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CHAPTER 18 – THE VILLAGE COURTS

18.1 INTRODUCTION

The Village Courts of Papua New Guinea fall within s 172 of the Constitution. Since their inception, the Village Courts have played a vital role in the justice system of Papua New Guinea, providing access to justice for a significant portion of the population. The more formal courts of the country are inaccessible to many Papua New Guineans and, in many cases, are inappropriate to the types of disputes that go before Village Courts. Although most Village Courts are located in outlying rural areas, they are also found in and around cities and settlements.

There are approximately 1,000 Village Courts across Papua New Guinea. These courts place the administration of justice largely in the hands of people in the communities in which the disputes arise.

The Village Courts, like the District Courts, are courts of statutory jurisdiction. They exist only pursuant to statute, and have only those powers that are expressly granted by statute. The primary source of statutory jurisdiction is the Village Courts Act. The Constitution also imposes important limitations on the jurisdiction of the Village Courts, just as it does on other courts in Papua New Guinea.

Decisions made in the Village Courts may substantiate a plea of autrefois convict, autrefois acquit or res judicata, both in higher courts and in other Village Courts. In other words, a final decision in a Village Court represents the completion of a matter and precludes someone from later raising the same dispute in another court. The only exception to this is where an indictable offence is charged and is brought in another court after the same subject matter has been adjudicated upon in a Village Court. An earlier decision in a Village Court with respect to the same matter is not a bar to it proceeding in a higher court.

This chapter contains a brief description of some of the important features that distinguish the Village Courts from other courts in Papua New Guinea. This is followed by an examination of the ways that Magistrates of the District Courts are likely to come into contact with the Village Courts. This includes some suggestions and guidelines for how Magistrates should discharge their duties in relation to the Village Courts.

18.2 UNIQUE CHARACTERISTICS OF VILLAGE COURTS

18.2.1 Community orientation

It could be said that the primary role of formal courts is to provide for the adjudication of disputes in accordance with the laws of the country. However, the primary role of the Village Courts has a different emphasis. The primary role of the Village Courts is to ensure peace and harmony in the communities in which they operate: Village Courts Act, s 57. This is significant, in that it moves the emphasis of the role of Village Courts away from a winner/loser determination of disputes, and allows Village Court Magistrates to take account of a larger group of people. This may involve compromise in a way that is acceptable, not just to the parties to a dispute, but also to the wider community.

18.2.2 Custom

Another important feature of the Village Courts is the extent to which they are given jurisdiction over matters of custom. Section 57 of the Village Courts Act provides:

18.2.3 No lawyers

In the Village Courts, lawyers are not allowed to represent parties. This is in contrast to most other courts in Papua New Guinea, where parties are entitled to be represented by a lawyer if they wish. It might be viewed as a way to keep the formal justice system at a distance and allow the Village Courts to be conducted as people’s courts.

18.2.4 Court personnel

Village Court personnel are likely to be well acquainted with the customary practices of the community in which they perform their duties. They generally come from the areas in which particular courts are located. They are appointed taking into account their recognised roles as prominent members of their communities and their knowledge of local customs and traditions. It is unusual for Village Court Magistrates to have a great deal of formal legal training. They are not judicial officers as defined by the Constitution. This contrasts with Judges and Magistrates in other courts who do have formal legal training but may not have extensive knowledge of local custom. However, Village Court personnel are subject to prosecution for offences relating to their office, as are persons who hold judicial office: Village Courts Act, s 102. Village Peace Officers and Village Court Clerks are liable for prosecution for offences relating to members of the police force and members of the public service respectively.

The lack of legal training of Village Court personnel might serve to promote the operation of the Village Courts as village-based and custom-oriented institutions, responsive to the circumstances of the village and free from many of the formal practices of other courts. It does not excuse a Village Court from conducting its proceedings in accordance with the principles of fairness and natural justice.

