N806

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE CONSTITUTION, SECTIONS 23(1), 23(2), 225 AND 
IN THE MATTER OF THE OPERATION OF THE NATIONAL COURT IN THE 
EASTERN HIGHLANDS AND SIMBU PROVINCES

Goroka
Brunton J

16 February 1990

CONSTITUTIONAL LAW - Constitutional duties - Enforcement of - State duty adequately to resource constitutional offices - Reduction of National Court budget - Reduction by administrative flat - Cancellation of criminal circuit - Unreasonable delays in being brought to trial - Breach of constitutional duty - Orders to maintain status quo prior to reduction - Constitution, ss 23(2), 37(3), 209, 210, 225.

Section 23(2) of the Constitution provides:

"Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, ..."

Section 37(3) of the Constitution guarantees the right to be "afforded a fair hearing within a reasonable time".

Section 225 of the Constitution provides that it is

"the duty of the National Government and of all other governmental bodies ... 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".

A criminal circuit of the National Court was cancelled by the Chief Justice because of a decision by the State and its agent, the Secretary for Finance, to cut 25 per cent from the budgetary appropriation by the National Parliament to the National Court. The cancellation of the criminal circuit meant that no criminal trials would be held in some areas for five months and that the trials of those on remand would be further delayed.

Held:

(1) The cancellation of the criminal circuit of the National Court caused and would continue to cause unreasonable delays in bringing persons committed for trial before the court contrary to s 37(3) of the Constitution.

(2) The reduction of the budgetary appropriation for the National Court by administrative fiat of the Secretary for Finance was unconstitutional as being in breach of ss 209(2), 209(2A), 209(2B), 210(2), 210(3), 210(4), 211 and 225 of the Constitution.

(3) The reduction of the budgetary appropriation for the National Court was a breach of duty within s 23 of the Constitution.

(4) Pursuant to s 23(2) of the Constitution interim orders should issue to maintain the status quo prior to the reduction of the budgetary appropriation and should remain in effect until varied by Parliament, the Supreme Court or with the consent of the Chief Justice.

Cases Cited

The following cases are cited in the reasons for orders:

The State v Peter Painke [1976] PNGLR 210.
The State v Peter Painke (No 2) [1977] PNGLR 141.

Enforcement of Constitution

The reasons hereunder were published by the National Court following cancellation of the criminal circuit of the National Court in the Eastern Highlands and Simbu Provinces.

Counsel:

(Appearing at the request of the Court)
D Ashton-Lewis, from the State Prosecutor’s Office, Goroka.
F Tera, from the Public Solicitor’s Office, Goroka.

16 February 1990

BRUNTON J.: I have been advised by the Chief Justice that he has had to cancel the arrangements for a scheduled circuit by Brown J to the Simbu Province in March 1990 because the Department of Finance has removed twenty-five per cent (25%) of the funds allocated by an Act of the National Parliament, to the National and Supreme Courts.

On 13 February 1990, the Chief Justice wrote to the Prime Minister in the following terms:

"The Rt Hon Rabbie Namaliu, CMG, MP
Prime Minister of Papua New Guinea
Morata Haus
WAIGANI, NCD

My dear Prime Minister

I and my brother Judges are of the view that the action of the Secretary for Finance and Planning in deducting 25% of the court’s funds is illegal.

We consider that as Parliament voted the money only Parliament can take any part of that money away by a subsequent vote.

We wish to be informed on the following questions:

(a) Does the Government intend to put bills before the House for a 25% reduction to be made in the 1990 Appropriation to the Judiciary and the Legislature? And

(b) If the answer to (1) is ‘no’ then will the Secretary for Finance and Planning continue to deduct 25% off each quarter’s funds allocation.

I attach a copy of a public statement which I have released which shows the effect the 25% reduction has had on the Court’s works in the first three months of this year.

