Unreported National Court Decisions
N279
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
(APP. NO. 206 OF 1980)
(APP. NO. 207 OF 1980)
(APP. NO. 142 OF 1980)
BETWEEN: REBEKA AMBI
APPELLANT
AND: MARY RABI
RESPONDENT
BETWEEN: TARA MAUKA
APPELLANT
AND: GETHERDE KIAK
RESPONDENT
BETWEEN: SUZANE KESINO
APPELLANT
AND: ROSLINE ERIC
RESPONDENT
Wabag
Narokobi AJ
16 December 1980
NAROKOBI AJ:
INTRODUCTION
In each of these appeals, the appellant was convicted and sentenced to imprisonment with light labour for 6, 1 and 5 months respectively. Each appellant was convicted of an alleged offence of enticement, contrary to Native Administration Regulations (New Guinea) 1924-1940, Regulation 84(1). I have decided to write a single short judgement for these appeals, as the facts are in their legal implications, identical.
FACTS AND CIRCUMSTANCES
Each appellant was a single, Melanesian automatic citizen of Eastern Highlands Province in the former Trust Territory of New Guinea. Each was convicted and sentenced by the Local Court sitting at Goroka in 1980. The offence in each case was that the appellant being a single girl, enticed the husband of the respondent in each case. Each respondent was a married Melanesian automatic female citizen and her husband was also an automatic Melanesian citizen.
In the first appeal the appellant served a total of 4 days in custody of a sentence of 6 months. She was convicted on 24th July, 1980 and was granted bail on the 28th of the same month. In the second appeal, the appellant was convicted on 23rd of July, 1980, and served 5 days of her sentence. In the third appeal, the appellant served one night only of her 5 months sentence.
NATIVE REGULATIONS
The claimed violated law is the Native Regulation 84. (Maumau v. Maragili) (1). It is the last of the Colonial laws, designed to control the natives on account of their native character as distinct from European character. Native regulations had their birth in Papua under Sir William McGregor in 1889 under a power contained in The Native Regulation Ordinance 1908-1962. Section 5 of that Act gave the Lieutenant Governor in Council power to make regulations “affecting the affairs of natives” with regard to, among other things, “marriage and divorce”. The 1908 Act was actually passed a year before Sir Hubert Murray became Lieutenant Governor of Papua.
The regulations in New Guinea have a slight change to their name in that they are called Native Administration Regulations. However, they are essentially a copy of the Papuan regulations. The New Guinea regulations were made under Native Administration Ordinance 1921.
As early as 1963, Minogue J. (as he then was) confessed to his inability to “discover what I may perhaps loosely describe as the social policy behind” regulation 84, (Supra)[cdlviii]1. However it is fair to say that “both sets of regulations were designed to set out a comprehensive system of law applicable to Papua New Guineans only.”[cdlix]2 After the war, these regulations were gradually pruned and some were abolished. In 1975 the first Independent Government of Papua New Guinea, repealed most of the regulations[cdlx]3 following the Law Reform Commission’s recommendations.
The regulations not repealed, were those dealing with adultery, willmaking and succession to property. Regulation pertinent to this appeal which has not been abolished is regulation 84.
Regulation (84) (1) states that:
“Any native who abducts or entices a wife from the custody or companionship or her husband shall be guilty of an offence”.
Penalty: (Six kina or imprisonment for six months, or both).
Regulation 84 (3) says:
“No complaint shall be brought against any native under the last two preceding sub-regulations except by the native husband or wife of the woman or man with whom the offence was committed, or in the absence of such husband or wife, as the case may be, by his or her nearest relatives”.[cdlxi]4
INTERPRETATION OF REGULATIONS
It is clear from regulation 84(1), that it is an offence to abduct or entice a female automatic citizen to have sexual intercourse with any male automatic citizen where that male citizen is not the husband of the citizen who is abducting or enticing.
The accused may be a male or a female, provided he or she is a native, or an indigneous person or an automatic citizen of Papua New Guinea. The “victim” of abduction or enticement, must however be a “wife”. She has to be abducted or enticed from the custody or companionship of her husband. It is clear therefore that a husband could not be abducted or enticed, nor could a single, unmarried woman be abducted or enticed under this regulation.