18.2.5 Evidence and procedure

The rules of evidence and procedure in Village Courts are flexible. Section 59 of the Village Courts Act provides:

18.2.6 Mediation

Village Courts are obliged to attempt the resolution of disputes first by way of mediation. The requirement is mandatory. Section 53 of the Village Courts Act provides:

It is arguable that a Village Court that proceeds directly to a contested hearing, without attempting mediation, acts without jurisdiction. This does not appear to have been tested.

Although mediation may be attempted in relation to disputes in the District, National or Supreme Courts (mediation is required in relation to some matters, for instance, matters under the Adultery and Enticement Act), mediation in the Village Courts is integral to their existence, and its application is wider than in other courts.

18.2.7 Group orders

Groups of people who would otherwise have no legal personality, and therefore would have no standing as parties in another court, may be recognised as parties in the Village Court. Section 98 of the Village Courts Act provides that a Village Court Magistrate may, for the purpose of determining who may be a party, recognise a number of persons who have a common interest. Further, a Village Court Magistrate may determine in what manner the group should be represented in the Village Court. However, such a group may not be the subject of a criminal conviction in the Village Court.

An order against a recognised group has effect (s 100) as an order against each member of that group, except where the Village Court orders otherwise or where it would be contrary to recognised custom.

18.2.8 Joint sittings

In particular circumstances, two Village Courts may join forces and hold a joint sitting where the dispute or parties in question cover more than one Village Court area. A decision to hold a joint sitting must be made by agreement of the Chairpersons of the respective courts or, if there are no Chairpersons, by the Village Court Magistrates. Also, a joint sitting may be initiated on the directions of a Supervising Magistrate or at the request of a Peace and Good Order Committee.

18.2.9 Uniformity of civil and criminal proceedings

The Village Courts have been given the ability to mix criminal and civil proceedings in ways that other courts cannot. Section 78 of the Village Courts Act provides that, subject to any published procedures to the contrary, a Village Court, in any proceeding, may make orders pursuant to its criminal or civil jurisdiction. This gives a Village Court a degree of flexibility in the way it disposes of matters that come before it, and in the procedure for dealing with these matters. However, this flexibility is subject to the overall requirements of natural justice and compliance with the Constitution.

18.3 VILLAGE COURT ORDERS

The Village Courts Act restricts the powers of a Village Court in several important respects.

A Village Court may not make an order in relation to disputes involving:

(a)        a motor vehicle; or

(b)        the ownership of land,

and may not impose a term of imprisonment.

However, the Village Courts (Amendment) Act 2000 gives the power to impose a community work order in a wide range of circumstances.

In addition, the power to impose a fine has now been restricted: see 18.3.3.

18.3.1 Community work orders

A community work order is defined in s 1 of the Village Courts Act. The work that a person may be ordered to perform may be for a period not exceeding:

(a)        eight hours in a day;

(b)        six days in a week; or

(c)        a total period of six months.

Conditions, including supervision, may be included in a community work order. A community work order should specify the work to be done and, if possible, the work should benefit a person who is aggrieved in relation to the original matter.

Failure to comply with a community work order is an offence pursuant to s 63.

18.3.2 When a community work order may be imposed

18.3.3 Consequences of failure to comply with a community work order

Failure to comply with a community work order is an offence. A person convicted of an offence may be fined a sum not exceeding K50 for each week of work not performed: Village Courts Act, s 63.

A fine must be endorsed by a District Court Magistrate, pursuant to s 64, for it to have any effect: see 18.5.

18.3.4 Failure to obey order for payment of compensation, debt or damages

Where a community work order is made for failure to obey an order for the payment of compensation, debts or damages (see above), the order does not operate as a satisfaction of the compensation, debts or damages that are owed. Where a failure to pay an order for compensation, debts or damages is wilful and without reasonable excuse, it may result in a community work order: Village Courts Act, s 62(2).

