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Application by ICRAF Re Willingal [1997] PGNC 174; [1997] PNGLR 119 (10 February 1997)

[1997] PNGLR 119

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN APPLICATION UNDER SECTION 57 OF THE CONSTITUTION

APPLICATION BY INDIVIDUAL AND COMMUNITY RIGHTS ADVOCACY FORUM INC. (ICRAF) IN RE: MIRIAM WILLINGAL

MOUNT HAGEN: INJIA J
21 June 1996, 10 February 1997

Facts

The applicant Individual and Community Rights Advocacy Forum a Non-Governmental Organisation sought to enforce the rights of Miriam Willingal under s 57 of the Constitution. Miriam Willingal was given away to another clan by her clan as part of compensation required under Minj custom, for the wrongful death of her father.

The applicant sought declarations and orders from the Court under s 57 of the Constitution claiming that giving away young woman as part of the compensation under the Minj custom was a violation of a woman’s rights under ss 32, 36, 42, 40, 52 and 55 of the Constitution.

Held

The applicant had standing to institute the proceedings under s 57 of the Constitution.
The custom of "head pay" requiring young woman to be paid as part of the compensation was

(i) in breach of ss 32 and 55 of the Constitution

(ii) inconsistent with s 5 of the Marriage Act (Ch 280).

(iii) inconsistent with s 3(1) of the Customs Recognition Act (Ch 19); and

(iv) repugnant to the general principles of humanity.

And accordingly, the court ordered that:-

(1) The members of the Tangilka tribe and Konumbuka tribe of Minj and members of any other tribes associated with these two (2) tribes who may have an interest in and support for the said custom and it’s application and enforcement against all women from Minj and in particular Miriam Willingal, abandon and desist from such custom and customary practices forthwith.

(2) The members of the Tangilka tribe and the Konumbuka tribe or their associates or agents are permanently restrained from enforcing the said custom on Miriam Willingal by request, threat, force or otherwise and that Miriam Willingal be allowed to exercise her constitutional rights and freedoms without hindrance.

(3) Any person found to be in breach of these orders may be reported to this court to be further dealt with.

Cases cited

Acting Public Prosecutor v Unama Aumare & Ors [1980] PNGLR 510.

Acting Public Prosecutor v Aia Moroi [1985] PNGLR 78.

State v Tendi Kalio Ulo [1980] PNGLR 350.

Public Prosecutor v Apava Keru [1985] PNGLR 85.

Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.

The State v Angaun Kakas & 3 Ors [1994] PNGLR 20.

The State v Billy Kauwa [1994] PNGLR 503.

The State v Aubafo Feama & Ors [1978] PNGLR 301.

Counsel

S Balen, for the applicant.

10 February 1997

INJIA J. This is an application by the Individual and Community Rights Advocacy Forum (ICRAF) under s 57 of the Constitution to enforce certain constitutional rights of a young female, one Miriam Willingal of Tumba village, Minj, in the Western Highlands Province.

ICRAF is a community interest group, which is incorporated under the Associations Incorporation Act (Ch. No. 142). According to its Constitution or Charter, a copy of which is before the Court, its objectives include the promotion of the rights and freedoms of the people of Papua New Guinea as enshrined in the internal laws of Papua New Guinea, particularly the Constitution.

Section 57(1) and (2) of the Constitution gives locus standi to any person, be it corporate or natural, who has an interest in the protection and enforcement of constitutional rights or in the maintenance of the principles of rule of law to apply to the National Court for the protection and enforcement of a person’s constitutional rights. Section 57 (1) and (2) provides:-

"s 57 Enforcement of guaranteed rights and freedoms.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the courts, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2) For the purposes of this section -

(a) the Law Officers of Papua New Guinea; and

(b) any other person prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question, have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest. (My emphasis)

At the hearing of this application, I was satisfied that ICRAF was one such person. I granted leave to make the application on behalf of Miriam Willingal under s 57.

A Post Courier newspaper headline article published on 03rd May 1996 entitled "Girl Sold in Death Compensation" prompted ICRAF’s involvement in this matter. After ICRAF filed these proceedings, the court proceeded to conduct a preliminary inquiry into the matter. The court directed the attendance of Miriam Willingal and other village clansmen from both sides of the alleged compensation arrangement. They promptly attended in court. The court ascertained directly from Miriam that she was in fact subjected to some kind of threats to her life and personal safety. She needed some protective orders.

Miriam, however, did not disclose the details of the threat and names of any particular person issuing the threats. That information was sufficient to justify an interim protective order. To implement the order, Father Robert Lak of the nearby Rabiamul Catholic Church was present in court to take her into the Church premises where she could stay pending the conclusion of these proceedings. It appeared that this had been pre-arranged. On 21st June 1996, with the consent of Miriam, the court ordered, inter alia;-

(1) That until further order, Miriam Willingal be accommodated in protective custody by Father Robert Lak and the Sisters at the Rabiamul Catholic Church; and

(2) That the Tangilka and Konumbuka tribesmen be restrained from assaulting or threatening Miriam in any way;

On 21st June 1996, the court also issued the following directions as to the future conduct of the proceedings:

(1) That until further order, ICRAF interview all parties involved and file affidavits from interested persons;

(2) That Miriam be interviewed separately and her story be reduced to affidavit and filed in court.

