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SCR No 2 of 1989; Re Village Courts Act (Ch 44) [1988-89] PNGLR 491 (28 November 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 491 - SCR No 2 of 1989; Re Village Courts Act (Ch44)�

[1988-89] PNGLR 491

SC374

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 2 OF 1989 SPECIAL REFERENCE PURSUANT TO SECTION 19 OF THE CONSTITUTION REFERENCE BY THE PRINCIPAL LEGAL ADVISER RE VILLAGE COURTS ACT (CH NO 44)

Waigani

Kidu CJ Kapi DCJ Bredmeyer Los Hinchliffe JJ

27 October 1989

28 November 1989

INFERIOR COURTS - Village Courts - Jurisdiction - Power to order imprisonment - Offence of default in payment of damages or fine created - Scale of imprisonment prescribed - Power valid - Power not in breach of constitutional right to liberty - Power not in breach of constitutional protection of law - Village Courts Act (Ch No 44), ss 21(3), 31, 33 - Constitution, ss 37(2), (21), (22), 42(1)(b) and (c).

CONSTITUTIONAL LAW - Fundamental rights - Liberty of person - Protection of law - Imprisonment by Village Courts - Offence of non-payment of compensation or damages - Powers of imprisonment not in breach of constitutional rights - Village Courts Act (Ch No 44), ss 21(3), 31, 33 - Constitution, ss 37(2), (21), (22), 42(1)(b) and (c).

The Village Courts Act (Ch No 44), s 31, provides that it is an offence for a person to fail to obey a Village Court order for payment of compensation, damages or a fine, and prescribes a scale of imprisonment not exceeding one week for each K10 of compensation, damages or fine not paid. Under s 33, an order for imprisonment may be made to give effect to s 31.

The Constitution, s 42(1), relevantly provides:

�No person shall be deprived of his personal liberty except:

(a)����� ...

(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.�

TheConstitution, s 37(2), (21) and (22), relevantly provides:

�(2)��� Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

(21)��� Nothing in this section:

(a)����� derogates Division III.4 (principles of natural justice); or

(b)����� affects the powers and procedure of village courts.

(22)��� Nothwithstanding Subsection 21(b) the powers and procedures of village courts shall be exercised in accordance with the principles of natural justice.�

Held

Where a Village Court makes an order for imprisonment under s 33 of the Village Courts Act following the commission of an offence under s 31 of that Act, the order for imprisonment does not lawfully deprive a person of his personal liberty in a manner which contravenes s 42(1) of the Constitution, whether the order arises out of a cause of action in contract, tort or customary obligation.

(Obiter) Notwithstanding the open-ended prescription of the penalty for the offence created by s 31 of the Village Courts Act, because s 37(21) of the Constitution otherwise excludes the �powers� of Village Courts from the provisions of s 37(2), the powers are valid.

Cases Cited

SCR No 1 of 1981; Re Inter-Group Fighting Act, 1977 [1981] PNGLR 151.

Special Reference Under s 19 of the Constitution

This was a special reference by the Principal Legal Adviser under s 19 of the Constitution querying the constitutional validity of s 31 and s 33 of the Village Courts Act (Ch No 44).

Counsel

G Garo, for the Principal Legal Adviser for the negative argument.

E Kariko, for the affirmative argument.

Cur adv vult

28 November 1989

KIDU CJ KAPI DCJ BREDMEYER LOS HINCHLIFFE JJ: The Village Courts Act (Ch No 44) permits imprisonment for failure to obey a village court order relating to payment of compensation, damages or a fine. This is a reference by the Principal Legal Adviser under s 19 of the Constitution querying the constitutional validity of that provision. The question referred to us is as follows:

�Where a Village Court makes an order under s 33 of the Village Courts Act following the commission of an offence under s 31 of that Act, is the order for imprisonment, if it involves the performance or enforcement of a customary obligation, in conflict with s 42(1)(b) or s 42(1)(c) of the Constitution?�

Sections 31 and 33 of the Village Courts Act provide:

�31���� Non-payment of fine, etc

A person who fails, without reasonable excuse (proof of which is on him), to obey an order of a Village Court for the payment of compensation, damages or a fine is guilty of an offence.

Penalty: Imprisonment for a term not exceeding one week:

(a)����� for each K10.00 or part of K10.00 unpaid; or

(b)����� where compensation, damages or a fine is ordered otherwise than in money for each K10.00 or part of K10.00 of the value of the compensation, damages or fine not rendered.�

�33���� Order for imprisonment

An order of a Village Court for imprisonment under this Act shall be in the prescribed form, and pending the endorsement of the order under Section 34 the convicted person shall be held in such custody, or shall be released on such terms, as is ordered by the Court.�

Section 42(1)(b) and (c) of the Constitution provides as follows:

�42���� Liberty of the person

(1)����� No person shall be deprived of his personal liberty except:

(a)����� ...

(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;�

We also quote s 37(2), (21) and (22) of the Constitution. That section is headed Protection of the Law:

�(2)��� Except subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

...

(21)��� Nothing in this section:

(a)����� derogates Division III.4 (principles of natural justice); or

(b)����� affects the powers and procedure of village courts.

...