Yours faithfully

B W KIDU

Chief Justice

cc Minister for Finance & Planning
Minister for Justice"

On the same day, the Chief Justice made a public statement:

"As the Department of Finance has cut the Judiciary’s funds for the first quarter of 1990 by 25% the National Court has insufficient funds to hold court sittings outside places where judges are placed. These places are NCD, Lae, Mt Hagen, Rabaul and Goroka.

Until further notice there will be no National Court sittings in the North Solomons, West New Britain, New Ireland, Manus, East Sepik, West Sepik, Madang, Oro, Milne Bay, Western Province, Gulf, Enga and Southern Highlands during March and April.

B W KIDU
Chief Justice"

The Constitution gives an accused person a right to a fair trial within a reasonable time. This is a guaranteed right enforceable under s 57 of the Constitution, and it is not a right that the Constitution says is subject to any limitation other than the reasonableness that is part of its substance. In the past, the judges have struck down indictments and discharged persons from warrants of commitment because of inordinate and unreasonable delays in bringing them to trial.

There is some indication as to what is an unreasonable delay in the Constitution itself. Section 37(14) of the Constitution says:

"In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration."

In The State v Peter Painke [1976] PNGLR 210 at 212, a period of eleven (11) months was considered to be an unreasonable time for an accused to have been under the cloud of a charge. In that case, the accused had been on bail since he was charged. The case went on appeal to the Supreme Court and was not disturbed on the unreasonable delay issue: The State v Peter Painke (No 2) [1977] PNGLR 141.

It is a fact that the criminal lists in the Eastern Highlands Province and the Simbu Province are very long, and that accused persons, both in custody and on bail are having to wait, sometimes, for over a year before being brought to trial. There is then some risk to the public interest of having charges struck out because of the accused’s rights under s 37(3) of the Constitution.

In particular, the Simbu Province was poorly served by the National Court in 1989 owing to the unavailability of judges. As a result, the lists have grown. This year, the National Court, which has built up its number of judges, has done its best to alleviate some of that problem by allowing counsel to move cases involving persons who have indicated that they wish to plead guilty, and who were remanded in custody at Baisu in the Western Highlands, to Mt Hagen. This is, at best, a short-term measure, and may create problems for the lawyers involved in those cases.

Because the lists in Goroka and Kainantu are very long, the Chief Justice allocated Brown J to do the March circuit in Kundiawa. However, that circuit has now been cancelled because the Secretary for Finance has reduced the National Court budget by 25 per cent, and funds are not available for the airfares and the accommodation of the judge.

The circuits in the Eastern Highlands Province have been set on the basis of the original direction by the Chief Justice that the Kundiawa circuit in March would be done by Brown J. Trial dates have been set in Goroka, in March, and only four days remain on that month’s calendar for other work. The consequence is that unless the Eastern Highlands Province circuit in March is abandoned, no judge will visit Simbu.

I have discussed this possibility and its consequence with counsel from the State Prosecutor’s Office and the Public Solicitor’s Office, and they have asked me to continue with the circuit in the Eastern Highlands Province because of the likely disruptions to the lists in both Provinces should the schedule be changed at this point in time. I agree with their submissions.

The last judge to sit in the Simbu Province was Sheehan J, who did the circuit in October 1989, so if no judge is to visit Kundiawa before April 1990, it will mean that the National Court has not been in the Simbu Province for five months. In my view, that is a totally unreasonable delay in bringing justice to the people and it contradicts both the letter and spirit of s 37(3) of the Constitution. Because there are persons both in custody and on bail who have been awaiting trial in excess of twelve (12) months, and because further delays to the circuits can only exacerbate that position, I hold that the delays are unreasonable.

