutor complained to me in Chambers that he has been denied accommodation by the Muruk Lodge at Mendi because it has been alleged that the Department of Justice has not paid its bills in respect of lawyers whose accommodation costs are borne by the Department of Justice.

I have also been informed that monies were outstanding in respect of the National Court. The National Court is a separate constitutional entity and not part of the National Government. Its bills are not paid by the Department of Justice. The National Court has an entirely separate appropriation and my understanding is that its accounts to the Muruk Lodge have been paid.

The refusal to supply accommodation services to the State Prosecutor and the Public Solicitor’s representatives may have serious consequences for the conduct of the circuit. The lawyers who have the constitutional responsibility for prosecuting and defending offenders before the National Court, necessarily, have to be accommodated somewhere. The accommodation they require does not have to be of international standard, but they do need to have the basics: adequate shelter, wholesome food, relative quietness, a desk, or table and a chair from which to work. So long as the courts and lawyers are required to go on circuit, then the State has an obligation to provide the fundamentals of existence for the courts. This is because, in the Human Rights provisions of the Constitution, accused persons have entitlements, rights, to a fair trial within a reasonable time, and to be defended by lawyers of their choice or by the Public Solicitor. These rights are absolute in the sense that they are not "subject to finance". There is ample power under s 57 of the Constitution to enforce the rights.

Apart from the rights of accused persons, the Constitution, s 225, places a specific obligation on the State adequately to resource constitutional offices. Section 225 creates constitutional duties, and all constitutional duties are subject to the enforcement provisions in s 23 of the Constitution. Section 225 provides:

"225. Provision of facilities, etc.

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."

Section 23 provides:

"Sanctions

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may:

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000; or

(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1)."

The Muruk Lodge is owned by the Southern Highlands Provincial Government. Apparently the Board of the Muruk Lodge has made a decision to exclude all Justice Department personnel until the Department of Justice pays its accounts.

I am not sure of the legality of this in respect of an innkeeper’s licence as the statutory law and the Underlying Law have not been argued before me.

But on 27 September 1989, the Manager of the Muruk Lodge sent a letter by facsimile to the First Assistant Secretary, Management Services, of the Department of Justice which claimed that the following accounts were outstanding:

Date	Invoice Number	Name of Officer	ILPOC Number	Outstanding Amount
23.11.88	7526	L Tohichem	93408	K48.50
23.03.89	8044	A Rop	85878	294.50
10.04.89	8231	D Poka	65585	1530.00
	8232
		TOTAL		K1873.00

There were other amounts in the Manager’s letter which were claimed to be outstanding, including one in respect of the National Court Judge who conducted the July 1989 circuit in Mendi. I understand that these accounts have been paid.

The largest amount that appears to be still outstanding is for Mr D Poka, a lawyer with the Public Solicitor’s Office.

The Public Solicitor is a Constitutional Office-holder. The State has a duty to ensure, as far as is within its 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 all constitutional office-holders: s 225 of the Constitution.

The Public Solicitor’s Office and the Public Prosecutor’s Office, and the effective administration of the National Court circuit in Mendi are all affected by this present matter. Indeed, if it cannot be resolved, I must consider stopping the circuit and returning to Port Moresby. That I am loath to do because of the wider public interest in having the court sit, and because of the rights of those held in custody awaiting trial.

If, indeed, the State has not paid its bills to the Muruk Lodge dating back from November last year to April this year, then there has been a breach of the duty to ensure, "as far as may reasonably be" the proper functioning of several constitutional offices. This is particularly so when, as is the case, there does not appear to be alternative accommodation available in Mendi.

The National Court has ample powers under s 23, and in this case s 23(2) of the Constitution, to ensure that those who have responsibilities perform their constitutional duties.

In this case, I do not know whether or not the bills have or have not been paid. The Manager says they have not. The National Court circuit is at some risk. Some action appears to be necessary and accordingly:

"To the extent that accounts owing to the Muruk Lodge at Mendi are outstanding and are lawfully payable by the State, on behalf of the Department of Justice, and have remained unpaid at the date of this order for a period in excess of four weeks, I order that the said accounts be paid within seven days of the date of this order."

Order accordingly

________________

Lawyer for the State: Public Prosecutor.