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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MP NO 659 0F 2006
IN THE MATTER OF A COMPLAINT
OF UNLAWFUL AND UNREASONABLE DETENTION BY
ROSA JACK
Kimbe: Cannings J
2006: 21 July
REASONS FOR DECISION
HUMAN RIGHTS – right to liberty of the person – Constitution, Section 42 complaint of unlawful and unreasonable detention in correctional institution – duty of National Court to inquire into complaint – duty to order release in prescribed circumstances.
LOWER COURTS – Village Courts – whether a Village Court has power to order imprisonment of person who fails to comply with order for compensation – Village Courts Act 1989, Division V.9 (enforcement).
A Judge conducted an official visit of a jail and heard a complaint from a young woman with a one-month-old baby who had recently been imprisoned by a Village Court for five months for failure to pay K200.00 compensation. The complainant was brought before the National Court the next day and represented by a lawyer who argued that the Village Court had no power to order imprisonment in such circumstances.
Held:
(1) There is considerable confusion about whether the Village Court has power to imprison a person for failure to comply with its orders to pay compensation.
(2) The National Parliament made a law in 2000 to remove the power of imprisonment from the Village Court. However, for some reason that law was not certified by the Speaker and has not commenced operation.
(3) In the present case the Village Court did not act contrary to the Village Courts Act in sentencing the complainant to five months in prison; though the constitutionality of Section 74 of the Village Courts Act, under which the Village Court made the order for imprisonment, is open to doubt.
(4) However, in the circumstances there was sufficient material before the National Court to draw the conclusion that there had been a denial of natural justice.
(5) In addition, the imprisonment for five months of a young woman carrying a one month old baby, for failure to comply with an order to pay K200.00 compensation over a relatively trivial dispute, was harsh and oppressive; not warranted by and disproportionate to the requirements of the case; and was not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. The order for imprisonment and the way in which it was given effect were proscribed acts under Section 41 of the Constitution.
(6) The complainant's detention was therefore unlawful and orders were made under Section 42(5) of the Constitution for her immediate release from custody.
Cases cited
The following cases are cited in the judgment:
Application by Benetius Gehasa (2005) N2817
Brian Curran v The State [1997] PNGLR 230
In the matter of complaints of unlawful and unreasonable detention by Michael Walge and Others; Re Conditions of Detention at Bialla
Police Lock-Up, West New Britain Province (2006) N3022
Nowra No 8 Pty Ltd v Kaka Swokin [1993] PNGLR 498
Raz v Matane [1986] PNGLR 38
Re Kabia Maris [1994] PNGLR 314
Re Kaka Ruk [1991] PNGLR 105
Re Kopa Kaipia (1989) N709 (M)
Re Lina Mark [1995] PNGLR 234
Re Moki Nikints [1988-89] PNGLR 164
Re Ricky Yanepa [1988-89] PNGLR 166
Re Thesia Maip [1991] PNGLR 80
Re Wagi No [1991] PNGLR 84
Re William Rumbia [1999] PNGLR 145
Re Yongo Mondo (1989) N707(M)
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314
SCR No 2 of 1989; Section 19 Reference by the Principal Legal Adviser re the Village Courts Act (Chapter No 44) [1988-89] PNGLR 491
SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329
Tom Longman Yaul v The State (2005) SC803
INQUIRY INTO COMPLAINT
This is an inquiry into a complaint of unlawful and unreasonable detention by a person imprisoned by an order of a Village Court.
Counsel
G Linge, for the complainant
21 July, 2006
1. CANNINGS J: This judgment gives my reasons for ordering the immediate release from jail of a young woman, carrying a one-month-old baby, who had been sentenced to five months imprisonment by the Village Court for failing to pay K200.00 compensation.
2. On Thursday 20 July 2006 I conducted a Visiting Justice visit of Lakiemata Jail, near Kimbe. One of the five detainees in the female compound was Rosa Jack, a young woman carrying a small baby. I was told that she had been imprisoned the previous day, acting on a warrant of commitment issued by the Kimbe Urban Area Village Court. She was sentenced to five months imprisonment with hard labour.