Consequently, ICRAF filed the following affidavits:-

Affidavit of Miriam Willingal sworn 28th May 1996.
Affidavit of Sam Imene sworn 28th May 1996.
Affidavit of Toni Boma sworn 06th June 1996.
Affidavit of Dr. John Muke sworn 06th June 1996.
Affidavit of Susan Balen sworn 10th May 1996.

The orders, the applicant (ICRAF) sought and the alleged facts and grounds upon which the applicant sought those orders are fully set out in the Application. I set them out in full hereunder:-

"3. THIS APPLICATION arises as a result of the following:

"(a) On the 03rd of May 1996, the Post Courier newspaper published the report that the said Miriam Willingal was given to the Konumbuka tribe as part of a compensation payment, including pigs and money in settlement of a dispute arising out of the death of a Konumbuka tribesman, inferring that she was being placed in a position where she would be forced into a customary marriage with a Konumbuka tribesman against her will.

"(b) On the 09th of May, 1996 the Post Courier newspaper reported that the said Miriam Willingal was not willing to marry at this time into the Konumbuka tribe, because she wished to continue her education and to find a job. The said newspaper quoted Miriam Willingal as having said:-

"I am not prepared to marry, my interest is to complete my courses and get a job."

The said facts infringe the rights and freedoms of a person in the following respects:

"(i) a woman is not obliged to do anything that is not required by law, under Section 32 (2)(c) of the Constitution, and may not be forced into a customary marriage against her will.

"(ii) a woman who is exchanged with another customary group as part of a compensation payment, and/or is forced into a customary marriage against her will is subjected to treatment that is inhuman, or is inconsistent with respect for the inherent dignity of the human person contrary to s 36(1) of the Constitution.

"(iii) a woman who is forced to stay in a particular location, village or place, against her will, as part of a customary compensation arrangement, including deprivation of her opportunity to educate herself or to seek employment has been deprived of her right to Liberty of the person, contrary to s 42(1) of the Constitution.

"(iv) a woman who is deprived totally or in part of her ability to make a free choice in respect of the person she is to marry, is deprived of her right to reasonable privacy contrary to s 49 of the Constitution.

"(v) a woman who is forced to stay in a particular location, village or place, against her will, as part of a customary compensation arrangement, is deprived of her right to freedom of movement, contrary to s 52(1) of the Constitution.

"(vi) a woman who is exchanged with another customary group as part of a compensation payment, and or is forced into a customary marriage against her will, is deprived of her right to the Equality of Citizens contrary to s 55 of the Constitution.

"4. The Constitutional Law provisions, relevant are:-

Constitution ss 32 Right to Freedom

36 Freedom from Inhuman Treatment

42(1) Liberty of the Person

49 Right to Privacy

52 Right to Freedom of Movement

55 Equality of Citizens

"5. Accordingly, the Applicant seeks Orders:

(a) that the Sheriff of this Honourable Court cause the tribal leaders of the Tangilka and Konumbuka tribes and Miriam Willingal to appear before the National Court in Mount Hagen at a date to be fixed;

(b) that the National Court in Mount Hagen cause a hearing to be made into the allegations raised in this matter to determine whether or not any of the rights specified have been infringed, and to make any orders or declarations as it may see fit under section 57(3) of the Constitution, and such other Orders as the Courts deem necessary."

At the hearing, the relevant leaders of the Tangilka and Konumbuka tribes together with Miriam Willingal appeared voluntarily at the request of the court. It was not necessary to involve the summoning powers of the court or the Sheriff’s powers, if any. ICRAF was then asked by the court to interview all interested leaders, any person who might have an interest in the outcome of the application, both for and against, and file affidavits.

The affidavits filed by ICRAF mentioned already were derived as a result of this exercise. On this basis I saw no reason for the court to call any other witnesses on the Court’s own initiative. I am satisfied that all persons who have an interest in the proceedings have had the opportunity to register their interests through this process. I will deliberate only on the evidence before me.

There are four (4) key witnesses in these proceedings. Miriam is a young woman aged 18 years. She is a Grade Ten (10) student at the College of Distant Education at Mt. Hagen. She is from Kumu Kanem clan of the Tangilka tribe of Tumba village, Minj. She is the eldest daughter of the late Willingal Koidam Kupil. Her father’s mother comes from the Konumbuka tribe. When Miriam was young, there was a tribal fight between the Tangilka tribe and the neighbouring Komun Kambilka tribe. As a result of the tribal fight, her father left Miriam, her mother and other children to live with Toni Boma of the Konumbuka tribe at Rot Bung village. Toni Boma is Miriam’s maternal uncle.

Sam Imene is married to Miriam’s father’s sister. He also looked after Miriam. Sam comes from the neighbouring Neneka tribe. Her father continued to live with his tribesmen of the Tangilka tribe. The tribal fight lasted for some fifteen (15) years.

On 26th April 1996, police shot dead Miriam’s father at Wei village in the process of looking for another Tangilka tribesman, one Robert Mond Awa. As a result, the Konumbuka tribesmen blamed the Tangilka tribesmen for indirectly causing his death. Their wrongdoing, through Robert Mond Awa, caused the Police to come to Tangilka territory and shot the deceased. The Konumbuka felt they had lost someone dear to them, a son of one of their daughters. For this reason, the Konumbuka demanded from the Tangilka tribe compensation for his death. This type of compensation is referred to as "head pay."