The issue has not arisen as to whether the “wife” could be either a naturalized citizen or a foreigner, married to an automatic citizen. Bearing in mind the historical foundations of these regulations, it is reasonable to conclude that the Legislator did not envisage that possibility. But on a purposive interpretation of the word “wife”, it may be concluded that the regulation would cover that situation. That argument would be tenable on a purposive interpretation where the husband was an automatic citizen of Papua New Guinea. What if he too, was either a naturalised citizen or a foreigner? Would he be a “husband” whose “wife” could be the victim of an abduction or enticement?
The difficulty with any answer to these questions is that the overall effect of the regulation is entirely discriminatory. For, it is in no way possible to regard a foreigner as a “native”, and it is doubtful if a naturalized citizen could be accepted as a native.
Here, in my view is a law, which is entirely out of tune with the spirit of the Constitution and of our times. Not only is this law discriminatory in its application to different sexes in Papua New Guinea, it is also discriminatory in a negative sense against automatic citizens. This is a law whose era has long died, but its shadows and skeletons still rule and haunt us from their graves.
It is quite clear, the learned magistrate could not have secured a conviction in each of these appeals. The law, as it stands is that, a native woman, whether married or single could not abduct or entice a married native man. Each conviction is therefore a total nullity. Each appeal is therefore upheld and each appellant is discharged.
THE CONSTITUTION AND CUSTOM
The Constitution of Papua New Guinea says very clearly that except for contempt, no person shall be convicted of an offence which is not defined by and the penalty for which is not prescribed by a written law[cdlxii]5. In democracies where Governments govern under the law, this basic protection is the corner stone of freedom from arbitrary arrests and deprivation of personal liberty. But there is a case in Papua New Guinea to include offences known to custom.
No doubt, in many parts of Papua New Guinea, the conduct which the appellants were punished for, would have amounted to breaches of customary law. If a woman tries to “steal” or “grease” the husband of another wife, serious trouble would emerge. That is indeed a part of the foundations of our people. Unfortunately the Constitution of Papua New Guinea s. 37(2) does not give courts power to punish breaches of customary law offences (compare s.    of the Constitution of the Republic of Vanuatu).
It may be that on the principles of Shaw v. D.P.P.[cdlxiii]6[cdlxiv]7 the courts should be the custodians of public morality and sanction morals which are not defined by written law as positive wrongs. (see also Knuller v. D.P.P.[cdlxv]8 (1972) 2 All E.R. 898 (H.L.) 56 Cr. App. R. 633 (1973) A.C. 435). It may be that this could be done by developing an underlying law. But it will be in conflict with section 37(2) of the National Constitution, in my view. Section 37(2) of the Constitution should be amended to include customary offences.
THE NATIONAL COURT AS A COURT OF JUSTICE AND CONSCIENCE
Section 37(2) is part of the fundamental rights and freedoms of those who choose to live under the flag of this land. Rights of persons are sacred and the duty to enforce these rights by the National Court is the solemn duty of this court[cdlxvi]9. See section 57(1) of The Constitution of The Independent State of Papua New Guinea. Section 58 of the National Constitution provides additional enforcement mechanisms for payment of compensation by appropriate persons or bodies when person’s rights are violated.
By force and effect of s. 57(1) of the National Constitution, the National Court may on its own initiative protect and enforce the rights or the freedoms of persons whose liberties have been denied them. In these appeals, three automatic citizens have been convicted and sentenced to imprisonment for the breach of an offence that does not exist by written law and whose penalty is not defined by a written law.
In these appeals the learned magistrate is entirely innocent. Besides, he is exempted by s. 58 5(b) of the Constitution itself. It is the sort of mistake any magistrate could make.
But the fact remains that three automatic citizens have suffered at the hands of the State. I consider that sufficient power is vested in the National Court under s.58 4(b) and s.57(1), (3) and (6) to make the orders I will soon make.
This being a court of Justice and Conscience, I hold that each of the appellants should be awarded exemplary damages. In the case of the first appellant, Rebeka Ambi, I award her K200.00; in the case of the second appellant, Tara Mauka, I award her K200.00; and in the case of the third appellant, Suzane Kesino, I award her K100.00; these being exemplary damages. These orders are made against the Independent State of Papua New Guinea, through the Government.
REFORMING THE LAW
I renew my call for the reform of this law[cdlxvii]10. Either this law is reformed so it applies to all persons of all races, or it is repealed from The Statute books. Native Regulations are aspects of colonial era which must not be allowed to continue beyond the tenth year of independence. They are an affront to the Spirit of the Country’s Constitution, at this time, whatever their social utility at the time of their enactment.