3. I asked to see her Correctional Service file. The warrant of commitment stated that she had failed without reasonable excuse to obey a Village Court order to pay K200.00 compensation to another woman, Marilyn David.
4. Rosa Jack was carrying a small baby. She had given birth less than a month ago. She and the baby had been arrested by the police the previous day when they were at the Kimbe market. They were detained in the police lock-up then transported to Lakiemata Jail (which is a half-hour drive from Kimbe). She did not have a chance to tell her husband and she did not know if he knew where she was.
5. I asked that Rosa Jack be brought to the National Court the next day and indicated that I would deal with the matter as a complaint of unlawful and unreasonable detention under Section 42(5) of the Constitution.
COMPLAINTS OF UNLAWFUL OR UNREASONABLE DETENTION
6. Section 42(5) (liberty of the person) of the Constitution states:
Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—
(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and
(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit. [Emphasis added.]
7. Section 42(5) is an enforcement provision that bolsters the constitutional right to personal liberty, the nature and extent of which is prescribed by Sections 42(1), (2) and (3).
8. Section 42(5) works in this way:
(See generally Application by Benetius Gehasa (2005) N2817, National Court, Cannings J; In the matter of complaints of unlawful and unreasonable detention by Michael Walge and Others; Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022, National Court, Cannings J.)
NATIONAL COURT HEARING
9. The complainant, Rosa Jack, was brought before me in the National Court at Kimbe on Friday 21 July 2006. I asked for a lawyer to represent her and Mr G Linge of Linge & Associates, of Kimbe, offered his services pro bono (for the public good, free of charge).
10. Mr Linge said that the complainant had been taken to the Village Court by another woman, Marilyn David, who alleged that the complainant had not repaid a debt. The complainant maintains that the debt was K1.50, which she had borrowed at the market to buy a piece of chicken. The complainant says that she had the money to pay but that an argument broke out with Marilyn. She was summoned to appear before the Village Court and ordered to pay K200.00. That happened in February 2006. She was given a month to pay but she did not have the money to pay, so the matter was taken to the District Court.
11. The complainant says that she appeared before the Kimbe District Court, constituted by Magistrate Mrs G Coppard, who dismissed the case. She says that she has not been back before the Village Court. As far as she knew, the case against her had been dismissed. She was oblivious to the resurrection of the matter in the Village Court and was not present when the Village Court ordered that she be imprisoned.
12. The police arrested her at the market. She and her daughter were taken to the police lock-up and then to Lakiemata Jail.
13. The above is the account of the events given by Mr Linge, who had taken instructions from the complainant. I did not insist on the complainant giving evidence as I felt I could decide the case on the legal issue of whether the Village Court had any power of imprisonment.
14. Mr Linge submitted that the Village Court has no power to imprison anybody. What happened in this case was a breach of the Village Courts Act and a violation of the constitutional right of the applicant not to have her personal liberty taken away from her except by means of a law that complied with Section 42(1) of the Constitution.
15. Section 42(1) (liberty of the person) is the law that confers the right on all persons in the country to personal liberty. It states:
No person shall be deprived of his personal liberty except—
(a) in consequence of his unfitness to plead to a criminal charge; or
(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or
(c) by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or
(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or
(e) for the purpose of bringing him before a court in execution of the order of a court; or
(f) for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or
(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or
(h) in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—
(i) his care or treatment or the protection of the community, under an order of a court; or
(ii) taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);
(i) in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.
16. Mr Linge submitted that none of the eight circumstances prescribed by Section 42(1) applied in this case. In particular, Section 42(1)(b) did not apply as the complainant had not been found guilty of any offence. Section 42(1)(c) did not apply as, though the complainant allegedly failed to comply with an order of a court, the Village Courts Act did not provide for imprisonment as a sanction.
EXTEMPORE DECISION
17. I made an extempore decision (an oral decision, made immediately). I upheld Mr Linge's submission that the Village Court had no power of imprisonment and concluded that the complainant's imprisonment could not be justified under any of the provisions of Section 42(1) of the Constitution. I held that her imprisonment was unlawful.
