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State v Officer [1982] PGLawRp 435; [1982] PNGLR 308 (11 August 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 308 - The State v Officer-in-Charge of Wabag Corrective Institution and the Magistrates of the Kundis Village Court; Ex Parte Peude Kinakope�

[1982] PNGLR 308

SC232

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

S.C.R. NO. 6 OF 1981 IN THE MATTER OF THE STATE

V

OFFICER-IN-CHARGE OF THE WABAG CORRECTIVE INSTITUTION AND THE MAGISTRATES OF THE KUNDIS VILLAGE COURT

Waigani

Kidu CJ Kapi DCJ Andrew J

11 August 1982

INFERIOR COURTS - Village courts - Jurisdiction - Criminal offences - Jurisdiction where child offender - Village Courts Act 1974, s. 25(a).

INFANTS AND CHILDREN - Criminal proceedings - Jurisdiction of village courts.

(Andrew J., dissenting): A village court has jurisdiction in respect of offences prescribed for the purpose of s. 25(a) of the Village Courts Act 1974, where the alleged offender is a child and the offence is committed within the area for which the village court was established and outside the area of any Children�s Court.

Cases Cited

In the matter of WW (an infant) (Unreported National Court judgment No. 267 of 17th November, 1980).

Reference

This was the reference of a question of law made by the National Court in proceedings seeking orders absolute for writs of habeas corpus and certiorari. The question referred is set out at the beginning of the reasons for judgment of Kidu C.J. hereunder.

Counsel

L. Gavara-Nanu, to argue the affirmative case.

A. Amet, to argue the negative case.

R. Gunson, for the Principal Legal Adviser to the National Executive.

Cur. adv. vult.

11 August 1982

KIDU CJ: The National Court sitting at Wabag on 23rd October, 1981, reserved for this Court the following question:

�Has a village court jurisdiction in respect of offences prescribed for the purpose of s. 25(a) of the Village Courts Act 1974, where the alleged offender is a child and the offence was committed within the area for which the Village Court was established and outside the area of any Children�s Court?� (Section 25(a) is renumbered s. 22(a) in Ch. 44 of the Revised Laws.)

Pende Kinakope, a child aged 14 years, was adjudged guilty by the Kindis village court of taking a young goat belonging to another. He killed the goat and ate it, so it was alleged before the National Court. He was fined K100 (beyond the K50 maximum fine a village court is empowered to impose) and ordered to pay the fine the same day, i.e. 17th September, 1981. He failed to pay the fine and was ordered to be imprisoned for ten weeks. On 18th September, 1981, this order was endorsed by the Wabag District Court under s. 34(1) of the Village Courts Act.

On 23rd October, 1981, Mr. Kopunye of the Public Solicitor�s Office applied (under O.82 r. 2 of the Rules of the National Court) for orders absolute for writs habeas corpus and certiorari. These applications were made on the basis that Pende was imprisoned illegally. The case In the Matter of WW (an infant), Unreported National Court judgment N. 267 of 17th November, 1980, was cited as authority supporting the applications. The National Court, in that case, ruled that a village court had no power to entertain cases involving children charged with offences prescribed under s. 22 of the Village Courts Act. I reproduce the relevant passages of this judgment:

�Children�s Courts have been set up throughout the country under the provisions of the Child Welfare Act. In many cases however, the village courts are not operating in the same area covered by the Child Welfare Act. In those cases where they are purporting to be exercising jurisdiction in such circumstances, I consider they are clearly acting without authority or a legal basis to do so. Where a Children�s Court area has been declared, not even a court of summary jurisdiction is permitted to deal with offences committed by persons under 16 (see s. 37(1) of the Child Welfare Act). So far as criminal cases are concerned, the village courts are limited to a number of minor offences as listed in reg. 3 of the Statutory Instrument No. 41 of 1974. The jurisdiction of course is purely based on statute and the courts cannot operate outside such basis.

In those cases where no Children�s Court has been established for the area in which village courts are functioning, it is clear that the only court which may deal with such offenders is the District Court or the local court for that area: Section 37(4) of the Child Welfare Act reads:

�Where no Children�s Court has been established to exercise jurisdiction under this Act over a particular area, a Court of Summary Jurisdiction may exercise in that area the jurisdiction of a Children�s Court under this Act as if it were a Children�s Court under this Act.�

By definition under s. 5 of the Child Welfare Act a court of summary jurisdiction �means a District Court or Court of Petty Sessions�, using the old description current before the introduction of the present District Courts Act for the whole of Papua New Guinea in 1964. When local courts were introduced in 1964 as well, they were given jurisdiction equivalent to courts of summary jurisdiction and any reference in an earlier Act to a District Court or a court of summary jurisdiction shall �be deemed to include a reference to a local court� or a local court magistrate (see s. 13(2) of the Local Courts Act 1963 and also s. 287 of the District Courts Act 1963).