There was, in England a common law action for enticement. That offence was abolished in England in 1970[cdlxviii]11 (Supra) and by force of The Constitution of The Independent State of Papua New Guinea, that common law is probably not a part of our common law[cdlxix]12.
In this case, I can do no more than reiterate the proposed reform of the Law Reform Commission in its report No. 5 of February, 1977, at P. 6 where the Commission said:
“5.      We recommend that a new action for enticement be created to deal with the situation where a married person is persuaded to live apart from his spouse so that the enticed spouse can have sexual intercourse with the enticer or some other person. The intention to have sexual intercourse is crucial because, we think, that not all forms of enticement should lead to compensation. Take the example of a husband who continually hits his wife and she is persuaded by her mother or father to leave her husband, but without any intention to have her have sexual intercourse with another person. In that case we think the husband would not have any action for enticement against his wife’s parents.
The English common law action for enticement was based on the idea that wives and children were chattels or goods. If someone should deprive the husband of their chattels, they should be compensated. Our Constitution has rejected the inferior role of women. Our proposed law on enticement would apply equally to men and women. Thus, if a husband is enticed away his wife may bring an action for enticement. Our proposals are not based on the outmoded idea that wives and children are chattels. They are based on the ethical values and the social realities of Papua New Guinea regarding sexual morality.
It is regarded as a serious affront if a man was to ‘grease’ or entice away, another man’s wife, with a view to having sexual intercourse.
It is equally serious if a woman was to entice away a married man for sexual ends. If there was not to be a cause of action for enticement, a spouse would have to wait until adultery is actually committed before an action is brought. This we believe would be a defect in adultery law which could lead to much social discord. Accordingly, we have created a new action for enticement by drawing from the now abolished common law action for enticement and our own customary law. We realised that in so doing the arm of the law is being extended to the private lives of husband and wife. However, as mentioned above, our social reality demands this at this time.
TIME LIMITATION FOR COURT ACTION
“6.      We recommend that a total of eighteen months be given to the complainants to go to the court. In the first instance, the complainant has six months from the he has knowledge of the adultery or the enticement to make his complaint. If for some good reason, he or she has not been able to make a complaint, then the court should allow the complaint up to another 12 months to go to court.
We believe it is important to have a definite time limitation on bringing actions for adultery or enticement. If an act of adultery has not caused conflict and has apparently been forgotten or forgiven, we believe it is best not to raise the matter again. That is of course a matter for the individuals to determine. However, if a complainant knew of the adultery and did not complain for six months, he should not complain after that period unless a court considers that he has a reasonable excuse for doing so.
We have not set out the grounds for extending the initial six months. This should be left to the magistrate’s good sense, judgement and discretion. However, the sort of reasons we have in mind include sickness, physical or mental inability to bring the matter to the court, persuasion by the spouse, the adulterer or some other person against court action, unavailability of magistrates or witnesses, or fear of the courts or for the imagined consequences as opposed to actual consequences. After a total of eighteen months from the first day of knowledge, we believe the matter should be closed to courts. This does not mean that the parties could not resolve it themselves. However, we would positively discourage bringing back to life matters that should have been resolved.
JOINING PROCEEDINGS
“7.      Adultery and enticement actions always involve at least three people: the complainant and the parties involved in adultery or enticement. Sometimes a complainant may bring separate court actions against the parties to the adultery. A person might start an action for enticement as well as the magistrate to hear the two actions together, unless this would lead to injustice.
In some situations we believe justice would be best achieved if all parties could give evidence or information to the magistrate at the one hearing so that he can make his decision on all the issues. In the important mediatory role we propose for the magistrates, it would be even more essential that, wherever possible, the magistrates should deal with all the actions together.
For these reasons we recommend that magistrates join proceedings unless there is good reason for dealing with them separately. Although we have not provided the grounds for joining proceedings, we consider that the magistrate should be guided by the overall harmony, peace, welfare and the paramount desire to resolve all disputes fairly among the parties involved.
DEFENCES
“8.      We recommend a number of defences to actions for adultery and enticement. First, where the complainant has consented to or connived at or assisted in the act of adultery or enticement, he should have no cause of action. Secondly we believe that a child below the age of puberty should not be a defendant in any proceedings for adultery. Thirdly, where the complainant actually had knowledge of adultery or enticement but had forgiven one or both parties before the complainant. Charges of adultery and enticement may be easy to lay but difficult to disprove. When these charges are laid, in our Melanesian context, as indeed, in any society, it becomes a seedbed for much contempt, shame and annoyance. The accused person’s good name and the sense of integrity is at stake and is often lost. We believe there should be defences to these actions, to ensure first that actions are not brought lightly and that compensation is not ordered where the facts do not substantiate the action.