(22)��� Notwithstanding Subsection 21(b) the powers and procedures of village courts shall be exercised in accordance with the principles of natural justice.�

It can be seen that s 42(1)(b) of the Constitution allows a person to be deprived of his personal liberty in the execution of the sentence or order of a court �in respect of an offence of which he has been found guilty�. The legislature, in s 31 of the Village Courts Act, expressly provided that a person who fails to obey an order of the Village Court for the payment of compensation, damages or a fine �is guilty of an offence�. Clearly, prima facie, s 31 of the Village Courts Act complies with s 42(1)(b) of the Constitution. Mr Kariko, who argued against the constitutional validity of s 31 and s 33 of the Village Courts Act, argued that s 31 did not properly create an offence. He said that, because civil debts in courts of higher jurisdiction are not enforced by imprisonment, s 31 does not properly create an offence. The meaning of the word �offence� is discussed in SCR No 1 of 1981; Re Inter-Group Fighting Act, 1977 [1981] PNGLR 151 at 154, in a joint judgment of Kidu CJ, Greville-Smith and Andrew JJ, as any act or omission in consequence of which a person may be imprisoned either immediately or upon non-payment of a fine. We agree with that definition. Clearly Parliament has wide powers to designate any conduct an offence, the key feature of it being that failure to observe that conduct results in a fine or a term of imprisonment. We consider that Parliament in s 31 of the Village Courts Act has validly created an offence enforceable by imprisonment and that the section is valid under s 42(1)(b) of the Constitution.

That being so, it is not really necessary for us to answer the second part of the question which is where a Village Court makes an order under s 33 of the Village Courts Act following the commission of an offence under s 31 of that Act, is the order for imprisonment, if it involves the performance or enforcement of a customary obligation, in conflict with s 42(1)(c) of the Constitution? It is not necessary for us to consider that because under s 42(1) of the Constitution �no person shall be deprived of his personal liberty except �� and there follow a number of exceptions set out in subs (a) to (h). Each subs concludes with the word �or�; thus, if the law in question comes within any of the eight subsections, it is valid. In this case, an order for imprisonment made under s 33 of the Village Courts Act following the conviction of an offence under s 31 of the Act, is valid under s 42(1)(b) of the Constitution, as we have said above, and hence does not violate the liberty of the person given by s 42(1) of the Constitution.

As we have said, it is not necessary for us to consider whether s 31 and s 33 of the Village Courts Act come within the exception of s 42(1)(c) of the Constitution, but since we have been asked for our views, we will give an answer by way of obiter dicta. If a person fails without reasonable excuse to obey an order of a Village Court for the payment of compensation or damages � we can ignore the non-payment of a fine in this discussion � he is guilty of an offence. It does not matter whether the order for the payment of compensation or damages arose out of a customary, or common law, cause of action. If he fails to obey that order without reasonable excuse, he is guilty of an offence and, as such, he may be imprisoned under s 33 of the Act. That imprisonment is constitutionally valid under s 42(1)(c) of the Constitution, provided the order is made to secure the fulfilment of an obligation other than a contractual obligation. So, if the cause of action, whether it is customary or common law, is based in contract, then any order to enforce it will be not valid under s 42(1)(c). But it is rather pointless to examine this question because all orders for imprisonment made under s 33 of the Village Courts Act for disobedience to a court order under s 31 of that Act are valid under s 42(2)(b) of the Constitution, whether the order arose out of a cause of action in contract, tort or anything else.

The question referred to us is badly phrased because it asks us if those two sections of the Village Courts Act are in conflict with s 42(1)(b) or s 42(1)(c) of the Constitution. The more relevant question is whether those sections of the Act are in conflict with s 42(1) of the Constitution, that is, do they deprive a person of his personal liberty in an unlawful way? We would rephrase the question and answer it as follows:

�Where a Village Court makes an order for imprisonment under s 33 of the Village Courts Act following the commission of an offence under s 31 of that Act, that order does not unlawfully deprive a person of his personal liberty given under s 42(1) of the Constitution.�

The question referred to us does not mention s 37 of the Act but it is relevant nevertheless. We have already quoted subs (2), (21) and (22) of the section. It might be thought that s 31 of the Village Courts Act could be challenged under s 37(2) of the Constitution because, although s 31 defines an offence, the penalty is not well prescribed in that it is unlimited. It is true that s 31 provides a maximum scale of imprisonment of one week for each K10 or part of K10 not paid, but because the Village Courts have unlimited jurisdiction in questions of brideprice and compensation for death (under s 21(3) of the Act) there is no limit to the amount of imprisonment which can be imposed. For example, if the order was for the payment of K20,000 brideprice the imprisonment period for failing to obey that order could be 2,000 weeks which is 38 years 5 months. It might be argued that such an open-ended scale of punishment does not really prescribe the penalty as required by s 37(2). But the powers of the Village Courts are put beyond doubt by subs (21) of s 37 which provides �nothing in this section ... (b) affects the powers and procedures of Village Courts� (emphasis ours). In other words, notwithstanding the open-ended prescription of the penalty of the offence created by s 31 of the Village Courts Act, nothing in s 37, including in s 37(2), of the Constitution affects the powers of the Village Courts. Subsection (22) goes on to provide that notwithstanding subs (21)(b), the powers and procedures of the Village Courts must be exercised in accordance with the principles of natural justice.

Question so answered

Lawyer for the negative case: A J Tadabe, Secretary for Justice.

Lawyer for the affirmative case: E Kariko, Public Solicitor.