The "head pay" is a custom of the people in the Minj area. It is clear from the evidence that the payment of compensation by the deceased’s tribe to the deceased’s mother’s tribe for the death caused by unnatural causes is widely practised in the Minj area. It is also clear from the evidence that "head pay" compensation takes the form of payments in money, pigs and other valuable personal items. What is not clear, and that is something I have to decide, is whether "head pay" includes payment in the form of young single women.

The best evidence on "head pay" could have come from local independent experts such as village elders, village councillors and village magistrates, but no such evidence is before me. Neither Miriam nor Sam Imene and Toni Boma are such experts. Sam Imene is a lecturer at Highlands Agriculture College in Mt. Hagen. Toni Boma is a retired CIS Warder living in the village. Dr. John Muke holds a doctorate degree in Anthroarchaeology. He is a lecturer at the University of Papua New Guinea. He is a member of the same sub-clan as Miriam’s father (Kumu Kanem) of the Tangilka tribe and a close associate of Miriam. All these witnesses are educated, exposed to modern ways of living and have spent much of their time away from their village.

Nevertheless, I must make do with what evidence I have. Out of them, I am impressed by the evidence of Dr. Muke. Although he is not a village expert in local custom, his exposition of the custom and the underlying complex social network and values impressed me.

I will reproduce the pertinent parts of his affidavit regarding custom and its application to the present facts. Dr. Muke says in his affidavit as follows:

"1. By virtue of birth, I am a member of the Kumu Kanem subclan of the Tangilka tribe. The late Willingal is a clan father and also a path person to my children. He was the linking person to my wife and therefore, acted as an immediate kin within my own clan. As a result of this close kin ties I supported Miriam Willingal both financially and morally. Miriam confided to me and shared with me her problems and prospects.

I was on sick leave and living with my affines (brother-in-laws) the Tau Kanem at Rot Bung village, Minj, Western Highlands Province when Koidam Willingal was negligently shot dead by the Police.
Koidam’s maternal uncles are the Tau Kanems of Konumbuka tribe. The bulk of the population resides around the Rot Bung area. Koidam’s wives and children, as well as a majority of the Kumu Kanem clansmen live as war refugees within the Tau Kanem territory. The funeral ceremony for both Robert Mond and Koidam was conducted at Rot Bung.
The first demands from the late Koidam’s uncles was to establish those wronged and seek payments. The nature of Koidam’s death was as follows. The forty five (45) years old was illiterate and did not have any training for the use and discharge of firearm. Furthermore, at the time of the police raid, Koidam and Robert were sleeping in separate houses. The distance between the houses was separated by the Numants River.
It would have taken more than 15 minutes for Koidam to provide any real protection for Robert. Up to the time of his death, Koidam had never appeared in any court of law. He is a prominent leader of the Kumu Kanem Clan and to his maternal uncles he has never committed any crimes to warrant his death.
The Tau Kanem established that, they had always exercised their divine curative powers and ensured that Koidam rose to prominence and live a long life. They argued that they did not influence any curse over Koidam resulting in his death in such a manner as he did. The Tau Kanem’s own transplant was terminated and as root people, they felt that Kumu Kanem had violated their divine relationship. Their daughter, Koidam’s mother, who put so much effort to raise Koidam, was destroyed by the Kumu Kanem.
Therefore, the Tau Kanem demanded that Koidam’s bones or head must be returned to his mother’s brothers sub clan. The category of payment comes under the wider nexus of life-cycle payments. It is not a direct compensation payment as that is usually required in homicide compensation. This payment is referred to as in Wahgi "yi peng kon to ng ondi" man skull. I return it in a net bag or bilum. This is simply phrased as "head payments."
The head payments are made usually in the form of material items either when the male is alive (by himself) or after he died (by his clansmen). When the occasion arises the mother’s brothers request that a granddaughter of their sister be returned to them. That request is described as "a skull is returned in a net bag." Since net bag denotes woman, this practice falls within the wider category of marriage system.
Such marriage practice is called prescriptive cross-cousin marriage and this enables marriage partner clans to be alternate wife givers at three (3) generational levels. Prescriptive cross-cousin marriage does not involve the selling or forcing of women to marry into a clan that she does not want. It has always been a customary practice among the Wahgi for girls to choose their own partners, even if social constraint were imposed.
When Koidam was murdered by the police his uncles demanded that the Kumu Kanem return this "skull in the net bag." The Kumu Kanem weighed this request against the existing more credits and debits relations between the two (2) groups. The Kumu Kanem acknowledged that they were indebted to Tau Kanem on several grounds.
In the first place, as refugees they were living amongst the Konumbuka tribe. The two groups have been war partners for the last two hundred years. There are more than five (5) generations at marriage, Koidam’s immediate family were looked after by his maternal uncles since 1979. They did not pay any rent to the Tau Kanem for use of land or other services.
Second, through Koidam as a middle person, the first Tau Kanem blood after contact provided the road as a path for a pool of five women to marry into the Kumu Kanem. These group of Tau Kanem women have produced 10 males and therefore, increasing the political status and size of the Kumu Kanem.
Third, the Kumu Kanem have given women in return, but they have to produce enough off springs to offset the imbalance.
On the above grounds Kumu Kanem agreed to restore the imbalance in the credit - debit relations and create new ones, as well as resolve any potential disputes. Accordingly, the Kumu Kanem made a contribution of 24 pigs, offered to give one girl as part of the prescriptive cross-cousin marriage. At the time of the exchange it was only agreed in principle that one of the Kumu Kanem daughters would marry into Tau Kanem. It was up to the girl to decide. In this kind of exchange, girls are not forced to marry any particular person.
When the pigs were exchanged in respect of the head pay, the Kumu Kanem indicated that a "net bag" would be returned in future. Kumu Kanem did not make any particular arrangement with Tau Kanem when the girl concerned will be given. They agreed that Miriam was an ideal choice. Miriam’s family settled in well in the Tau Kanem territory and to refuse Tau Kanem’s request implied that the Tau Kanem would request proper compensation of use of their land and resources for the period Miriam’s mother and other siblings were in Tau Kanem territory.
It would also destroy the continued reciprocal relations that the two groups enjoyed in other contexts. Furthermore, the death of Koidam meant that the welfare of Miriam and the family could not be maintained by next of kin as they were scattered as refugees. It was therefore, socially beneficial for Miriam as she was looked after by her uncles. They would ensure that her marriage and future prospects were not hampered by the death of her father.
Koidam owns large blocks of coffee in his uncle’s land and these had to be maintained. A lot of Kodiak’s wealth was with his maternal uncles. It seemed reasonable to relinquish Miriam’s birth right to a place and tribe so that all the welfare, prospects of marriage and future credit-debts relations that she created is the responsibility of Kodiak’s maternal uncles.
Thus, it was agreed that Miriam marry where she was in the Tau Kanem territory and that she marry a Tau Kanem. If she decided to marry someone of her own choice, she will have to consult with her father’s maternal uncles rather than her own clan (i.e. the Kumu Kanem).
Now to the question of the right to choose one’s own partner, Miriam’s rights were not violated because she still has the same freedom as all the other Wahgi girls. They are all allowed to entertain and court any males of their own choice. If Miriam complies with the two clans general wish, the respective clans will agree that a head payment in the context of returning a skull in the net bag has been completed. Otherwise, the Kumu Kanem’s debt to Tau Kanem remains an open issue until at such time that the Kumu Kanem girl marries a Tau Kanem man.
If Miriam decides to marry a Tau Kanem, bride price payments will still be exchanged between the parties concerned. At this point in time, Miriam is still a free woman. The Tau Kanem has not forced her into marriage. They will have to get her permission to do so. They have not sold her as part of compensation, but as an agreement to return her as part of life-cycle payments. They have not done anything to take her out of her education, dreams or aspirations as she has been looked after throughout her education by Koidam’s brother-in-law Sam Imene. The Kumu Kanems’ respect the efforts of Sam Imene."