18. I also held that it was an unreasonable detention, given that the dispute that arose in the Village Court appeared to be over a trivial matter – an unpaid sum of K1.50 for a piece of chicken – which had been blown out of proportion to the extent that a young woman carrying a one-month-old baby had been incarcerated for five months. On the face of it there was a denial of natural justice as the order of imprisonment was made without a separate hearing. Added to that were the circumstances in which the complainant was arrested and imprisoned without giving her the opportunity to contact her next of kin.
19. Since giving that decision I have become aware that the version of the Village Courts Act on which Mr Linge based his submission – and on which I based my decision – is incorrect. The Act does give a power of imprisonment to a Village Court. However, I do not intend to change my decision as I think there is considerable doubt about the constitutionality of that power of imprisonment and, in addition, there are other reasons that justify my decision.
20. I will in the rest of this judgment explain why there is confusion about whether a Village Court can impose a prison sentence and give the other reasons that justify my extempore decision.
CONFUSION ABOUT WHETHER A VILLAGE COURT CAN SENTENCE ANYONE TO PRISON
21. In 2000 the National Parliament made a law called the Village Courts (Amendment) Act 2000, which was intended to remove the power of imprisonment from Village Courts. However, this Act was for some reason not certified by the Speaker and it has never commenced operation.
The "black book" version of the law
22. Also in 2000, the legal publishing company, Thomson Legal & Regulatory Group Asia Pacific Ltd, published as part of the Access to Laws project a compilation of legislation in a 2,177-page book entitled Selected Laws of Papua New Guinea. In "the black book", as it is commonly known, is the Village Courts Act 1989. Division V.9 of the Act (enforcement) appears at pages 2046 to 2050. The publishers have included a footnote to Division V.9 that states:
Division V.9 repealed and replaced by the Village Courts (Amendment) Act 2000, Section 4.
23. That footnote is incorrect as the Amendment Act it refers to has never commenced operation. I became alerted to this error when I was writing this judgment and checked the electronic version of the Village Courts Act published by NiuMedia Pacific Pty Ltd in pngInLaw. It has a warning notice regarding the non-certification of the Amendment Act at the start of the Village Courts Act. With the assistance of the National Court Librarian, I have confirmed through the Office of Legislative Counsel and the Bills and Papers Branch of the National Parliament that the Village Courts (Amendment) Act has never commenced operation. This means that the "black book" version of the law is wrong. When Mr Linge made his submission in court he relied on the "black book". And so did I when I made my extempore decision.
24. In the "black book" version of the law, failure without reasonable excuse to comply with an order to pay compensation under Section 45, is an offence, the penalty for which is a community work order for a period not exceeding six months. If a person fails to obey a community work order, the penalty is a fine of up to K50.00 for each week of work not performed. The order for payment of a fine has to be endorsed by a District Court magistrate and then it is deemed to be an order of the District Court. If the fine is not paid, the District Court – but not the Village Court – has the power to order imprisonment. (See District Courts Act Chapter No 40, Sections 167, 168 and 201.) The 2000 Amendment Act was clearly intended to remove the power of imprisonment from the Village Court.
The unamended version of the law
25. By contrast the unamended Village Courts Act 1989 – the correct and current version of the law that is in pngInLaw – purports to give a power of imprisonment to the Village Court. The relevant provisions are Sections 45 and 74.
26. Section 45 (orders for compensation, damages and debt) states:
Subject to Section 46 and to Part VI, a Village Court may make an order for—
(a) the payment of compensation or damages; or
(b) the repayment of a debt,
to an amount not exceeding, in cash or in value, the sum of K1,000.00.
27. Section 74 (order to pay compensation etc) states:
(1) Where—
(a) under Section 45 a Village Court orders a person—
(i) to pay compensation; or
(ii) to pay damages; or
(iii) to repay a debt; and
(b) the person fails, without reasonable excuse (proof of which is on him), to obey the order,
the Village Court may—
(c) subject to Subsection (2), order the person to serve a term of imprisonment not exceeding one week—
(i) for each K10.00 or part of K10.00 unpaid; or
(ii) where the sum is ordered to be paid otherwise than in money—for each K10.00 or part of K10.00 of the value of the sum not rendered; and
(d) subject to Subsection (3) and Section 75, make an order for execution against the goods and chattels of the person liable to make the payment of the amount due.
