N4249

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE PNG WATER BOARD PURSUANT TO SECTION 225 OF THE CONSTITUTION

RE: LACK OF WATER SUPPLY TO MOUNT HAGEN NATIONAL COURT

Mount Hagen: Makail, J
2011: 07th & 08th April

CONSTITUTION - National Court - Administration of justice - Supply of water to National Court premises - Responsibility of - Failure of - Hindrance to dispensation of justice - Constitution - Sections 154,155, 156, 158, 163, 164, 172 & 225.

No cases cited:

Counsel:

Mr Jack Moro in person 

RULING

08th April, 2011

1. MAKAIL, J: Since returning from court circuit to Mendi on Monday 04th April 2011, I noticed there was no water supply to the Judges' Chambers of the Mt Hagen National Court. On inquiring with the staff as to whether there had been water supply to the Judges' Chambers, I was informed, the lack of water supply to the Judges' Chambers was only one part of the problem. A bigger problem was that, the entire premises which houses the Judges' Chambers, Magistrates' Chambers, the Court Rooms, Cell block, Administration, Court Reporting Services and Library had no water supply. The report I received was further confirmed when there was no water supply between Monday 04th April and Thursday 07th April 2011.

2. On 07th April 2011, when the Court convened to hear a criminal matter fixed for trial, I enquired with the Court attendant if there was water supply and if there was none, how long Mt Hagen National Court had been without water. The response was, there had been no water supply since last month (March) and if water was supplied, it was irregular.

3. May I observe here the problem of lack of water supply to Mt Hagen National Court premises is chronic. It is also a recurring problem because this is not the first time Mt Hagen National Court premises has had no water. There have been numerous instances in the past where Mt Hagen National Court premises had been left without water. The Court staff, both the National Court and the Magisterial Services had been made to suffer for a long time because someone has not done his or her job to ensure that there is water supply to the premises. Each day of the working week, the National Court has visitors. There are lawyers, parties, witnesses and the public who come to the National Court for court cases and use the abolition blocks that the National Court provides. If there is no water supply there and they are closed, how will they relieve themselves?

4. This poses a serious threat to the health and safety of the Judges, Magistrates and staff. The chances of contracting serious diseases such as typhoid, cholera, dysentery and hepatitis are very high. 

5. Someone has to be held accountable for the misery and inconvenience the Judges, Magistrates, the Court staff, lawyers, parties, witnesses and visitors have been put through. It is for these reasons that you as the Branch Manager of the Papua New Guinea Water Board in Mt Hagen had been ordered to appear before the Court to explain why there is no water supply to the National Court premises and provide a solution to the problem as soon as practicable. You and I cannot deny the importance of water. Water is one of the essential elements of life. People use water to drink, cook food, wash and of course relieve themselves. There is a saying, "where there is water, there is life; no water, no life." I am sure you are aware of its importance and I need not say more.

6. However, the importance of getting you here and getting you to fix this problem is this, under section 158 of the Constitution, the judicial authority of the People of this country is vested in the National Judicial System. Section 158 states:

"158. Exercise of the judicial power.

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice."

7. The National Judicial System is responsible for the administration of justice in this county along with the Minister for Justice and Law Officers. The Law Officers are the Principal Legal Advisor to the National Executive Council, the Public Prosecutor and the Public Solicitor: see section 156 of the Constitution. 

8. Section 155 of the Constitution provides that, the National Judicial System consists of the Supreme Court, the National Court and such other Courts as are established under section 172 of the Constitution. Section 155 states:

"155. The National Judicial System.

(1) The National Judicial System consists of –

(a) the Supreme Court; and

(b) the National Court; and

(c) such other courts as are established under Section 172 (establishment of other courts).

(2) The Supreme Court –

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court; and

(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

(3) The National Court –

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where –

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) 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.

(5) In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case.

(6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System."

9. The National Court is established under section 163 of the Constitution. Section 163 states:

"163. Establishment of the National Court.

(1) A National Court of Justice is hereby established.

(2) The National Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court."

10. Under section 164 of the Constitution, the National Court consists of the Chief Justice, Deputy Chief Justice and Judges. It states:

"164. Composition of the National Court.

The National Court shall consist of –

(a) the Chief Justice; and

(b) the Deputy Chief Justice; and

(c) subject to Section 165(2) (Acting Judges) not less than four or more than six other Judges, or such greater number as is determined by or under an Act of the Parliament."

11. So as you can see, the National Court is a very important institution in this country. It is a constitutional institution. It is made up of Judges and they are charged with enormous responsibility in dispensing justice to the people of this country. The National Court as an institution deserves the highest respect from the National Government, governmental bodies, public institutions and of course, the people. The respect must not only be by word of mouth but also by deed. As I said earlier, the judicial authority of the people is vested in the National Court and is exercised by the National Court. 

12. When there is no water supply to the Mt Hagen National Court premises, and the National Court does not sit, how does one expect the National Court to perform its constitutionally mandated function? In my view, the failure to provide water supply to the Mt Hagen National Court premises is a hindrance to the dispensation of justice to the people of this country, more particularly the people of Western Highlands, Southern Highlands, Enga and Chimbu Provinces.

13. Where the National Government or other governmental bodies, and public office-holders and institutions like in this case, the Papua New Guinea Water Board fail to ensure that the National Court premises has water supply, the National Court has power under section 225 of the Constitution to order the appropriate governmental body, public office-holder or institution to ensure that services are provided to the National Court. Section 225 states:
 
"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."

14. By this very provision of the Constitution, the Papua New Guinea Water Board is obliged to provide water to the Mt Hagen National Court but has failed. Before I make any order under section 225 of the Constitution, I am going to give you as the Branch Manager of this public institution the opportunity to explain why there is no water supply to the Mt Hagen National Court premises and the solution to the problem.

Ruling accordingly.
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