In my view, reduction in the Court’s budget was unconstitutional because:

(a) the National and Supreme Court have a separate budget from the other arms of government, which is determined by the National Parliament, and there has been no reduction in the Court’s appropriation by the National Parliament;

(b) although reductions to the Court’s budget may be achieved with the consent of the Chief Justice, the Chief Justice was not consulted by the Secretary for Finance, or any other member of the executive arm of government. This was not only a breach of the comity which must exist between the separate arms of government, but it was, in the circumstances, an act of rudeness towards the Chief Justice and the judges;

(c) even if the executive arm of government has the power to reduce the Court’s appropriation, then it is obliged by s 225 of the Constitution to maintain reasonable levels of funding to the Court; it is also obliged to maintain reasonable levels of funding to the offices of the Public Prosecutor and the Public Solicitor.

The last point is important. The National Court, in its criminal jurisdiction, cannot function if adequate and reasonable funding is not given to the Public Prosecutor and the Public Solicitor.

The constitutional basis for these views lies in ss 209(2), 209(2A), 209(2B), 210(2), 210(3), 210(4), 211 and 225 of the Constitution, as amended by Constitutional Amendment No 10 of 1988.

The judicial power that is vested in the judges is a constitutional power. It is not subject to executive control either directly or indirectly, but is moderated by the Constitution, the Acts of Parliament, and the decisions of the Supreme Court. The constitutional source of that power is not the executive arm of government, or the legislative arm of government, but comes through the Constitution, the Acts of Parliament, and the decisions of the Supreme Court. The constitutional source of that power is not the executive arm of government, or the legislative arm of government, but comes, through the Constitution, directly from the people. Subject to the Constitution, the judicial authority of the people vests in the National Judicial System: Constitution, s 158(1). Of course, the Constitution, in accordance with its own terms, may be altered to vest that power elsewhere, but otherwise judicial authority is a separate component of a whole that may only be affected by acts that are regulated constitutionally. Judicial authority cannot be reduced by administrative fiat. Put simply, the courts have to remain open to the people because the constitutionally guaranteed rights of the people are not written "subject to the availability of finance".

This does not mean that the courts or other constitutional offices must be given everything they ask for in the estimates. In times of financial difficulty, there has to be restraint. But we no longer live in colonial times when administrative fiat was the rule. Colonialism is government without responsibility. Today, we live under a written Constitution. All State acts, judicial, legislative and executive, are subject to the Constitution and the Rule of Law. There are proper constitutional procedures for bringing about variations to the budgets of the National Parliament and the National Court, and there are constitutional limitations on variations to appropriations to constitutional office-holders under s 225.

Accordingly, I make the following interim orders to maintain the status quo until either Parliament or the Supreme Court has had a chance to deliberate on the policy and constitutional issues raised by the recent budget cuts to the National Court.

By virtue of powers vested in the National Court under s 23 of the Constitution which provides:

"Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, ...".

It is hereby ordered that:

1. The Secretary for Finance, Morea Vele, and any other person who occupies that office, shall forthwith reinstate funding appropriated by the National Parliament for the use of the National and Supreme Courts as at the levels of the original appropriation for the beginning of the fiscal year 1 January 1990.

2. The Secretary for Finance, Morea Vele, and any other person who occupies that office shall provide adequate funding to the offices of the Public Prosecutor and the Public Solicitor to ensure, as far as is within his 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 the offices of the Public Prosecutor and the Public Solicitor in the maintenance of the Criminal Circuits in the Eastern Highlands Province and the Simbu Province, and the functions of those offices elsewhere in Papua New Guinea.

3. Such funding as was originally appropriated by the National Parliament for the use of the National and Supreme Courts in 1990 shall not be reduced or varied without:

(a) an amending Act or other legislative enactment by the National Parliament; or

(b) an order of the Supreme Court; or

(c) the consent of the Chief Justice.

4. This order applies against the Independent State of Papua New Guinea, the Secretary for Finance, and all their officers, servants and agents.

5. This order is an interim order to remain in place until varied by an Act of the National Parliament or other legislative enactment, or by an order of the Supreme Court, or by the consent of the Chief Justice.

These orders are in effect immediately and time is abridged for their entry.

Orders accordingly

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