I should also reproduce the pertinent parts of the affidavits of the other witnesses.

Toni Boma says as follows:-

"1. As stated above my father’s sister (of the whole blood) by the name of Tune married Kupil of the Kumu Kanem clan of Tangilka tribe as a result of which Miriam’s father Koidam Willingal was born. Willingal became a tribal leader and was married with two wives. He has several children at the time of his demise on the 12th of April 1996, at the hands of the Police in his own village.

On or about 1979 tribal warfare erupted between the Tangilka and the Komun Kambilka tribe and as a result of which Miriam’s father left his wives and children including Miriam with me. Thereafter, with the exception of the deceased and other men of the tribe fighting at that time, the family including other members of the tribe fleeing the fight resided on our land and are still there now. The fight has lasted for 15 long years with the introduction of homemade guns in 1990.
I have therefore, raised Miriam up as my own child since she was about the age of eight (8) years old. Sam Imene has also helped in raising Miriam. Therefore, according to our custom if Willingal had not died, I, Sam Imene and Willingal would have distributed Miriam’s bride price on her wedding. Because he is dead, Sam and I will distribute the bride price.
Miriam’s father was shot dead by the police at Wei village near the mountains on the 12th of April, 1996. We the Konumbuka tribe felt that the Tangilka tribe was responsible for the early death of the deceased under such circumstances wherein he would not have been shot at all. The circumstances being the distance between the shooting of Mond and Willingal’s house and the location of his residence being in the mountains, we felt that the Tangilka tribe members had brought the police onto their land in search of Mond as a result of which Willingal had been executed by the police. We strongly felt that the police on their own would not have ventured far inland.
As a result of the above circumstances, we believe that the Tangilka had caused Willingal’s death hence, in accordance with prevailing custom practised within Western Highlands Province my tribe demanded "head pay" from the Tangilka tribe. This is a payment normally requested by the deceased mother’s tribe for the unnatural death usually at the hands of another person. If death arises out of natural causes the maternal tribe or clan cannot demand the head pay. The request is made only when a person is directly or indirectly responsible for the death. The payment is made with pigs, money and in women.
Consequently, as a result of this custom my tribe requested head pay from the Tangilka tribe the sum of Twenty Thousand Kina (K20,000.00), twenty five (25) pigs and two (2) women as Koidam’s head pay. It is only a request and the actual payment will be determined by the Tangilka tribe. I will only accept what is given to me. I do also say that we do not specifically identify any women in our request.
Had another tribe caused the death of Willingal I would have asked that tribe to pay me head pay. Any other compensation would have been received by the Tangilka tribe. The head pay is payable only to the maternal uncles as the keeper of the deceased’s good health and life. We believe that the maternal relatives of a person are responsible for the length of time a man lives on this earth. If the person is not on good terms with his maternal relatives he does not live longer. Further, where there is high regard for the person it is our customary belief that the person will live to his old age unless he dies early.
It is our belief that the goodwill and high regard we the Konumbuka’s have always had for the deceased has protected him all through the period of tribal warfare and no harm had ever befallen him. Now, Willingal has died at the hands of another person and as such his death is not natural. Therefore, the one causing his death must pay us Willingal Koidam’s head pay. In this case because the policemen were responsible we are unable to ask them. However, because the Tangilka tribe were also responsible they have been asked to pay us head pay.
As for Miriam, she need not come if she does not want to. If she does decide to come as Koidam’s head pay, she can marry a Konumbuka man or man of her own choice. I will always receive the head pay. The payment need not necessarily be made now. I can wait so many years and receive my head pay when another Tangilka women marry into a Konumbuka man. Thus, if Miriam decides not to marry now I can always wait for several years before collecting the payment."