The Legislature has even seen fit to provide for emergency situations where a Children�s Court magistrate cannot deal with a matter but a District Court magistrate is available (s. 36(5)). No amendment has been passed to provide for village court magistrates to have a like jurisdiction. In my view this is significant and conducive to the proper administration of justice.

It may be thought that s. 30 of the Village Courts Act was subject to an interpretation which resulted in the village court not being subject to the provisions and restrictions imposed by the Child Welfare Act. Section 30(1) reads in part:

�In exercising its jurisdiction under this Division� (Civil and Criminal Jurisdiction) �a village court is not bound by any law other than this Act that is not expressly applied to it ...�

The short answer however to any contention that the village court has jurisdiction over children despite the fact that it is not a court of summary jurisdiction by virtue of this section, is to be found in the opening words �In exercising its jurisdiction�. In other words, it must have a jurisdiction to exercise in the first place. For example, it cannot deal with a murder or rape because that is not one of the offences listed in reg. 3 of the Village Court Regulations. Because of the existence of a prior Act which has not been repealed either explicitly or by implication by anything contained in the Village Courts Act, the jurisdiction to deal with children for criminal offences still rests in Children�s Courts or when they do not exist, then a District Court or a local court. The village court was never granted such jurisdiction and therefore there is nothing for it to exercise.�

In that case the learned judge did not have the benefit of arguments by counsel. The judgment was made �ex parte�. This Court has had the benefit of well prepared arguments on the law from both the Public Solicitor in person and counsel for the Principal Legal Adviser, Mr. Gunson.

JURISDICTION OF CHILDREN'S COURTS

The Children�s Courts derive their powers from the Child Welfare Act (Ch. 276 of the Revised Laws of Papua New Guinea). The relevant provisions of this Act are:

N2>32.���� POWERS OF CHILDREN�S COURTS

(1)����� Subject to this Act, a Children�s Court:

(a)����� shall, in respect of all offences committed by children, exercise the powers and authorities possessed by a District Court; and

(b)����� may (where a child is charged with an indictable offence punishable by death or imprisonment for life), hear and determine the charge in a summary manner in accordance with the provisions of this Act; and

(c)����� shall hear and determine all complaints and applications under this Act.

(2)����� Where a Children�s Court deals summarily with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, the court may:

(a)����� impose a penalty of:

N5>(i)������ a fine not exceeding K100; or

N5>(ii)����� imprisonment for a term not exceeding six months,

and, in addition to or instead of any penalty imposed under subparagraph (i) or (ii) make an order in respect of the child as if the child had been declared to be an incorrigible or uncontrollable child under this Act; or

(b)����� without proceeding to conviction:

N5>(i)������ if the child is under the age of 14 years, and it appears to the court that punishment inflicted by a guardian of the child, or some other person, would be the most suitable penalty in the circumstances�adjourn the hearing for that purpose; or

N5>(ii)����� order a guardian or the guardians of the child to give security for the good behaviour of the child until the child attains the age of 16 years, or during such shorter period as the court thinks sufficient; or

N5>(iii)���� adjourn the hearing for such period as the court thinks proper to enable the child:

N6>(a)����� to do such acts or things for the purpose of remedying or diminishing any damage done or injury or loss caused by the child; or

N6>(b)����� to undergo such discipline or instruction for the purpose of his reform or rehabilitation, as the court, on the recommendation of a welfare officer, sees fit to order, and on being satisfied that suitable punishment has been inflicted, or the security has been given or the acts or things have been performed, or the discipline or instruction has been undergone, as the case may be, dismiss the charge and give a certificate of dismissal.

(3)����� An order under ss. 2(a) takes effect:

(a)����� where a sentence of imprisonment is awarded - immediately after the imprisonment is served; or

(b)����� where no sentence of imprisonment is awarded - on the making of the order, as if the order had been made under s. 41.

(4)����� Where a court other than a Children�s Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, that court may exercise, the powers of a Children�s Court under ss. (2), and an order made in the exercise of those powers has effect as if it were an order of a Children�s Court.