However, it is always open to a person in whose favour an order for payment of compensation, debt or damages is made to take steps to enforce the order, regardless of whether non-payment is made wilfully and without reasonable excuse, or whether a community work order has been made. The way for such a person (judgment creditor) to proceed is to apply for an order for execution under s 62(2).

An order for execution is of no force and effect unless and until a District Court Magistrate endorses it.

18.3.5 Giving effect to orders for execution and fines

For an order for payment of a fine or an order for execution to have any effect, it must be endorsed by a Magistrate. Section 64 of the Village Courts Act provides the criteria for a Magistrate to consider in relation to the endorsement of a fine. Section 65 provides identical criteria in relation to an order for execution.

18.4 RELATIONSHIP OF MAGISTRATES WITH THE VILLAGE COURTS

The role of District Court Magistrates in the affairs of the Village Courts is limited, but is important to the effective functioning of the Village Courts.

When approaching their duties in relation to the Village Courts, Magistrates should be aware of the balance that the Village Courts are required to maintain. On the one hand, they are expected to adhere to custom, work towards the peace and harmony of the community, remain flexible and apply mediation. On the other hand, Village Courts are subject to the Constitution and must (particularly in cases where mediation fails) adhere to the principles of natural justice.

In practice, cross-examination is often conducted indirectly through the presiding Magistrate. Instead of asking an opposing witness questions directly, a party may ask the Magistrate to ask the question. This practice preserves parties’ rights, while at the same time minimising the potential for flare-ups between parties, and interminable cross-examination.

18.5 ENDORSEMENT OF VILLAGE COURT ORDERS – FINES AND ORDERS FOR EXECUTION

A District Court Magistrate is given the responsibility of deciding whether or not to endorse a Village Court order for payment of a fine (Village Courts Act, s 64) or for execution (s 65).

Since every valid order for execution or a fine in the Village Court always follows on an earlier order (which is allegedly not complied with), it is also necessary, in answering the above question, to look at the validity of not one, but two orders. These are:

(1)        the order for fine or execution; and

(2)        the first order made, either for compensation or performance of community work, which has resulted in the order for a fine or for execution.

The fairness of the Village Court proceedings that resulted in each of the above orders is an important consideration: see 18.4. For instance, a party being subjected to the order must have been given the opportunity to prove that he or she had a reasonable excuse for not complying with the original order.

The jurisdiction to make the original order is also an important consideration. For instance, in the case of an order for compensation or repayment of debt or damages, a consideration of s 45 (which incorporates s 46 orders) is required. These sections limit the scope of an order for compensation, damages or the repayment of a debt, to an amount not exceeding, in cash or in value, the sum of K1,000, or to compensation relating to bride price, custody of children or death in such amount as the Village Court considers just: see 18.3.

Although Village Courts are no longer able to make orders for imprisonment, two National Court cases, in relation to the endorsement of Village Court orders for imprisonment, are illustrative of matters that District Court Magistrates ought to be mindful of in considering whether to endorse a Village Court order for imprisonment. These cases demonstrate the effects of endorsing a Village Court order without ensuring that the orders made by a Village Court were within its jurisdiction.

In the case of In the Matter of Kabia Maris and in the Matter of Nalik Village Court [1994] PNGLR 314, a Village Court issued orders for imprisonment of a man for a civil debt. In that case, two warrants for imprisonment were endorsed, despite the fact that there were serious defects in relation to each. The first warrant was defective because the defendant was not given an opportunity to deal with the issue of whether failure to pay the fine was without reasonable cause. Further, the imprisonment did not take into account part payment of the fine that had been made by the defendant. The second warrant was ostensibly made in relation to compensation. It was defective because no amount of compensation was specified in the original order. The Village Court had acted without jurisdiction in relation to both orders, and the orders should not have been endorsed.

In the case of Lina Mark [1995] PNGLR 234, a woman was ordered to be imprisoned, despite the fact that no hearing had been held to determine whether the original compensation order had been complied with. The woman had not been given an opportunity to explain whether she had reasonable cause for not paying the order for compensation. The Village Court had, therefore, acted without jurisdiction. Its order should not have been endorsed.