Sam Imene says as follows:-

"1. I am the guardian of Miriam Willingal. I am from the Neneka tribe of Kamang village, Minj, Western Highlands Province and I am married to a Tangilka woman, the sister of Miriam’s father.

When Miriam was about the age of 12 my wife and I took her under our care while she was attending Tambul High School. Since then we have maintained and educated her. When she dropped out of school in 1993, we arranged for her to attend Mt. Hagen Commercial Training Centre in 1995. This year she is enrolled at the College of Distant Education (CODE) here in Mt. Hagen doing her Grade 10. We have always desired that she be educated and trained for formal employment so that she would be financially independent in future.
Koidam Willingal was an elder and clan leader of the Kumu Kanem clan of Tanglika tribe. He was a subsistence farmer and was married with two wives. He was shot dead by the police on the 12th of April 1996, during a police raid at the Wara Numants area.
The Tangilka tribe had engaged in tribal warfare with Komun Kambilka, another tribe. As a result of this most of the members of the Tangilka clan dispersed to on other neighbouring tribes with a minority remaining Tangilka land. The deceased Koidam Willingal was one of those who chose to remain on his land.
At the time of the raid the deceased was residing in a home several kilometres away from Robert Mond in the Wara Numants area along the ridge of Kubor Range. I often met with the deceased to discuss family as well as other matters of interest.
When the deceased (Miriam’s father) was shot dead in his home after Robert Mond was shot several kilometre away, the Konumbuka tribe who is the deceased’s mother’s tribe blamed the Tangilka tribe for his death.

They said that the deceased who lives inland and further into the mountains would not have died, had it not been for the Tangilka tribesmen whom the Konumbukas’ believe brought the police to their land.

Hence, the Konumbuka tribe according to custom demanded excessive compensation in pigs and thousands of kina called "head pay." They also demanded for two girls from the Tangilka tribe as part of the head pay.
This particular custom of demanding head pay is commonly practised by the Minj people even today. The custom of demanding for women as part of "head pay" is still practised, the last being in 1989 between the Tangilka and Konumbuka tribes. However, where the payment in pigs and money are sufficient to satisfy their demand, there is no need for a woman to be given. Otherwise, the woman is given to the tribe demanding, "head pay." The woman does not have the choice once the tribe has made the decision to send her across to the other tribe.
So far twenty four (24) pigs have been paid by the Tangilka tribe to Konumbuka tribe. This payment has been contributed to by both the Tangilka and other people who would in future require repayment with interest and all these have to be repaid by Miriam’s immediate family. In which case, Miriam would always play a major role in the repayment whether she marries into the Konumbuka tribe or not.
However, if Miriam does marry into Konumbuka tribe the compensation payment to the Konumbuka tribe would be decreased substantially and she would not be obliged to carry the additional burden in future. At this point in time no cash payment has been made yet, both tribes are concerned about bringing those responsible for Koidam’s death to justice. It is also hoped that once the court established the manner in which the deceased died, compensation may be distributed by those responsible.
Further, the deceased’s immediate family have decided to ask Miriam to marry into Konumbuka tribe to prevent the Konumbuka tribe from chasing Tangilka tribe members currently settling on their land. Miriam’s two mothers and their children currently residing on Konumbuka land are in danger of being harmed and evicted should the Tangilka tribe refuse to meet the compensation demand.
At the moment Miriam is living with me. However, as she does not have any choice she will currently have to go to Toni Boma who will decide who she is to marry."

Miriam Willingal says as follows:-

"1. I am the person on whose behalf this proceeding has been commenced. I am currently enrolled in Grade Ten (10) at the College of Distant Education (CODE) here in Mt. Hagen. The matters deposed to in the succeeding paragraphs are from my own observation and knowledge and are therefore, true to the best of my knowledge and memory.

