Jessep, Owen --- "Customary Family Law & Human Rights in Png" [2002] ALRCRefJl 6; (2002) 80 Australian Law Reform Commission Reform Journal 26

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Reform Issue 80 Autumn 2002

This article appeared on pages 26 – 30 & 72 of the original journal.

Customary family law & human rights in PNG

By Owen Jessep*

Lying directly to the north of Australia, Papua New Guinea is a Pacific nation with a population of over four million people. It was formerly an Australian colony, becoming independent in 1975.

A distinguishing characteristic of Papua New Guinean family law is the contrast and conflicts which are evident between family law legislation, on the one hand, and customary family law, on the other.¹ The statute law is mostly old Australian colonial legislation, which continues to operate despite a quarter of a century of independence. At the same time, customary family law is also recognised (subject to certain qualifications) under the Constitution and several other statutes. In the result, in some areas of family law a ‘dual’ system operates, in which persons can choose whether to follow statute or custom. In relation to marriage, for example, a person may either make a monogamous statutory marriage by satisfying the formalities of the Marriage Act (Chapter 280 of the Revised Laws), or instead make a customary marriage formed in accordance with the relevant custom.

Customary family law, then, is an integral part of the Papua New Guinea legal system, and customary claims can be instituted at all levels of the court hierarchy, from the Village Courts² to the District Courts and even (depending on the amount and issues involved) in the National Court. In recent years, nevertheless, the constitutional and statutory ‘qualifications’ placed upon the recognition of custom have received increasing attention in the courts, often in cases where the custom in question is said to be oppressive and to infringe upon the legal rights of women.³ It may be noted that similar issues have attracted attention in other parts of the Pacific and in various African jurisdictions.⁴ In this article I will consider the effects of this emerging human rights jurisprudence in Papua New Guinea in the customary family law context.

Constitutional and statutory provisions

Under s 9 of the Papua New Guinea Constitution, the laws of the country include the Constitution itself, various categories of legislation, and the ‘underlying law’. According to s 20 and Schedule 2 of the Constitution, the two principal sources of the underlying law are custom, and the common law. In relation to custom, however, Schedule 2.1(2) requires that the custom not be inconsistent with any constitutional law, or inconsistent with a statute, or ‘repugnant to the general principles of humanity’. Further, according to s 3(1) of the Customs Recognition Act (Ch 19 of the Revised Laws), custom may not be recognised or enforced in a particular case or situation if to do so would result in injustice, would not be in the public interest, or would not be in the best interests of a child under the age of 16 years.

It can be seen from this brief summary that the recognition of customary family law is not automatic; rather, there are a range of constitutional and statutory requirements that represent potential obstacles to its acceptance and enforcement in a particular case. In practice, these requirements may often overlap. For instance, the same considerations that are claimed to make a custom inconsistent with a provision of the Constitution, or repugnant to the ‘general principles of humanity’, may simultaneously found an argument that to enforce the custom would cause ‘injustice’, or ‘not be in the public interest’ and so on. In the past decade, a number of National Court judges have been prepared to refuse to acknowledge and enforce elements of family custom, on the basis that certain of these constitutional or legislative safeguards have been infringed. Some examples of this judicial activity will now be given.

Challenges to customary family law

In the 1991 case of Re Wagi Non, the husband had left his wife and their four children in the care of his relatives when he travelled to another province for employment. After having heard nothing from the husband for more than five years, the wife eventually formed a relationship with another man. The husband’s relatives then obtained a Village Court order against her for compensation for adultery. When she failed to pay the amount required, the Village Court ordered her imprisonment. In the National Court, Woods J ordered her release, stating (among other reasons) that the custom relied on by the relatives of the husband should not be recognised, as it infringed s 55 of the Constitution. In substance, this section provides that ‘all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex’. In the opinion of the court:

“The facts of this case suggest that this woman is bonded, almost in slavery, to the husband even when the husband neglects her. This must clearly be a denigration of the woman’s humanness.”⁵