If a District Court Magistrate, in considering a Village Court order for payment of a fine or an order for execution, finds that it should not be endorsed, then the Magistrate is obliged, by s 75(4) of the Village Courts Act, to exercise the power of review: see below.

18.6 ENFORCEMENT OF FINES AND ORDERS FOR EXECUTION

Where a District Court Magistrate endorses an order imposing a fine or an order for execution, the order takes effect and may be enforced. The enforcement of these orders is no longer a matter for the Village Courts. Section 64 of the Village Courts Act stipulates that the provisions of the District Courts Act apply with respect to fines, and s 65 of the Village Courts Act provides that the provisions of the District Courts Act apply in relation to orders for execution: see Chapter 20.

18.7 APPEALS AND REVIEWS

18.7.1 Time for appeal

Appeals from Village Court decisions are made to the District Court. An appeal can be commenced within three months of the date of the order being appealed against. A District Court Magistrate has a discretion to allow an extension of the time to appeal up to 12 months from the date of the order that is being appealed.

18.7.2 Involvement of Village Court Magistrates

Section 89 of the Village Courts Act requires that the Magistrate who is hearing the appeal against, or making the review of, a Village Court decision, must appoint two or more Village Court Magistrates to preside with him or her at the appeal or review. The Village Court Magistrate who made the original order is eligible for this role. Where the appointed Village Court Magistrates, for whatever reason, fail to sit on the appeal or review, the District Court Magistrate conducting the appeal or review may proceed alone: s 90.

Where the appointed Village Court Magistrates do preside at an appeal or review, their role is to advise the Magistrate hearing the matter on custom and other relevant matters. They have no power to make a decision or govern the conduct of the appeal or review.

18.7.3 Procedure

The procedure for conducting an appeal or review is similar to that for a hearing in the Village Court. Lawyers are not permitted to represent parties at an appeal. Section 90 of the Village Courts Act provides that a Magistrate conducting an appeal, or hearing a review, may “receive such evidence (if any) and make such enquiries” as he or she considers necessary. Parties have a right to be present and to call evidence and make submissions. Relevant custom is to be applied in the determination of the appeal.

18.7.4 Types of orders

Section 92 of the Village Courts Act gives three options to a Magistrate hearing an appeal:

1.         Confirm original order: One option is to confirm the original order being appealed against. This must be done unless the Magistrate is satisfied that:

(a)        the Village Court that made the order was not properly constituted;

(b)        a party was absent at the original hearing, and the party’s absence is not excused under s 79 of the Village Courts Act;

(c)        a party was not given a reasonable opportunity to present his or her case;

(d)        the Village Court exceeded its jurisdiction or powers; or

(e)        a Village Court Magistrate who presided at the original hearing had a substantial interest in the matter such that there was a miscarriage of justice: s 92(2).

In any event, where the lapse of time (from the events constituting the subject matter of the original complaint or charge) or failure of an aggrieved party to appeal earlier would result in injustice, a Magistrate conducting the appeal or review shall confirm the original order.

2.         Quash the original order: This would be appropriate where, on appeal, it is established that the Village Court that made the original order acted without jurisdiction or beyond its jurisdiction.

3.         Order that Village Court rehear matter: Where a Magistrate conducting a review or hearing an appeal does not confirm or quash the original order, that Magistrate may order that the matter be dealt with again by the Village Court. When a matter is remitted to the Village Court, a Magistrate may provide directions to the Village Court to assist the Village Court in curing any defect which marred the earlier proceedings: s 92(1)(c). The option of ordering that the Village Court rehear a matter would be appropriate where the Village Court hearing was not conducted in accordance with the principles of natural justice, to the prejudice of the appealing party.