(2) A term of imprisonment imposed under Subsection (1)(c) shall not exceed 6 months.
(3) An order for execution shall be in the prescribed form.
(4) Imprisonment imposed under this section does not operate as a satisfaction or discharge of the amount due on an order and, notwithstanding such imprisonment, a Village Court may make an order for execution against the goods and chattels of the person so imprisoned.
28. In the present case the Village Court seems to have relied on the above provisions to arrive at the decision to sentence the complainant to five months imprisonment. She was ordered to pay K200.00 compensation under Section 45(a). The Village Court apparently decided that she failed without reasonable excuse to obey the order and invoked the power in Section 74(1)(c)(i) to sentence her to one week in prison for each K10.00 of compensation. Thus:
29. There is nothing mathematically wrong with the calculation so at first glance the Village Court made a decision that was not contrary to the Village Courts Act. However, I have doubts about the constitutionality of Section 74.
Constitutional issues
30. Section 74 does not appear to be a law that complies with Section 42(1) of the Constitution. It does not make failure to comply with an order for compensation an offence; so it is not a law that falls within Section 42(1)(b) of the Constitution. It appears to provide for imprisonment as a direct way of enforcing a court order made to secure fulfilment of a contractual obligation (in the present case, the contractual obligation arising from the complainant borrowing K1.50 to buy a piece of chicken); and to that extent it offends against Section 42(1)(c) of the Constitution.
31. The authority of the Village Court to enforce its orders by imprisoning a person found to have disobeyed the orders was tested in SCR No 2 of 1989; Section 19 Reference by the Principal Legal Adviser re the Village Courts Act (Chapter No 44) [1988-89] PNGLR 491. The Supreme Court (Kidu CJ, Kapi DCJ, Bredmeyer J, Los J, Hinchliffe J) held that if a law makes it an offence to disobey a Village Court order, the law can allow the Village Court to imprison someone found guilty of such an offence. Such a law – which existed in the form of Sections 31 and 33 of the former Village Courts Act Chapter No 33 – is permitted by Section 42(1)(b) of the Constitution.
32. The practice of the Village Court imprisoning people as a way of enforcing civil or contractual obligations – as distinct from imprisonment as a penalty for commission of criminal offences – was called into question by Woods J in the National Court on a number of occasions. See, for example, Re Yongo Mondo (1989) N707(M); Re Kopa Kaipia (1989) N709 (M); Re Moki Nikints [1988-89] PNGLR 164; Re Thesia Maip [1991] PNGLR 80; and Re Kaka Ruk [1991] PNGLR 105, in which his Honour said profoundly:
Jails in Papua New Guinea are for criminals.
33. They are not designed to be used as sanctions for family problems or small civil disputes. I agree with Woods J, especially when viewing the plight of the complainant in the present case. The current version of the Village Courts Act does not make it an offence to disobey a Village Court order for payment of compensation. It simply says, in Section 74, that failure to obey the order means that the Village Court can impose a prison sentence. The current Act appears to have a 'missing link', in that it does not make it an offence to disobey the Village Court's order. For that reason I doubt its constitutionality.
34. The law is confusing due to the failure of the 2000 Amendment Act to commence operation and the doubts that exist as to the constitutional validity of the present Act. However, it appears that the present Act does allow a Village Court, through Section 74, to imprison a person who has disobeyed a compensation order. The imprisonment of the complainant in the present case was not contrary to Section 74; and to that extent was not unlawful. It was, however, unlawful for other reasons.
WHY WAS THE COMPLAINANT'S IMPRISONMENT UNLAWFUL?
