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Re Wagi Non [1991] PGNC 36; [1991] PNGLR 84; N959 (27 February 1991)

N959

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

RE WAGI NON

AND SECTION 42(5) OF THE CONSTITUTION

Mount Hagen
Woods J

27 February 1991

INFERIOR COURTS - Village courts - Jurisdiction - Power to order imprisonment - Subject to Constitution - Adultery complaint - Enforcement not to conflict with constitutional rights - Wife’s right to equality of treatment - Circumstances denigrating status of woman - Contrary to principles of natural justice - Order for imprisonment unlawful - Constitution, ss 42(5), 55 - Adultery and Enticement Act 1988.

CONSTITUTIONAL LAW - Special rights of citizens - Equality of citizens - Application of custom - Where denigrates status of female - Contrary to National and Constitutional rights to equality - Imprisonment for adultery - Complaint of relatives - Discretion by husband - Contrary to natural justice and unlawful - Constitution, ss 42(5), 55 - Adultery and Enticement Act 1988.

The Constitution, s 55, provides:

"(1) Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of ... sex."

On a complaint to a village court of adultery made by relatives of a lawful husband who had not supported or seen his wife and children for six years, the wife was imprisoned for failure to pay compensation ordered under the Adultery and Enticement Act 1988. On complaint that the wife had been unlawfully imprisoned,

Held

(1) The enforcement of custom must not conflict with the principles and rights given in the Constitution.

(2) Customs which denigrate women should be denied a place in the underlying law because they conflict with the National Goals of equality and participation laid down in the Constitution.

(3) In the circumstances, the status of the wife had been denigrated by the following matters which were in conflict with the National and Constitutional emphasis on equality:

(a) failure of the husband to complain of the alleged adultery;

(b) failure by the court to promote mediation as required under the Act;

(c) failure to recognise the husband’s desertion of the wife;

and this unjust and harsh treatment was so contrary to the principles of natural justice as to be unlawful under s 42(5) of the Constitution.

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."

27 February 1991

WOODS J: This is a complaint that Wagi Non is unlawfully or unreasonably detained by virtue of an order of the village court at Kerep in the Jimi District of the Western Highlands Province. Wagi Non was taken to the village court at Kerep on a complaint from relatives of her husband that she had committed adultery. She was ordered to pay compensation; however she was unable to pay the amount ordered and was therefore ordered to be imprisoned for 32 weeks.

The first question is how does this matter come before me. This is a matter under s 42(5) of the Constitution and under that section a judge has an overriding discretion to grant a hearing in cases where people claim to be unlawfully or unreasonably detained. These matters come within the knowledge of judges in their position as a visiting Justice. Conflict resolution should not have to rely on strict causes of action and when a judge can see that a problem or right has been ignored or overlooked or restricted and which in a well-run society would be handled efficiently and expeditiously but when it cannot be addressed in time and time is running out then the court must act of its own volition. Section 42(5) gives the court the power to so act. Where unsophisticated village people are imprisoned and do not understand the procedures for appeal and have no facilities to make such an appeal and time of imprisonment is running then the court has a responsibility to act quickly and efficiently. For these reasons I have ordered that the applicant be brought before me and I gave notice to the village court officials that this matter was to be heard by me and in due course the village court officials attended at the court to assist me.

The clear facts of this case are that Wagi Non was properly married some years ago according to custom in her village; however after some time her husband left her and went to the coast to work. It would appear that he has been away for about five to six years and has never returned; however he left her in the care of his relatives and two brothers. She was left with four children to look after and he apparently lives in Rabaul and works on a plantation. There seems to be no dispute that he has never sent her any money, never sent her any support and has never returned to visit her. In the modern world such behaviour would be clearly desertion; however according to the customary law it is suggested that because she was put in the care of her husband’s brothers and relatives she has not been deserted and has been adequately looked after and is therefore still bound to him.

However, one unusual feature of this matter is that it was not the husband who made the complaint to the village court but it was the husband’s relatives. It would also appear that the husband never had and still has no knowledge of what has happened. Surely it is the husband who is the aggrieved party, however he has not come to lay the complaint but it was laid by the relatives and there is no suggestion that he gave permission for this or even knew of it. The new Adultery and Enticement Act 1988 was an attempt by the Parliament to remove the criminal element in the old adultery legislation and the new legislation puts strong emphasis on mediation in adultery situations realising that adultery situations may have arisen out of other family problems. However, it is quite clear that the village court has paid no heed to such considerations in its dealing with this matter. There cannot have been any attempted mediation because the husband was not there to discuss the problem and it is quiet clear that the village court has taken no account of the man’s desertion for up to six years. Surely his desertion for up to six years must be a matter that would be a mitigating factor in any offence she may have committed in the village. The chairman of the village court at Kerep has admitted in court that it is not a good thing that the husband should leave for so many years without caring for the wife. As the chairman said it is not a good idea for the husband to desert his family for that long a period but the wife was well looked after by the brothers of the husband and the adultery is not a good thing to do in the eyes of others. However the village court chairman then goes on to say that if the woman did want a divorce she should have approached the village court officials but she did not do that but she committed adultery with another man from the village without consulting anyone in the village about the dissolving of the marriage.

I cannot help feeling that the going off and leaving the wife and children without his support and protection yet expecting her to remain bound by custom is a custom that must be denigrating to her status as a woman. It is denying her the equality provided in the Constitution, s 55. I am sure that in traditional times the man could not leave his home for such long periods of time and travel so far away so problems of desertion never existed in customary times. Today the courts are now applying the same rules without recognising the difficulties and the obligations of husbands when they do go off for such long periods. The village courts must recognise the nature of the changes in Papua New Guinea and that the enforcement of custom must not conflict with the principles and rights given in the Constitution. I am not saying that a man cannot have several wives and cannot travel but if he chooses to have wives and travel elsewhere he must accord them equality in care and participation and she must have the same freedoms that he has. Customs that denigrate women should be denied a place in the underlying law in Papua New Guinea because they conflict with the National Goals of equality and participation which have been laid down clearly in the Constitution. 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. So for a number of reasons namely: that the adultery charge was not taken by the husband it was taken by the relatives of the husband and the husband knew nothing about this; there was no opportunity for the court properly to mediate the problems between the husband and wife; there was no recognition of the husband’s desertion of the wife by the village court; all these failures tended to denigrate the status of the woman and conflict with the National and Constitutional emphasis on equality.

I am quite satisfied that the woman here has been unjustly and harshly treated and in the circumstances therefore the order for imprisonment goes against all the principles of natural justice. I therefore order her immediate discharge from custody.

Order of imprisonment declared unlawful

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