(5)����� Where a court other than a Children�s Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a person over the age of 16 years but under the age of 21 years, the court may, where it thinks it for any reason desirable:

(a)����� treat the person as a child for the purpose of this Act; and

(b)����� exercise in relation to him, the powers of a Children�s Court under ss. (2) and an order made in the exercise of those powers has effect as if it were an order of the Children�s Court.�

N2>33.���� JURISDICTION OF DISTRICT COURTS IN CHILD WELFARE MATTERS

(1)����� Subject to this section, after the establishment of a Children�s Court no District Court has jurisdiction within the area of a Children�s Court in respect of matters within the jurisdiction of the Children�s Court.

(2)����� Subsection (1) does not abridge or prejudice:

(a)����� the ministerial powers of justices in cases of committal for trial; or

(b)����� the powers of justices to:

N5>(i)������ take an information, complaint or application; or

N5>(ii)����� issue a summons; or

N5>(iii)���� grant, issue or endorse a warrant; or

N5>(iv)���� admit to bail.

(3)����� Where no Children�s Court has been established to exercise jurisdiction under this Act over a particular area, a District Court may exercise in that area the jurisdiction of a Children�s Court under this Act as if it were a Children�s Court.

The above provisions do not directly confer jurisdiction on Children�s Courts over children in cases of summary offences. One must go to the District Courts Act to determine this. Section 28 of this Act provides:

N2>28(1)� Where, by a law in force in the Territory or a part of the Territory:

(a)����� an offence is punishable on summary conviction or a person is made liable to a penalty or punishment or to pay a sum of money for an offence, act or omission; and

(b)����� the offence, act or omission is not an indictable offence, the matter may be heard and determined by a District Court in a summary manner under this Act.

N2>(2)����� Where, by a law in force in the State or a part of the State, jurisdiction is conferred on one or more magistrates to hear and determine proceedings in respect of an offence or to do an act or to exercise a power, that jurisdiction may be exercised by a court.

The Child Welfare Act then excludes District Courts from exercising criminal jurisdiction over children where Children�s Courts and District Courts co-exist in an area. There is no mention of village courts. The reason is, I think quite simple. The Child Welfare Act 1961 became operative on 13th April, 1962, whilst the Village Courts Act 1973 commenced operating on 5th December, 1974. The first village courts were established during 1975.

In my opinion there can be no assumption that the Child Welfare Act excludes the village courts from exercising criminal jurisdiction over persons under the age of 16 years (�children� hereon) for criminal offences prescribed under s. 22 of the Village Courts Act. That Act only excludes District Courts from dealing with criminal cases (summary offences or offences that may be dealt with summarily) where Children�s Courts co-exist in an area with District Courts.

The village courts criminal jurisdiction is quite distinct from the summary criminal jurisdiction of District Courts. A village court can only entertain criminal cases brought under its own Act (Village Courts Act), unlike District Courts and local courts which exercise the same criminal jurisdiction, and the Children�s Court which exercises (over children) the same criminal jurisdiction as District Courts (and local courts).

A criminal charge, brought under the Village Courts Act, can be entertained by a District Court, a local court or a Children�s Court if referred to it ... by a village court under s. 55 of the Village Courts Act.

The view that village courts have no jurisdiction over persons under the age of 16 years stems from the interpretation of s. 32 and s. 33 of the Child Welfare Act. But it has been shown that these provisions do not affect village courts. The fact that they create an exclusive jurisdiction as between Children�s Courts and courts of summary jurisdiction does not by implication exclude village courts.

JURISDICTION OF VILLAGE COURTS ACT

N1>1.������ Section 12 of the Village Courts Act provides:

N2>(1)����� Subject to this Act, a village court has jurisdiction:

(a)����� ...; and

(b)����� in criminal matters, as specified in subdivision 5C.

N2>2.������ Section 22

A Village Court has criminal jurisdiction:

(a)����� in respect of offences that are prescribed for the purposes of this section; and

(b)����� in respect of contraventions of or failures to comply with a Local Government Council rule that provides that an offence against it may be dealt with by a village court; and

(c)����� in accordance with Div. 6 and sections 15 and 62.

Nothing in these provisions bar village courts from dealing with cases involving children. No other provision in the Village Courts Act bars them from hearing criminal cases involving children. In fact s. 27 of the Act provides otherwise. It reads as follows:

N2>(1)����� In exercising its jurisdiction under this Division, a village court is not bound by any law other than this Act that is not expressly applied to it, but shall, subject to ss. (2) and to s. 26, decide all matters before it in accordance with substantial justice.