Again, in Re Kepo Raramu, a Village Court had sentenced a woman to a term of six months’ imprisonment for commencing a new relationship after her husband had died. On appeal, the National Court ordered her immediate release. One of the grounds relied on for this decision by Doherty J was the following:

“I am well aware of the custom in many areas that says women whose husbands have died are not to go around with another man. ... I do not know of any equivalent custom that says a man whose wife died is not allowed to go around with other women, and, as such, I consider this custom strikes against the basis of equality provided in s 55 of the Constitution.”⁶

Other Village Court decisions, such as those concerning the law of customary divorce, have also been the subject of National Court appeals. The former Chief Justice, Kidu CJ, heard several cases in 1991 in which he asserted the freedom of wives to leave their husbands, regardless of any rule of custom to the contrary. One example is that of Re Raima. There, a woman had been imprisoned by a Village Court after being unable to pay the 300 kina compensation (at that time about $A300) ordered in favour of her former husband, whom she had left. Kidu CJ upheld several objections to both the compensation order and the sentence of imprisonment, stating:

“Whether under introduced law or customary law a woman has the right to break her marriage. ... If a woman breaks her marriage the village court only has the right to consider the repayment of bride price according to customary law. A village court has no power to penalize her for breaking the marriage.”⁷

Although the basis for this holding is not spelled out in the brief judgment, it is likely that considerations of equality between the sexes were in the mind of Kidu CJ. The clear implication of his statement is that any custom that denied the woman the right of divorce would not be recognised, and any court order enforcing such a custom would similarly be invalid.

Despite the lack of any clear judicial definition in Papua New Guinea of what might be meant by ‘the general principles of humanity’ (a legislative expression with a long colonial history), the notion of ‘repugnancy’ to these principles has featured in several National Court family law cases. The first such instance occurred in 1991 in Re Kaka Ruk, on facts notably similar to those in Re Wagi Non (see above). The court reached an identical result, that the custom relied on could not be upheld because it ‘denigrated women’, and added:

“People in Papua New Guinea must come to terms with the law that women are not chattels that can be bought and thus bonded forever. They are equal participants in the marriage and in society ...”⁸

A final illustration, also with reference to the ‘repugnancy’ doctrine, is found in the 1994 case of Ubuk v Darius. This was a dispute over custody of an ex-nuptial child aged 20 months. The father relied on evidence of local custom to the effect that if an informal relationship did not progress to the status of a customary marriage, the father was entitled to automatic custody of any child born in the meantime, subject to a payment of compensation to the woman for having borne the child. The court was not impressed. In the words of Sevua J, who awarded custody to the mother:

“Whether one views it subjectively or objectively, the woman is a sex object. So where is the morality and value of humanity in this woman? ... I consider [these] customs repugnant to the general principles of humanity and, therefore, inapplicable to the present case.”⁹

Miriam’s Case – Re Willingal (1997)

In cases like those so far mentioned, the court typically relied on one or another of the requirements of Schedule 2.1 of the Constitution, or of s 3 of the Customs Recognition Act, to deny recognition to some aspects of family custom. In a number of these cases, the National Court felt obliged to intervene to protect women from discriminatory treatment and excessive punishment at the hands of Village Courts.¹⁰ The 1997 case of Re Willingal, in contrast, reached the National Court after publicity in one of Papua New Guinea’s national newspapers, which in turn led to the institution of proceedings by a non-governmental human rights organisation. These proceedings featured a whole battery of challenges against a custom requiring a woman’s forced marriage.

The unfortunate woman was Ms Miriam Willingal, an 18-year-old high school student from the western Highlands area of Papua New Guinea, who was being made the unwilling participant in a complicated compensation settlement between two kin groups. At the trial, there was some disagreement over the details of the customary compensation claim, but the broad outlines of the claim referred to 25 pigs, 20,000 kina in cash, and two women.¹¹ Injia J found that Miriam was objecting to the idea of being used as a form of payment, and that she had already been subjected to pressure to accept the planned marriage. Turning to the relevant law, Injia J had no doubt that Miriam’s constitutional rights had been infringed, and gave multiple reasons for this conclusion. His general approach to the issue of recognition of custom appears in the following passage:

“The traditional customs of the people of [this area] like the rest of PNG have existed from time immemorial and they serve complex value systems which only they themselves best know. It is not easy for any outsider to fully understand the customs and the underlying values and purposes they serve. ... But it is clear to me that the framers of our Constitution and modern day legislators were thinking about a modern PNG based on ethnic societies whose welfare and advancement was based on the maintenance and promotion of good traditional customs and the discouragement and elimination of bad customs as seen from the eyes of an ordinary modern Papua New Guinean. No matter how painful it may be to the small ethnic society concerned, such bad custom must give way to the dictates of our modern national laws.”¹²

The court accordingly held that a number of provisions of the Constitution and of other statutes would be infringed were the custom to be enforced. To begin with, s 32 of the Constitution, which guarantees basic freedoms in accordance with the law, would be infringed if Miriam was not free to choose whom to marry.¹³ Further, a forced marriage in these circumstances would amount to a breach of s 55 (here, discrimination on the basis of sex), ‘because there is no evidence that the same custom which targets young women from the deceased’s tribe also targets eligible men from the [other] tribe’.¹⁴

Turning to other legislation, the court found that the proposed marriage would also breach s 5 of the Marriage Act (Chapter 280 of the Revised Laws), which was designed to protect women from being pressured into customary marriages. As to the criteria and requirements of s 3 of the Customs Recognition Act (Chapter 19), the court found that the custom in question was not only repugnant to the general principles of humanity, but would also, if carried out, produce injustice and be contrary to the public interest. For example, the custom was repugnant to the general principles of humanity because ‘living men or women should not be allowed to be dealt with as part of compensation payments under any circumstances’.¹⁵

On all of these grounds, the court then proceeded to issue permanent injunctions and restraining orders against the various groups and their members. With such an array of provisions all leading to the same result, the court stated that it was therefore unnecessary to consider additional arguments presented on behalf of the plaintiff. These further points turned on whether the relevant custom also infringed other provisions in the Constitution, such as s 36 (freedom from inhuman treatment); s 42 (liberty of the person); s 49 (right to privacy); and s 52(1) (freedom of movement).¹⁶

Discussion and conclusion

I have outlined a number of cases arising in the past decade in Papua New Guinea in which courts have been prepared to strike at aspects of family custom. These cases have variously concerned differing expectations about spousal behaviour in a customary marriage, parental custody rights, customary divorce, proper behaviour as a widow, and forced marriage. There is little doubt that the most recent of these decisions, Re Willingal (1997), will be a leading case for years to come whenever aspects of customary family law are in issue. In such a context, the case contains a bundle of potential weapons for future litigants seeking to prevent the enforcement and recognition of particular customs. The reasoning in Re Willingal drew on earlier decisions of the National Court, but at the same time extended the range and scope of the arguments available to challenge family custom, especially where the custom appears to be one-sided, oppressive or patriarchal in its application. The possibility of additional forms of argument is also suggested in those points upon which the court in Re Willingal found it unnecessary to rule.

It is interesting to speculate briefly as to the possible implications of Miriam’s case for other aspects of customary family law. For example, in recent years the most controversial family law topic in Papua New Guinea (to a greater extent even than the constant debates about customary bride price) has been that of polygamous marriage.¹⁷ While polygamy (which in practice means polygyny, that is the right of a man to have more than one wife) is virtually unknown in many parts of the country today, it remains a relatively common practice among leaders from the Highlands provinces. In legal terms, a polygamous customary marriage has generally been regarded as valid by virtue of section 3(1) of the Marriage Act (Chapter 280), which allows customary marriages ‘in accordance with the custom prevailing in the tribe or group to which the parties or either of them belong or belongs’.

Against advocates of the practice, who rely on the Constitution’s support for traditional customs, objections (and calls for legislative intervention) based variously on social, moral and legal grounds have come from community and church groups, as well as magistrates, judges, other legal representatives, and members of parliament. Among the different forms of argument used in the debate, claims have been made that polygamy is actually ‘unconstitutional’,¹⁸ or otherwise vulnerable on legal grounds.