I am the eldest daughter of Willingal Koidam Kupil of the Tangilka tribe within the Minj area. My father married two (2) wives of which my mother is the first. I have five (5) sisters (including half sisters) and two half brothers. All are currently living on Rot Bung village on Konumbuka land.
When I was very small a tribal fight started between the Tangilka and the Komun Kambilka clan of Sikmil village, Minj, Western Highlands Province as a result of which my father left us with his mother’s relative Toni Boma at his village at Rot Bung.
I grew up in both Toni Boma and Sam Imene’s house. Sam Imene is married to my father’s sister.
The tribal fight mentioned in paragraph 3 above has lasted for almost 15 years. All these times my father has been living on his land at Tumba with the other men during the tribal fight.
On the 12th of April 1996, the police shot my father at Wei village killing him. I was at Rot Bung village when the news reached us. I was a member of the party that brought back his body from Wei village to Rot Bung village where his mother’s relatives viewed the body before returning him to the provincial morgue in Mt. Hagen.
The day after his death, (on Saturday) I was there at the funeral ("haus krai"). I heard several members of the Konumbuka tribe say that during the 15 years of the tribal fight, Koidam Willingal had never been injured. Now because the Tangilka clan had brought the police onto their land to look for Robert Mond Awa, Willingal had been shot by the police. They said that because the Tangilka themselves had brought the police onto their land, the Konumbuka tribe demanded "head pay" from the Tangilka tribe for the loss of Willingal’s life at their hands.
The Konumbuka tribe said that this payment would not have been sought from the Tangilka tribe if Willingal had died of natural causes. Hence, they demanded from the Tangilka tribe two women, twenty-five pigs and twenty thousand Kina (K20,000.00) as "head pay."
During the whole of my lifetime I have seen other tribes in similar position as the Konumbuka tribe demand "head pay" from other tribes for the death of a man. However, I have not seen or heard any demand for women as head pay. I am aware that this custom was practised prior to the arrival of the missionaries. The demand for the women did not identify any particular person, but was made strongly and continuously during the funeral.
When the demand was made the male members of my "haus lain" were afraid as they were residing on Konumbuka land. As such they came and asked me to go to Konumbuka as head pay. If we refuse they will cause us harm or remove us from their land. They said they came to ask me to go to them because there were no eligible girls in our clan.
At all material times after the demand was made, I understood the demand to mean that the Konumbuka tribe wanted two women as wives. Because of that understanding I replied that if they wanted me to go, I would go as my father’s "head pay" on the condition that I be allowed to finish my education. At the same time I was not happy. I felt depressed and unable to think clearly because I felt pressed to marry. I was and still am not in a position to get married. My main concern is to complete my education. At the same time they did not say whom I was to marry. I felt lost and humiliated in the eyes of other people and ashamed at being used as a form of payment.
If I refuse, I fear that the Konumbuka tribe would harm the other girls in my tribe. Not only the girls, but also the women of the tribe would be at the mercy of the Konumbuka tribe so I agreed to go, but only after I complete my education.
I am doing well in my education and am interested in pursuing technical training. This will take several years. I want to work first and earn a living. It is important for me to be qualified in an area where I can obtain employment as a security in life. I do not want to be a villager living on subsistence farming.
Further, I am not afraid of Toni Boma who is like a father to me. I know that the people such as Toni Boma have the best of my interest at heart. However, I do not trust or I believe that the younger men will behave the same towards me once the demand has been made. I had agreed to go over to them. I feel that the younger generation may be too impatient. On these grounds I feel threatened and am under pressure.
For the reasons stated in the foregoing paragraph, I went public hoping that somebody might help me."

I have already found on the evidence that there exists a widely practised custom in the Minj area of compensation paid by the deceased’s tribesmen to the deceased’s mother’s tribesmen upon demand, where the deceased’s tribesmen are at fault in causing the deceased’s death. This type of compensation is called "head pay."

This compensation is different from other types of compensation payment such as where compensation is demanded by the deceased’s tribesmen and paid for by the members of the tribe whose tribesmen are at fault in causing the death of the deceased. Such compensation payment appears to be straightforward and less complicated. The form it takes appears to be payment in kind or goods. Money and pigs feature prominently in these payments. It does not involve payment in the form of human beings. This kind of compensation is widely practiced throughout the Highlands region and in many parts of Papua New Guinea. There is no problem with this type and form of compensation. Indeed, customary compensation in this form is accepted by the courts in both civil and criminal courts. In civil cases for instance, compensation in money, pigs and valuable properties paid by the driver of a motor vehicle direct to the injured person or the relatives of the deceased person killed in a motor vehicle accident, is deducted from damages awarded to the plaintiff: State v Tendi Kalio Ulo [1980] PNGLR 350. In criminal cases, customary compensation in money, pigs and other valuable personal properties in homicide cases has always been taken into account as a mitigating factor on sentence: eg; see Acting Public Prosecutor v Nitak Mangihonde Taganis [1982] PNGLR 299, and Acting Public Prosecutor v Unama Aumane & Ors [1980] PNGLR 510. It is also a form of punishment in criminal cases: see Criminal Law (Compensation) Act 1991. Also see The State v Angaun Kakas & 3 Ors [1994] PNGLR 20, and The State v Billy Kawa [1994] PNGLR 503.

The present type of compensation payment ("head pay") is complicated. It involves the deceased’s tribe paying compensation for the death of one of its own tribesman to a tribe that is related to the deceased’s clan by marriage. This custom appears to be widely practised in the Minj area.

Such a custom has far more complex underlying social values associated with inter-tribal marriage in a complicated network of relationships. This type of compensation is referred to as "head pay." It appears from the evidence that the payment of "head pay" in the form of goods, pigs and money as in other type of compensation payments is widely practised and accepted. I see nothing wrong with the concept of "head pay" involving these forms of payment of "head pay." The suggestion of payment of "head pay" in the form of young women as part of "head pay" concerns me, and that is the focus of these proceedings. The question is whether the custom of including young women as part of "head pay" exists in the Minj area? If so, how is it applied and enforced?