There is no question the s. 27 of the Act excludes other Acts if not applied to it. The Child Welfare Act does not affect the Village Courts Act.

In WW (an infant) (supra) Pratt J. said of s. 27:

�The short answer however to any contention that the village court has jurisdiction over children despite the fact that it is not a court of summary jurisdiction by virtue of this section, is to be found in the opening words �In exercising its jurisdiction�. In other words, it must have a jurisdiction to exercise in the first place ... Because of the existence of a prior Act which has not been repealed either explicitly or by implication by anything contained in the Village Courts Act, the jurisdiction to deal with children of criminal offences still rests in the District Court or a local court.

The village court was never granted such jurisdiction and there is nothing for it to exercise.�

With respect I do not see how the prior existence of the Child Welfare Act by that fact alone excludes the village courts from exercising criminal jurisdiction over children. It is true that nowhere in the Village Courts Act does it say specifically that a village court may exercise criminal jurisdiction over children under 16 years of age. Neither does it say it cannot exercise such jurisdiction.

If there is a hiatus in the law, and I say there is in this case, Parliament has the power to accommodate it.

For reasons I have expressed I would answer the question �Yes�.

KAPI DCJ: This matter came before Kearney Dep. C.J. (as he then was) at Wabag.

It was an application for writs of habeus corpus and certiorari. The events leading up to this application are set out in the judgment of the Chief Justice.

The application was based on the submission that the village courts do not have jurisdiction to deal with children. On this point, his Honour reserved a question of law for consideration by the Supreme Court. The question is:

�Has a village court jurisdiction in respect of offences prescribed for the purposes of s. 25(a) of the Village Courts Act 1973, where the alleged offender is a child, and the offence was committed within the area for which the village court was established, and outside the area of any Children�s Court?�

This case was reserved and argued before the Revision of Laws came into effect on 1st January, 1982. In my references to Statutes, I make reference to the old provisions.

The question is referred under s. 5(1) of the Supreme Court Act 1975, which is in the following terms:

�A judge or judges of the National Court sitting in the exercise of any jurisdiction, other than criminal, may reserve any case or any point in a case for the consideration of the Supreme Court, or may request any case or point in a case to be argued before the Supreme Court, and the Supreme Court may hear and determine any such case or point so reserved or directed to be argued.�

I note that under this provision a question may be reserved on any jurisdiction except on a criminal matter. This is different from s. 11 of the former Supreme (Full Court) Act in that any question could be reserved and criminal matters were not an exception. This point was not taken in this case. His Honour directed his mind to this when he said: �I assume that this review jurisdiction is not properly categorized as criminal.� This provision should be fully argued in future cases to determine the scope of this provision as far as criminal cases are concerned.

It has been argued that jurisdiction over children is given to the Children�s Court and that this is an exclusive jurisdiction given by the provisions of the Child Welfare Act. It has been argued that where a Children�s Court is not established for an area, that jurisdiction may be exercised by the courts of summary jurisdiction (see s. 37 of the Child Welfare Act). It is submitted that this section excludes the jurisdiction of the village courts. This argument is supported by In the Matter of WW (an infant) (supra).

On the other hand it has been argued that the village court has been given jurisdiction over children by the Village Courts Act and this jurisdiction is not affected by the provisions of the Child Welfare Act.

Both the District and the local courts have been granted criminal jurisdiction by the respective Acts. These jurisdictions are limited by the respective Acts. It is significant to state that these courts exercise their respective jurisdictions over all persons regardless of age. The same can be said of the village court in the exercise of its criminal jurisdiction. I approach the question reserved with the basic premise that all these courts have jurisdiction over children.

The question is, what is the effect of the Child Welfare Act 1961 (as amended) on the jurisdiction over children by the courts referred to above? We are here concerned with the village court.

