Re Kaka Ruk and s42(5) of the Constitution [1991] PNGLR 105

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 18 March 1991
• Citation: [1991] PNGLR 105
• Court: National Court
• Year: 1991
• Judgement Number: N963

Full Title: Re Kaka Ruk and s42(5) of the Constitution [1991] PNGLR 105

National Court: Woods J

Judgment Delivered: 18 March 1991

N963

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE KAKA RUK

AND SECTION 42 (5) OF THE CONSTITUTION

Mount Hagen

Woods J

14 March 1991

18 March 1991

INFERIOR COURTS — Village courts — Jurisdiction — Power to order imprisonment — Subject to Constitution — Adultery complaint — Marital problems more appropriate to compromise and discussion — Principles of natural justice to be observed — Rights to equality and participation — In marriage — Wife's imprisonment unlawful — Constitution, s 42 (5); Preamble, cl 2 (12).

CONSTITUTIONAL LAW — Constitution — National Goals and Directive Principles — Equality and participation — In respect of marriage relationship — Whether settlement of marital disputes by village courts contrary to natural justice — Constitution, s 42 (5); Preamble, cl 2 (12).

Held

(1) Whilst the powers of the village courts are to be exercised having regard to custom they must also be exercised in accordance with the principles of natural justice.

SCR No 2 of 1989; Re Village Courts Act [1988-89] PNGLR 491, followed.

(2) The principles of natural justice should be measured against the relevant National Goals and Directive Principles to determine whether they are in the particular case "repugnant to the general principles of humanity".

(3) Where a family marital problem had been enforced by imprisonment of the wife by the husband, cl 2 (12) of the National Goals and Directives Principles seeking recognition of equality and participation in the relationship of marriage had been denied, and the imprisonment was harsh and oppressive and repugnant to the general principles of humanity.

Cases Cited

SCR No 2 of 1989; Re Village Courts Act [1988-89] PNGLR 491.

Inquiry into Complaint

This was an inquiry into a complaint that a person had been unlawfully detained. The matter came to the attention of the court through the position of Woods J as visiting justice and was dealt with by him under s 42 (5) of the Constitution which provides:

"Where a complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained:

(a) the National Court or Judge shall inquire into the complaint and order the person concerned to be brought before it or him;

and

(b) unless the court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit."

Cur adv vult

18 March 1991

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