On this issue it is necessary to make findings of fact on the evidence in two (2) areas: first on whether such a custom exists and is practiced today, and second, whether or not such custom was actually enforced or threatened to be enforced against Miriam Willingal.

In relation to the first area, the custom of compensation must be found as a matter of fact before its application can be considered. Section 2 of the Customs Recognition Act (Ch. 19) sets out the rules as to proof of custom in the following terms:

"Section 2 Proof of custom:

(1) Subject to this Section, questions of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as though they were matters of fact.

(2) In considering a question referred to in Subsection (1), a court -

(a) is not bound to observe strict legal procedure or apply technical rules of evidence; and

(b) shall -

(i) admit and consider such relevant evidence as is available (including hearsay evidence and expressions of opinion); and

(ii) otherwise informs itself as it thinks proper.

(3) For the purpose of the decision on a question referred to in Subsection (1) a court may -

(a) refer to books, treatises, reports or other works of reference, or statements by Local Government Councils or committees of Local Government Councils (whether published or not); and

(b) accept any matter or thing stated in such works as evidence on the question; and of it’s own opinion, call such evidence or require the opinions of such persons as it thinks fit, but this subsection does not limit in any way the discretion of the court in obtaining evidence or informing itself on the question."

In the absence of any publication, books and treatises on this particular custom before me, I will only consider the evidence of custom given by Dr. John Muke, Same Imene, Toni Boma and Miriam Willingal.

On the evidence, I make the following observations and findings of fact as to the custom of including women in "head pay" compensation.

There is no clear evidence of a custom of dealing with and including women by force in a "head pay" between tribes in the Minj area.
There is and has always been a general custom of the deceased’s mother’s tribesmen requesting the deceased’s tribe to return a young unmarried woman from the deceased’s tribe, preferably the grand-daughter or great-grand daughter of the deceased’s tribe, to marry a man from the deceased’s mother’s tribe. This request is made as part of the "head pay" at the time the "head pay" compensation in the form of material goods is requested or demanded. Depending on how it is put, it may be a request or a demand. No names of girls are mentioned. No names of the bridegroom from the deceased’s mother’s tribe is mentioned. No time frame is fixed for the young woman to be given. The deceased tribesmen accept this request and make a commitment on behalf of all the men and women of the tribe. It is understood by both tribes that the request will be honoured by the tribe at any time. It could take days, months, years or even the lifespan of several generations for the commitment to be fulfilled. Everyone in the tribe including the women are aware and co-partakers in this commitment. But the women are passive co-partakers and the decision is made by the men. Women have no right to make customary commitments on behalf of the tribe.

It is mutual. It is up to the young girl of the tribe to take up the challenge when they feel like. The decision by the girl to take up the challenge appears to be a voluntary decision on the face of it.

In this process, people from the girl’s tribe talk about their common "head pay" commitment with the young girl’s of the tribe. The primary focus of attention appears to be the young girls of marriageable age closely related to the deceased by blood. As to what kind of advice, pressure or inducement is brought to bear on the eligible girl by both tribes, appears to depend on the circumstances. The more closely related the girl is to the deceased and the more mature the girl is to marry, the more intense the pressure appears to be. In extreme cases, this could involve certain tribesmen taking more drastic measures such as threat of violence or even death. There appears to be no safeguard against such extreme elements.

If no suitable girl is available, the other distant girls are approached. If and when a girl from the deceased’s tribe courts and finds a suitable young man from the deceased’s mother’s tribe, and they agree to marry, the marriage takes place in the usual way. The bridegroom’s tribe pays bride price. The marriage is understood by both tribes to be a fulfilment of the earlier commitment in "head pay." I find that this is the nature of the custom that exists up to this day.

There appears to be three (3) underlying reasons behind this custom:-

(1) It allows for reciprocal exchange of women between the two tribes and ensures continuity of inter-tribal relationships, tribal security and stability.

(2) Because the deceased’s mother married into the deceased’s tribe and bore them children, one of their offspring or relative should return to marry her mother’s tribe and bear them children.

(3) Because the deceased is an offspring of one of their women and the deceased’s death is attributed to the fault of his own tribesmen, it is a loss to the deceased’s mother’s tribe and the life lost should be replaced by another life.

There could be a whole lot of other underlying reasons for this custom, but these are the main ones that become apparent to me from the evidence.

In relation to the second area of my findings of fact, I find that in accordance with this custom, the Konumbuka asked for two women from the Tangilka as part of "head pay" for the death of Miriam’s father. I find that no names of girls were mentioned at the "head pay" ceremony. No bride’s name was mentioned and no time frame was fixed for the Tangilka to honour the commitment. I find that the Tangilka made a commitment for some girls from their line to marry a man from the Konumbuka as part of "head pay" payments. I find that the Tangilka discussed among themselves which girl was to honour the commitment. I find that in the course of the discussions, Miriam was the primary target of the discussions and considered a suitable candidate for the following reasons:-

(1) She was an adult girl of marriageable age.

(2) She was the immediate daughter of the deceased.

(3) The Konumbuka had contributed to her upbringing, for example, Toni Boma, a Konumbuka had looked after her.