The Children�s Courts are established under s. 31 of the Child Welfare Act. Their jurisdiction is set out under s. 36. It is in the following terms:

N2>36(1)� Subject to this Act, the Children�s Court:

(a)����� shall, in respect of all offences committed by children, exercise the powers and authorities possessed by a court of summary jurisdiction;

(b)����� may, where a child is charged with an indictable offence (other than homicide, rape or other offence punishable by death or imprisonment for life) hear and determine the charge in a summary manner in accordance with the provisions of this Act; and

(c)����� shall hear and determine all complaints and applications under this Act. (Emphasis mine)

Jurisdiction of Children�s Court under s. 36 is specified and relates to two categories only:

(a) Section 36(a)�Offences committed by children for which a court of summary jurisdiction has power and authority

Jurisdiction does not extend to offences for which a village court has jurisdiction nor does it extend to any offence for which any other court, other than courts of summary jurisdiction, has jurisdiction. This does not extend to indictable offences committed by children because that is dealt with under s. 36(b) of the Child Welfare Act. This section could not be interpreted to include offences for which village courts have jurisdiction because at the time the Child Welfare Act was passed there was no village court. When the Village Court Act was passed in 1974, s. 36 was not amended to extend the jurisdiction of the Children�s Court to include offences that come under the jurisdiction of the village court.

In my opinion, the Legislature did not do this for one reason. The village court system established under the Village Court Act 1974, is unique and different from what might be called the �Western Courts�. The village court system is the formal establishment of the traditional system of courts that existed in the traditional societies of Papua New Guinea. Some of the offences created under the Village Courts Regulation 1974 are peculiar to itself and cannot be found in the other jurisdictions. An example of this type of offence can be found under reg. 3(n)� failure to perform customary duties and obligations and reg. 3(o)� failure to comply with a direction of a village magistrate with regard to hygiene and cleanliness.

Village courts are primarily governed by their own provisions and custom. Other laws do not apply unless they are expressly applied to it (s. 30 of Village Courts Act). It is also not bound by technical rules of evidence (see s. 31 of the Village Courts Act). For these reasons, the Child Welfare Act (which can be referred to as a �western court�) has not been made expressly to apply to the Village Court system.

The Child Welfare Act can have no effect on the jurisdiction of the village court. However, there are offences under the Village Courts Regulation 1974 for which a village court has concurrent jurisdiction with other courts including the Children�s Court. Such offences are stealing under reg. 3(f). When dealing with such offences, the village court may in its discretion refer such offences to other courts. (See s. 58 of the Village Courts Act 1974.) If the village court is dealing with such an offence committed by a child it may refer the case to the Children�s Court and vice versa.

(b) Section 36(b)�In relation to indictable offences (except for those excluded) the Children�s Court has concurrent jurisdiction with the National Court

We are not concerned with this in this case. In relation to the exercise of jurisdiction of the Children�s Court, two situations may arise for consideration:

N2>(i)������ Where a Children�s Court is established for an area; and

N2>(ii)����� Where no Children�s Court is established in an area.

(i) Where a Children�s Court is established

Where a Children�s Court is established in an area, all courts of summary jurisdiction exercising jurisdiction over children cease to be exercised under s. 37(1) of the Child Welfare Act. This section does not affect the jurisdiction of the village court in that area. Where both these courts are exercising concurrent jurisdiction over such offences as stealing, by children in the same area, they may enjoy the relationship as is envisaged by s. 58 of the Village Courts Act 1974. Whereas if a child is charged with an offence for which the village court has exclusive jurisdiction then only the village court can deal with it.

(ii) Where no Children�s Court is established

Where there is no Children�s Court established for an area, the courts of summary jurisdiction in relation to children are not affected. That is to say, they continue to exercise their jurisdiction over children. However, at their discretion they may exercise the powers of the Children�s Court under s. 37(4) of the Child Welfare Act. The jurisdiction of the village court remains unaffected by this provision.

If the argument that the village court has no jurisdiction under s. 37(4) of the Child Welfare Act is accepted then there would be a gap in the law as far as offences committed by children under reg. 3(n) and reg. 3(o) of the Village Courts Regulations are concerned. Such offences do not come under the jurisdiction of the Children�s Court under s. 36(1) of the Child Welfare Act. I cannot accept this argument.

For these reasons I would not follow In the Matter of WW (an infant) (supra).

I would answer the question��Yes�.

ANDREW J: The circumstances which led to this matter being referred to the Supreme Court and the question referred are set out in the judgment of the Chief Justice.

Section 55 of the Constitution recognizes that all citizens have the same rights, privileges, obligations and duties but this does not prevent the making of laws for the special benefit, welfare, protection or advancement of particular groups of persons including children and young persons.

Such a law is the Child Welfare Act, Ch. 276 (�the Act�) whose particular purpose is the special welfare protection and advancement of children.

Under the Act, Children�s Courts have been set up throughout the country. Where a Children�s Court area has been declared, not even a District Court is permitted to deal with offences committed by persons under 16 years of age (See s. 33(1) of the Act).

