N267

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

IN THE MATTER of the Village Courts Act 1974

AND

IN THE MATTER of W.W. (an infant) presently in custody, and 3 others

CORAM: PRATT, J.

Monday, 17th November 1980

VILLAGE COURTS ACT - jurisdiction over children - Child Welfare Act not repealed - Village Court not a court of summary jurisdiction - orders and warrants relating to children held invalid. Circumstances of National Court Judge acting on his own initiative under the Constitution.

Legislations Cited:

Village Courts Act sections 48, 49, 56, 37, 30, 24, 34, 36.

Evidence Act section 92

The Constitution sections 36, 37, 57

Child Welfare Act sections 37, 5, 36

Local Courts Act section 13

District Courts Act section 287

Corrective Institutions Act section 16

17th November1980

KUNDIAWA, SIMBU PROVINCE 

PRATT, J.

During my present visiting justice inspection of the Barane/Barawagi Corrective Institution, I have again noticed a sizeable proportion of juvenile detainees – on this occasion just on 30 in number. Many of these detainees were obviously under 16 years of age and several in 12-14 years old range. On earlier visits this year I had located two who were obviously under 10. Some of these children have been dealt with by the District Court, the Local court or the Children' s Court. Some also were of an age when it would be possible to say they were over 16 years. I shall take up certain aspects of this problem with the Chief Magistrate. What concerns me at present is that, as always, a number of them were held under warrants issued out of the Village Courts. I have instructed that 4 of them be produced in court together with their warrants this morning. I have formed the view under section 92 of the Evidence Act that each of the detainees was under 16 and probably in the age-group which I set out hereunder:

Village Order No. 5439 - 13 years of age
Village Order No. 5440 - 14 years of age
Village Order No. 5441 - 15 years of age
Village Order No. 8445 - 15 years of age

It is a national disgrace that courts in this country are sending young children, some of them very young, to gaol for offences of a most trivial nature. This is particularly so when it is appreciated that most corrective institutions in Papua New Guinea do not have separate accommodation or sleeping quarters for juveniles, though many try to extemporize with whatever facilities they have. It seems to me that such treatment of children who are causing difficulties in the villages is bordering on the inhuman and is certainly cruel. I do not deny for one moment that some children can be very difficult and extremely trying. But if the only answer by the community is to put them in gaol, then it is a very sad reflection on the community itself and a standing indictment against any system of justice which would allow such sentences to be handed down.

Going to the present matters, we have the following:

Order No. 5439
Order No. 5440
Order No. 5441

These 3 children were apparently charged and convicted of stealing. It is not easy to determine the exact nature of the charge from the papers as they are not properly compiled.

Order No. 8445 - the charge is stealing, though the facts seem to indicate a break and enter. Unfortunately this detainee committed a further offence whilst in gaol and received a further months imprisonment cumulative on the month which he was already serving. I have therefore reduced the period imposed in the second warrant so that it expires on the date for the first warrant, namely 20th November 1980.

Under the Village Courts Act there is no appeal to the National Court or beyond, nor may any prerogative writ lie against action taken by a Village Court magistrate (sections 48, 49, and 56). An appeal may be lodged with a Local Court or a District Court magistrate, and such magistrates may on their own initiative initiate a review. I have yet to hear of any such appeals or reviews, but admittedly my knowledge of this area is very limited. Little, if any, public awareness seems to exist as to the functioning of the Village Courts, save in the village concerned. Before any order for imprisonment may take proper effect, it must be endorsed by a Local Court or District Court magistrate (section 37). I have no doubt whatever that in many instances such endorsements are made as a mere matter of course - a rubber stamping. In view of the wording of section 37(3) of the Act, this is apparently what the Legislature intended. I am puzzled as to why they bothered at all to introduce a section with such limited usefulness. This is just one of a number of features which illustrate that a full scale review of the structure and functioning of the Act is long overdue. I often wonder how many people realize that with the fine provision coupled with the compensation provision which can total a period of 40 weeks imprisonment, a person coming before a village court is stripped of every safeguard which he would enjoy before any other court, including legal representation, and left with only a presumption of innocence and an assurance that "substantial justice" must be done, whatever that means (see section 30 of the Village Courts Act and section 37(21)(b) of the Constitution). The consequences of failing to pay an award ordered by the court in bride price or compensation for death, however, are nothing less than terrifying. Theoretically, a Village Court could order a person to be kept in custody for any such amount it ordered under these heads at the rate of a week's goal for each K10.00 (see sections 24(3) and 34 of the Village Courts Act).