Conceivably, then, a court in Papua New Guinea might one day be faced with an objection to some aspect of customary polygamous marriage, based upon one or more of the arguments considered in Re Willingal and earlier cases. Leaving aside the possibility of an outright constitutional challenge, such a claim might be made in any context in which a party’s rights or responsibilities will vary according to whether the marriage is legally valid or not (such as spousal maintenance, property claims, inheritance, fatal accidents, and so on). In brief, the argument might then be that the customary expectations and practices relating to polygamy in that particular community are inconsistent with s 55 or with other rights guaranteed to women by the Constitution, or might produce injustice or be contrary to the public interest (thereby infringing the requirements of the Customs Recognition Act, or related legislation). A court’s decision invalidating, on any of the grounds mentioned, a particular polygamous marriage would not automatically spell invalidity for all polygamous marriages, but would obviously have significant implications for other cases.

To conclude, it has been frequently argued that various aspects of customary family law in Papua New Guinea reflect entrenched gender discrimination against women. As illustrated by the decisions outlined above, some National Court judges in the past decade have begun to take the initiative by refusing to acknowledge and enforce elements of custom that are found to denigrate or oppress women. In future cases, it is possible that other challenges will be mounted, even to relatively fundamental practices such as polygamy or the payment of bride price. If so, and if counter arguments are presented to justify and provide support for the importance of the custom concerned in the social life of the community, the courts will then be faced with the difficult task of attempting to reconcile and balance those parts of the Constitution which emphasise respect for traditional custom, with other constitutional and statutory provisions which emphasise norms of equality and human rights for all citizens.

* Dr Owen Jessep teaches law at the University of New South Wales.

His research interests are Papua New Guinea and Pacific legal systems; customary law and land tenure; and family law in Australia and the Pacific.

Endnotes

1. See generally O Jessep and J Luluaki, Principles of Family Law in Papua New Guinea, (1994, 2nd Ed) UPNG Press.

2. Village Courts, now regulated by the Village Courts Act 1989, were first established in 1975. The magistrates are legally untrained, appointed from the local community, and paid a small stipend for their work. They have both a civil jurisdiction in matters arising from custom, and a criminal jurisdiction designed to help keep the peace at the local level.

3. This paper will outline developments prior to the enactment of the Underlying Law Act 2000 (see generally the article by Ottley in this issue). While the interpretation of this new legislation is a matter of some difficulty, for example as to the extent to which the Act has effectively replaced Schedule 2.1 of the Constitution or the Customs Recognition Act (Ch 19), the new Act is not likely to affect the approach of the courts to the issues covered here.

4. See eg J Zorn, ‘Women, Custom and International Law in the Pacific’, USP School of Law Occasional Paper No 5 (1999) University of the South Pacific, School of Law, Port Vila. Analogous contemporary discussions in various African jurisdictions are referred to in several papers in J Eekelaar and T Nhlapo (eds), The Changing Family – Family Forms and Family Law (1998) Hart.

5. [1991] PNGLR 84, Woods J at 86-87.

6. [1994] PNGLR 486, Doherty J at 486.

7. Unreported National Court judgment, Mt Hagen WHP, 15 April 1991, at 1.

8. [1991] PNGLR 105, Woods J at 107.

9. [1994] PNGLR 279, Sevua J at 283-84.

10. For discussion, see O Jessep, ‘Village Courts in Papua New Guinea: Constitutional and Gender Issues’, (1992) 6 International Journal of Law and the Family, 401-16.

11. (1997) N 1506, at 24. At this time, the value of the kina was approximately equal to $A0.92c.

12. Id, at 51-52, 54-55.

13. Id, at 45-46.

14. Id, at 48-49.

15. Id, at 50-51.

16. Id, at 49.

17. For discussion, see for example O Jessep, ‘The Governor-General’s Wives – Polygamy and the Recognition of Customary Marriage in Papua New Guinea’, (1993) 7 Australian Journal of Family Law 29-42.

18. PNG Law Reform Commission, Task Force on Family Law Reform, Press Release, 20 June 1990.