Section 33(3) of the Act is as follows:

N2>33(3)� Where no Children�s Court has been established to exercise jurisdiction under this Act over a particular area, a District Court may exercise in that area the jurisdiction of a Children�s Court under this Act as if it were a Children�s Court.

It is true that the primary function of a village court is to ensure peace and harmony in the area for which it is established by mediating in and endeavouring to obtain just and amicable settlements of disputes: Village Courts Act, s. 19.

One could well imagine that in ordinary day to day life in the village there would be disputes involving children and for the Village Courts Act to achieve its stated objective, the village court would need to have jurisdiction over children. However, that cannot detract from the fact that jurisdiction to deal with children for criminal offences has been vested in Children�s Courts or when they do not exist, then in a District Court. The village courts have not been granted such jurisdiction.

In my view the Child Welfare Act is exclusive legislation as envisaged by s. 55 of the Constitution.

Where a Children�s Court is established for an area it has exclusive jurisdiction and not even a District Court is permitted to deal with offences committed by persons under 16 years of age (see s. 33(1) of the Act); subject however to the jurisdiction of the National Court which is a court of unlimited jurisdiction: Constitution, s. 166. Where no Children�s Court has been established for a particular area then the only court which may deal with such offenders is the District Court for that area. This follows from s. 33(3) of the Act. There has been no amendment passed to provide for village court magistrates to have a like jurisdiction.

Section 27 of the Village Courts Act reads in part:

�In exercising its jurisdiction under this division �(civil and criminal jurisdiction)� a village court is not bound by any law other than this Act that is not expressly applied to it. ...�

I am in agreement with Pratt J., in In the Matter of WW (an infant), (unreported Judgment N. 267), when he said in relation to the then s. 30 of the Act (now s. 27 as above in the Revised Laws) that:

�It may be thought that s. 30 of the Village Courts Act was subject to an interpretation which resulted in the village court not being subject to the provisions and restrictions imposed by the Child Welfare Act . ... The short answer however to any contention that the village court has jurisdiction despite the fact that it is not a court of summary jurisdiction by virtue of this section, is to be found in the opening words �In exercising its jurisdiction�. In other words it must have a jurisdiction to exercise in the first place. For example, it cannot deal with a murder or rape because that is not one of the offences listed in reg. 3 of the Village Court Regulations. Because of the existence of a prior Act which has not been repealed either explicitly or by implication by anything contained in the Village Courts Act, the jurisdiction to deal with children for criminal offences still rests in Children�s Courts or when they do not exist, then a District Court. The village court was never granted such jurisdiction and therefore there is nothing for it to exercise.�

The jurisdiction of the village court is based purely on statute and the courts cannot operate outside such basis. I cannot accept the argument that village courts, being the formal establishment of the traditional system of courts and dealing with customary issues and conflicts within the village, are for those reasons separate and distinct from the rest of our judicial system. The Constitution, s. 172, recognizes that an Act of Parliament could establish courts within the National Judicial System in addition to the Supreme Court and National Court and the Constitution, s. 172(2), recognizes that such courts might include courts intended to deal with matters primarily by reference to custom or in accordance with customary procedures, or both. In my opinion, the village courts are within the National Judicial System.

It is true that there are offences created under the Village Courts Regulation which are unique to the village courts and would fall outside any jurisdiction exercised by a Children�s Court or a District Court. But that alone does not mean that the Child Welfare Act has no effect on the Village Courts Act.

It is my view that the Child Welfare Act is exclusive as envisaged by the Constitution, s. 55, being a law for the special benefit, welfare, protection and advancement of children and that thereunder jurisdiction over children is vested exclusively in the Children�s Courts where such a court is established for an area and where no such court is established then it is vested exclusively in the District Court.

The Village Courts Act is directed to ensuring peace and harmony in the area for which it is established by mediating in and endeavouring to obtain just and amicable settlements of disputes. It does not explicitly or by implication repeal anything in the Child Welfare Act. It is silent on the question of jurisdiction over children.

In my opinion, the exclusive jurisdiction created by the Child Welfare Act prevails and the village court has no jurisdiction over children either where a Children�s Court is established for an area or where one has not been so established.

I would answer the question referred as �No�.

Question answered �Yes�.

Solicitor for the affirmative case: L. Gavara-Nanu, Public Prosecutor.

Solicitor for the negative case: A. Amet, Public Solicitor.

Principal Legal Adviser to the National Executive: Charles Maino-Aoae.