Returning however to the implementation of this Act for the purpose of imprisoning children, one blatant abuse is apparent in many of the cases I have examined this year. For example, compensation of K90.00 has been ordered against the child, plus a fine of K10.00 and on non payment the court will make an order of 10 weeks imprisonment. It is patently obvious that the child cannot pay the K100.00 but the child is clearly being used as a lever to get the money out of the parents. (Instances have been reported to me where the parents are not even in the village at the time of the hearing.) If the parents do not have the ready cash, or if they don't mind their child going to gaol, then in he goes.

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 section 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 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 section 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 section 13(2) of the Local Courts Act 1963 and also section 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 (section 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 section 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 & Criminal Jurisdiction) "a Village Court is not bound by any law other than this Act that is not expressly applied to it. . . . ."

That 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 my capacity as a National Court judge, I am ex-officio a Visiting Justice for all Corrective Institutions and police lock-ups under section 16 of the Corrective Institutions Act. The persons before me are currently serving terms of imprisonment by order of a Village Court and are clearly under the age of sixteen years. I have formed the view that in the light of the offences alleged against them and in view of the ages, such treatment is cruel and thus a breach of section 36 of the Constitution. This section comes within the subdivision entitled "Fundamental Rights". Further, I am also of the opinion that because they have been imprisoned without lawful authority, they have been denied protection of the law under section 37(1) of the Constitution and this protection is not taken away by section 37(21) because the Village Court does not have jurisdiction to deal with children. Although I have no evidence before me, I understand that there is no separate sleeping accommodation at Barawage Corrective Institution and my observations confirm that during daylight hours there is no separation between the prisoners. It is highly likely therefore that I would find a breach of section 37(19) of the Constitution dealing with separation of prisoners under voting age from other prisoners and on that basis alone would have authority to look into the causes of such breach of "Protection of the Law".

These sections of the Constitution then are the legal bases for making the present enquiry. It suffers from the considerable handicap that I have not been able to have assistance from counsel but I cannot deny a clear duty laid on the Court merely for that. I have acted on my own iniative in this case, as the Constitution permits me (section 57(1)), because letters written by me earlier in the year to those who might be regarded as interested parties have not yet borne fruit. Undoubtedly the matter is either being still examined or it was considered that no avenue was open to seek relief.

In saying that the treatment is cruel, I wish it to be crystal clear that I am not suggesting any impropriety or misconduct on the part of the Corrective's officers. Indeed, I have been impressed with their attitude to the children and I know that many of the officers themselves are concerned by the absence of proper facilities for juveniles. It is the use or abuse of a system which is what I consider cruel because of its application to children, together with the plain fact that it is cruel to imprison children, though the Legislature has given certain approved courts power to do so. The power to imprison children however, is a power which exercised only in the worst cases.

Under section 57(3) of the Constitution I am empowered to make all such orders and declarations as are necessary and appropriate.

I therefore ORDER and DECLARE as follows:

1. All fines and orders for compensation with their concomitant default provisions by Village Courts arising out of proceedings under sections 26 and 34 which relate to matters instituted before the Court under section 25 of the Village Courts Act and which relate to persons under the age of 16 years are invalid and of no force or effect. It follows that any warrant issued or endorsed as a result of non payment of such fine or compensation is likewise invalid.

2. That all persons under the age of 16 years who are held in custody by virtue of such warrants be released from custody and that where the relevant authorities have any doubt as to the age of a person so held they shall take such person before a District Court or Local Court magistrate who shall determine the age in accordance with the provisions of section 92 of the Evidence Act. Such magistrate will endorse the warrant with the estimated age of the detainee together with the date of viewing, the magistrate's name and the court seal.

3. In order to ensure the upholding of the Constitution all magistrates acting under section 36 of the Village Courts Act shall take all necessary steps to ensure that such warrant does not relate to a person under the age of 16 years before placing their endorsement upon such warrant.