A detained person has no easy access to lawyers, filing fees or court registries. Constitution section 42(5) and Form 125 of the Human Rights Rules are designed around that fact.
The constitutional provision
Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained —
(a) the National Court or a 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.
The word in both paragraphs is “shall”. On a complaint being made, the Court shall inquire and shall order the person to be brought before it. And unless satisfied the detention is lawful — and, on remand, not unreasonable — the Court shall order release.
Note the separate limb for remandees: even lawful detention on remand may be unreasonable, having regard, in particular, to its length. That is the provision that addresses long remand periods awaiting trial.
Release may be unconditional or subject to such conditions as the Court thinks fit.
Order 23 Rule 7(4)
A complaint under section 42(5) may be made by filing a Complaint of Unlawful or Unreasonable Detention, in Form 125, in which case —
(a) the file reference shall be “HRC”; and
(b) the person making it shall be called “the complainant” and the person against whom it is made “the respondent”.
Form 125 asks five things: the complainant’s name, address and phone numbers; then —
“Where have you been detained? (Give name of Police Lock-up or Correctional Institution.) For how long have you been detained? What happened? Tell your story why you say you have been unlawfully or unreasonably detained.”
and finally a declaration: “I declare this statement to be true and correct to the best of my knowledge and belief AND I hereby make a complaint to the National Court that I have been unlawfully or unreasonably detained”, dated and signed.
That is the whole form. No pleading, no affidavit, no particulars — tell your story.
Four places
- a Clerk of the District Court;
- the Assistant Registrar in your town;
- a Judge of the National Court in your Province; or
- The Registrar of the National Court, PO Box 7018, Boroko, NCD.
And the form carries Instructions to Court Clerks: “When this form is handed to you, please forward it as quickly as possible to the Registrar of the National Court.”
A person in a police lock-up in a provincial centre cannot reach the National Court Registry in Boroko. So the form may be handed to a Clerk of the District Court — and the clerk is instructed to forward it as quickly as possible.
The complaint does not need to be filed in the National Court by the complainant at all. It needs only to reach someone in the court system.
Rule 7(5)(a)
The filing of a Human Rights Enforcement Application or a Complaint of Unlawful or Unreasonable Detention shall be free of fees.
Both Form 124 and Form 125 are free. For other human rights proceedings the Registrar has a discretion to waive the fee, taking into account whether payment of a filing fee might be a hardship to the plaintiff. See filing a human rights application.
Three further provisions
(d) Complaints under Section 42(5) that a person is unlawfully or unreasonably detained go on the Human Rights List.
(h) So do applications for a writ of habeas corpus under Order 17 of the National Court Rules — see habeas corpus.
(i) And so do proceedings for enforcement of the provisions of the Correctional Service Act and the Correctional Service Regulation concerning treatment of detainees, calculation of periods of detention and related proceedings.
Under Order 23 Rule 6(b), proceedings may be brought by a person acting on behalf of a person who is under a disability or is unable to fully and freely exercise their right to bring an application. A detained person is the paradigm case.
And under Rule 9, any member of the public may deliver a Statement of Alleged or Suspected Breach of Human Rights in Form 127 to the Registrar, who must forward it to a Judge within one day. The Judge may then open an HROI file, and may direct the Public Solicitor under Constitution section 177(2)(b) to provide legal aid, advice and assistance.
So a relative, a church worker or a prison visitor who learns of unlawful detention has a route even where the detainee cannot act.
The Correctional Service Act and the Correctional Service Regulation are not available on PacLII at the time of writing. Order 23 Rule 5(i) of the National Court Rules, set out above, places proceedings for their enforcement on the Human Rights List.
Section 42 — liberty of the person — is one of the Basic Rights listed in Rule 5(a). Where the complaint also involves ill-treatment, consider section 36 (freedom from inhuman treatment) and section 37 (protection of the law); where the detention followed a search, section 44 (freedom from arbitrary search and entry).
Under Rule 7(3), an originating process should as far as is practicable identify with precision, by reference to relevant provisions of the Constitution, the right infringed and the relief sought — but Form 125 shows how lightly that standard sits on a complainant in custody.
Sources
- National Court Rules 1983 — O 17; O 23 (Human Rights Rules 2010) rr 5–9; Forms 124, 125, 127
- Constitution — ss 36, 37, 42, 44, 57, 177, Div III.3
- Correctional Service Act; Correctional Service Regulation — not available on PacLII
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.