18.7.5 Records and further review

A Magistrate who conducts a review or hears an appeal must make a record of his or her decision and reasons, and forward the record to the Provincial Supervising Magistrate. The Provincial Supervising Magistrate may, in turn, conduct a further review of the matter. The Provincial Supervising Magistrate has the same powers as the Magistrate who heard the appeal or conducted the initial review.

18.8 SUPERVISION OF VILLAGE COURTS

A District Court Magistrate may be appointed as a Provincial Supervising Magistrate or a Deputy Provincial Supervising Magistrate: Village Courts Act, s 15. In such a role, a Magistrate will be called upon to take a supervisory role in relation to the Village Courts.

Effective supervision will bring to light difficulties or problems in the operation of the Village Courts. It is also an opportunity to informally provide guidance and instruction to Village Court personnel where it is needed. There is no formal procedure for supervision, and different circumstances may call for different approaches. However, it is necessary that, in all dealings with the Village Court in a supervisory role, a Supervising Magistrate maintains a professional detachment from the people and matters that are being supervised, while at the same time attempting to be as constructive as possible in dealing with the Village Court and its personnel.

The respect of the community is essential for the effective operation of a Village Court. Therefore, in supervising, a Magistrate should be mindful of ways that the particular Village Court enhances or diminishes the respect of the community by the way it operates, and should advise accordingly.

There is no closed list of matters that come within the scope of a Supervising Magistrate’s or Deputy Supervising Magistrate’s duties. When supervising a Village Court, one should be familiar with all the provisions of the Village Courts Act. In addition to the Village Courts Act, a Supervising Magistrate should be familiar with the personnel and infrastructure of the Village Court or courts being supervised. The following headings outline some specific matters that should be considered by a Supervising Magistrate.

18.8.1 Constitutional rights

Village Courts must operate in accordance with the Constitution.

It is important, in exercising supervisory duties, to be particularly alert to ways in which the Village Courts may have acted inconsistently with constitutional provisions. The following is a basic checklist of some of provisions of the Constitution that a supervising Magistrate ought to have in mind when supervising a Village Court:

·           Section 37: Rights on arrest, detention and charge by a Village Court;

·           Section 42: Right to liberty;

·           Section 43: Freedom from forced labour;

·           Section 44: Freedom from arbitrary search and seizure;

·           Section 45: Freedom of conscience, thought and religion;

·           Section 46: Freedom of expression;

·           Section 47: Freedom of assembly and association;

·           Section 48: Freedom of employment;

·           Section 49: Right to privacy;

·           Section 51: Freedom of information;

·           Section 52: Freedom of movement;

·           Section 53: Protection from unjust deprivation of property.

18.8.2 Rules of natural justice and procedure generally

Section 59 of the Constitution incorporates the rules of natural justice into the underlying law of Papua New Guinea. Since the Underlying Law Act came into force in 2000, these rules must be applied only in accordance with the provisions of that Act. See 25.6.4 for an explanation of how this statute must be referred to in judgments. In any event, where appropriate in accordance with the Underlying Law Act, the rules of natural justice comprise the following basic rules of fairness:

·           the right to be informed of a claim or charge;

·           the right to be given an opportunity to make an answer to the claim or charge;

·           the right to question an opposing witness; and

·           the right to be judged by a person with no interest in the outcome of a case.

Section 79 of the Village Courts Act provides further statutory precision to these principles in respect of the entitlement of parties to be present at Village Court proceedings.

18.8.3 Records

Section 84 of the Village Courts Act requires that, as far as practicable, a Village Court shall keep records of its proceedings. A Village Court Magistrate, Village Court Clerk or a Deputy Village Court Clerk must certify the records as correct, and when so certified, those records are prima facie evidence of the matters set out in them.

A Supervising Magistrate must be aware of the practical difficulties that Village Court personnel sometimes face in relation to record keeping. In many Village Courts, protection of records from the weather and from possible theft or destruction by parties or others is a real concern. A locked room or container should be made available for Village Court records. Unless circumstances require otherwise, records should always be kept in the same place. More than one person should be aware of where the Village Court records are kept at all times.