35. There are two reasons.
Denial of natural justice
36. There was a breach of the principles of natural justice as the complainant was not present when the Village Court decided to imprison her. She was not given a right to be heard on why she ought not to go to jail. This is a fundamental principle of fairness that applies to all judicial proceedings that was reaffirmed by the Supreme Court in a recent Kimbe case, Tom Longman Yaul v The State (2005) SC803 (Salika J, Mogish J, Cannings J). The National Court has quashed a number of decisions of Village Courts sentencing people to prison terms for that reason. For example: Re Wagi No [1991] PNGLR 84 (Woods J); Re Kaka Ruk [1991] PNGLR 105 (Woods J); Re Kabia Maris [1994] PNGLR 314 (Doherty J); Re Lina Mark [1995] PNGLR 234 (Doherty J); Re William Rumbia [1999] PNGLR 145 (Sevua J).
Proscribed acts
37. The treatment given to the complainant was a violation of her constitutional right to be protected from proscribed acts under Section 41 of the Constitution.
38. Section 41 (proscribed acts) states:
(1) 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.
(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.
39. Section 41 says that everyone in the country has the right to be protected from any act that is:
40. This right exists even if the act complained of is done under a valid law. The act can be rendered unlawful whether it is committed by, for example, a public official, a company, a government department, a court, an employer or any other person or body. The act can be a legislative, executive or judicial act or a 'private' act.
41. The right conferred by Section 41 is not one that falls within the same bundle of human rights or basic rights that are enforceable under Section 57 of the Constitution. It is a right enforceable under Sections 23(2) and 155(4) of the Constitution. (See the majority view of Kidu CJ and Kapi DCJ in SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329; and the strong dissenting opinion of Amet J.)
42. However, I saw no bar to applying Section 41 in the course of an inquiry under Section 42(5) of the Constitution, as Brunton AJ did in Re Ricky Yanepa [1988-89] PNGLR 166. Section 41 has been given a wide application in a number of other cases, not being Section 42(5) inquiries, eg SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314, Supreme Court, Kidu CJ, Kapi DCJ, Bredmeyer J, Kaputin J, McDermott J; Raz v Matane [1986] PNGLR 38, National Court, McDermott AJ; Nowra No 8 Pty Ltd v Kaka Swokin [1993] PNGLR 498, National Court, Los J; and Brian Curran v The State [1997] PNGLR 230, Supreme Court, Amet CJ, Kapi DCJ, Los J, Injia J, Sawong J.
43. I have applied Section 41(1) to the present case and found that the burden of showing that it applies has been amply discharged by the complainant. A young woman who was found by a Village Court to owe K200.00 to another woman as compensation for an unpaid debt of K1.50 for a piece of chicken has been sentenced to five months in prison. She was denied a right to be heard. She was arrested and detained without being taken before a court. She had a one-month old baby in her arms.
44. The order of the Village Court that she be sentenced to five months imprisonment and the manner in which that order was given effect were proscribed acts. They were harsh and oppressive and not warranted by and disproportionate to the requirements and circumstances of the particular case and not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. The five-month sentence and the treatment given to the complainant were unlawful acts under Section 41(1) of the Constitution. It follows that her detention was also unlawful. I was therefore not satisfied for the purposes of Section 42(5) of the Constitution that her detention was lawful and I was obliged to order her release from custody.
CONCLUSION
45. I am satisfied that my extempore decision of 21 July 2006 should not be disturbed. I made the right decision though I had the wrong version of the Village Courts Act before me. The imprisonment of the complainant was unlawful and she was entitled to be immediately released from jail.
46. This apparently simple case has thrown up many important issues about the power of Village Courts to imprison people who for whatever reason fail to comply with their orders. It is imperative that the confusion arising from the Speaker's failure to certify the Village Courts (Amendment) Act 2000 be resolved. If the Act remains uncertified and it does not commence operation, some of the bodies authorised by Section 19 of the Constitution to refer questions of constitutional interpretation to the Supreme Court (in particular the Ombudsman Commission, the Public Solicitor or the Principal Legal Adviser) should consider doing just that.
ORDERS
47. By this judgment I have confirmed and given further reasons for making the following orders at Kimbe on 21 July 2006:
Ordered accordingly.
____________________________
Linge & Associates: Lawyers for the Complainant
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