The first defence of consent or connivance by the spouse of the guilty party is necessary to counter the argument put to us by some people that if the remedy for adultery is compensation, then a husband or a wife could encourage her spouse to commit adultery with a view to collecting compensation in courts. It was argued that courts would be turned into fee collecting houses for prostitutes. This defence will ensure that spouses who agreed to acts of adultery or enticement cannot expect sympathy from the courts.
The second defence is necessary to protect children. We have chosen the age of puberty because it seems to us that customarily it was an important age of determining adulthood. Besides, a child who is below the age of puberty, is unlikely to cause harm by committing adultery. His acts should be treated as childhood aberration rather than as a matter to give rise to a court action.
The third defence is forgiveness. This is based on the customary practice of forgiving wrongs in most parts of Papua New Guinea. We believe that where a spouse discovers adultery or enticement and forgives an adulterous spouse or the enticer, then that stops future proceedings. We believe this is consistent with our traditions. Where the innocent party does not wish to embarrass his spouse he may forgive the spouse. Forgiveness of one party should be treated as forgiveness to both parties to adultery. This would stop the possibility of old acts of adultery being used as blackmail in disputes between spouses. Forgiveness would relate only to the past acts. It would not relate to any future acts of adultery or enticement. If a spouse forgives a future act, that would amount to consent or connivance. We believe this defence would also enable both parties to get together and settle their problems, without the need to go to courts if they consider that action to be in their best interests. It should be remembered that court actions often create even greater social disorder.
The fourth defence is one analogous to the defence in Section 19 of the Sorcery Act, 1971. If a person consents to an act of adultery only because he or she has been subjected to an act of sorcery which is accepted under the custom of the person’s social group as requiring the person to have sexual intercourse in circumstances amounting to adultery, then if that person is made a defendant to an action for adultery, he or she could prove the act of sorcery and the custom and, as a result, have the action for adultery against him or her dismissed. The action would not, however, be dismissed against the other party to the act of adultery.”
All that is required to amend regulation 81(1), if enticement is to be retained as an offence, is a simple provision along these lines:
“If the spouse of a person has been persuaded to live apart from or away from his or her spouse, with the intention that the person so persuaded have sexual intercourse with the enticer or the persuader or some other person, is liable to civil or criminal proceedings or to both”.
To such a provision should be added defences which should include consent, or connivance or forgiveness by the complainant.
Customary perceptions and beliefs are always taken into account by courts, to reduce sentences. It may be that customary perceptions and beliefs should be taken into account in sanctioning breaches of the social mores of the people. But, if this is to be done, then either s. 37(2) of the Constitution is amended or an Act of Parliament is enacted to give the courts that specific power. These options not being available, I can do no more than protect the liberties of the citizens given to them by the Constitution.
Solicitor for appellant: Mr D McDermott Acting Public Solicitor
Counsel: Mr N Kirriwom
Solicitor for Respondent: Mr L Gavara Nanu Public Prosecutor
Counsel: Miss C Bourke

[cdlviii](1963) P.&N.G.L.R., 108; see also Law Reform Commission of Papua New Guinea Abolition of Native Regulations Working Paper No. 1 of August, 1975 and Report No. 2 of 1975.
[cdlix]Law Reform Commission Report No. 2 of October, 1975.
[cdlx]Native (Amendment) Regulations (P) No. 63 of 1975 and Native Administration (Amendment) Regulation (N.G) No. 64 of 1975; and in force on 20th February, 1976.
[cdlxi]The Laws of the Territory of New Guinea 1921 - 1945. (Annotated) Volume IV at p. 3780.
[cdlxii]See s.37(2) of the Constitution of the Independent State of PNG.
[cdlxiii](1961) 2 All E.R. 446, (1962) A.C. 220, 45 Cr. App. R. 113
[cdlxiv]S.57(1) of the National Constitution.
[cdlxv]S.57(1) of the National Constitution.
[cdlxvi]S.57(1) Constitution of the Independent State of P.N.G.
[cdlxvii]See section 5(a) Law Reform Miscellaneous provisions Act, 1970 (UK).
[cdlxviii]See section 5(a) Law Reform Miscellaneous provisions Act, 1970 (UK).
[cdlxix]See section Schedule 2.2(3) of The National Constitution.