Many Village Court procedures have forms associated with them. Village Courts sometimes do not have a ready supply of the required forms. In such circumstances, a photocopy of a form may be used. If there are no photocopies, an unofficial form, containing all the required information and drafted by Village Court officials, may be used. Village Court officials should be made aware that the forms are important, not because of the stationery on which they are printed, but because of the information they contain about the parties and proceedings to which they relate.

A Supervising Magistrate should be aware of the needs of a Village Court in relation to records and forms, and should do everything possible to supply Village Courts with proper forms or photocopies of forms.

Section 110 of the Village Courts Act makes it an offence to alter the records of a Village Court or to wilfully damage or record information incorrectly in Village Court records.

18.8.4 Custom

In addition to the formal records that are required by statute, a Village Court can assist in the overall development of the underlying law of Papua New Guinea by recording customs that affect its decisions. The Underlying Law Act requires Magistrates to address the particular matters relating to the application of the underlying law when rendering a judgment: see 25.6.4.

18.8.5 Women

Although the equal rights of women are covered in the Constitution, a Supervising Magistrate should take special care to determine whether women are treated differently from men. If so, the question of whether there has been a breach of the Constitution arises. A Supervising Magistrate should be sensitive to the sometimes-conflicting need to maintain local custom, and the need to ensure that everyone who comes into contact with the Village Courts is treated in accordance with their constitutional rights. Where custom and the Constitution conflict, the Constitution takes priority. For instance, although it may be consistent with local custom to order that a woman returns to her husband against her will, such an order is unconstitutional.

18.8.6 Children

While it is common for Children’s Court and District Court hearings involving the interests of children to be held in camera, many Village Court hearings involving the custody of children are held in open court, often before the entire village. A Supervising Magistrate should be mindful of the adverse effects that a fully public hearing can have on the wellbeing of a child, and should advise a Village Court accordingly.

18.8.7 Conflict of interest

The right to be judged by a person who has no conflict of interest in the outcome of the case is a basic right falling within the principles of natural justice. Section 82(2) of the Village Courts Act states that a Village Court Magistrate who has a substantial interest in the subject matter of a dispute is not eligible to sit as a member of the Village Court. Section 82(2) does not say that the Village Court Magistrate should have no interest. The fact that Village Court disputes are adjudicated within a village setting, where collective as well as individual interests are recognised, and where it is to be expected that interests will be tightly woven together, makes it impractical to expect that a Village Court Magistrate will have no interest whatsoever.

18.8.8 Case flow

A Supervising Magistrate should, in addition to talking with Village Court officials, examine the records of the Village Court. These records should reveal whether the cases that come before the court are being heard within a reasonable time after the complaint is made or the charge is laid in the Village Court. Also, cases must not be dealt with so quickly that parties do not have an adequate opportunity to prepare or to arrange for the attendance of witnesses.

18.8.9 Referring matters from Village Court to another court

A Supervising Magistrate should also be mindful of s 97 of the Village Courts Act, which provides for the transfer of proceedings (which may be within the jurisdiction of a Village Court) from one Village Court to another court (either District or Village). This may be appropriate where the issues in dispute are technical, or where the Village Court Magistrates do not have the confidence or expertise to deal with a particular matter. It may also be appropriate where the Village Court Magistrates have a substantial interest in the outcome of a case or where one or more of them should be available as witnesses rather than as judges of a matter. A transfer should normally not take place until after mediation has been attempted pursuant to s 53.

18.8.10 Conduct of Magistrates

There have been instances where Village Court Magistrates take enforcement matters into their own hands. This has involved improperly selling the property of a judgment debtor (see Chapter 20) and purchasing that property at less than fair market price. While this practice may not be widespread, a Supervising Magistrate should be mindful of the potential for it and related practices to take place.