There is no evidence of the second woman being the subject of discussions. I find that Miriam was approached by her own tribesmen to honour their commitment in her lifetime whilst she was of marriageable age and young. I find that because she was of marriageable age and the daughter of the deceased, immediate pressure was brought to bear on her. I find that Miriam did not consent to the request. She felt unhappy and depressed because she was going to be included as part of her father’s "head pay". She also felt at a loss because she did not know whom her bridegroom was. She felt humiliated in the eyes of the public because she did not like the idea of being used as a form of payment. I find that Miriam is living in fear. She feels threatened and pressured by men from both the Tangilka and the Konumbuka, that they may get too impatient and try to enforce the commitment on her.

The Konumbuka and Tangilka tribesmen of Minj, their customs and customary practices, like people of any other small societies in Papua New Guinea, are part of modern Papua New Guinea. They are governed by our national laws.

If their customs and customary practices conflict with the national laws, then they must give way to our national laws. This is a requirement of our national laws of which the Constitution reigns Supreme.

The Constitution, Schedule 2.1 (1) & (2) provides for the recognition and enforcement of a customary law in the following terms.

(a) Sch. 2.1. Recognition, etc., of custom

(1) Subject to Subsection (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.

(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.

Is that part of the custom of "head pay" which includes women that I have found and is practiced today in the Minj area and in particular in Miriam’s case inconsistent with a Constitutional Law, or a statute, or repugnant to the general principles of humanity?

The applicant submits that the custom as applied in Miriam’s case is inconsistent with and in violation of Miriam’s constitutional rights guaranteed by s 32 (2) (c), s 36 (I), s 49, s 51 (1) and s 55. I will deal with each constitutional right alleged to have been violated.

(a) Section 32 - Right to Freedom:

This section provides:-

(1) Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea, and of society in accordance with this Constitution, and in particular, with the National Goals and Directive Principles, and the Basic Obligations.

(2) Every person has the right to freedom based on law, and accordingly has a legal right to do anything that:-

(a) does not injure or interfere with the rights and freedoms of others, and

(b) is not prohibited by law,

and no person:-

(d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b).

(3) The section is not intended to reflect on the extra-legal existence, nature or effect of social, civic, family or religious obligations, or other obligations of an extra-legal nature, or to prevent such obligations being given effect to by law."

It is submitted that Miriam was obliged to marry into a tribe against her will in accordance with the customary law of "head pay" and to the extent that the customary law rule restricts her freedom of choice of a husband of her wish, the customary law should not be permitted by the court to be recognised and enforced.

In this context, it is also submitted that under s 5 of the Marriage Act (Ch. No. 280), women are given special protection against forced customary marriages. That section prohibits forced marriages in the following terms:-

Section 5 - Protection of Women:

"(1) A Magistrate of a Local Court may, forbid the marriage of a woman in accordance with custom, or purportedly in accordance with custom where the woman objects to the marriage, or purported marriage and: -

(a) excessive pressure has been brought to bear to persuade her to enter into the marriage; or

(b) in the circumstances it would be a hardship to compel her to conform to custom.

(2) A person who marries or purports to marry, a woman in contravention of an order under Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding six months, or both."

It is further submitted that to oblige or pressure a woman to marry someone from another tribe against her will restricts her right to freedom to choose a partner in marriage on equal terms with men. It is submitted that this is contrary to the Constitution, National Goals and Directive Principles No. 2 (5) and 12 which provide:-

"2. Equality and Participation:

We declare our second goal to be all citizens to have an equal opportunity to participate in and benefit from the development of our country.

WE ACCORDINGLY CALL FOR -

(5) equal participation by women citizens in all political, economic, social and religions activities, and....

(12) recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality."

I agree with all these submissions. The findings of fact I have made earlier support these arguments. I find that the Minj custom of asking or obliging a woman to be part of "head pay" is an infringement of a woman’s rights under s 32. I find that an open or general request for women by the deceased’s mother’s tribesmen as part of "head pay" creates an obligation on all women of the deceased’s tribe to find a partner from that other tribe in their lifetime. This obligation is recognised and enforced upon all young girls of that tribe. So then her first choice of marriage partner must be a man from that tribe. The more immediately related the young girl is to the deceased and the more mature she is, the more pressure is mounted. This is a direct infringement of the woman’s rights under s 32.

I find that Miriam’s right to freedom of choice of a husband of her wish from anywhere in Papua New Guinea at a time of her wish was infringed by both the Tangilka and Konumbuka tribesmen.

Section 55 - Equality of Citizens:

Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, and place of origin, political opinion, creed, religion or sex
Subsection (1) does not prevent the making of laws for the special benefit, welfare, protection or advancement of females, children and young persons.

It is submitted that the same custom infringes s 55 in that it violates the equal choice that a woman in the Minj area, in this case Miriam, had of choosing a partner of her choice from anywhere in Papua New Guinea just like men from her Tangilka tribe and the Konumbuka tribe.

I accept this submission. There is no evidence that the same custom, which targets young women from the deceased’s tribe, also targets eligible men from the deceased’s mother’s tribe.

Having found that Miriam’s rights under Section 32 and 55 were violated, it is not necessary to decide if Miriam’s rights under:

(a) Section 36 - Freedom from Inhuman Treatment:

(b) Section 42 - Liberty of the Person

(d) Section 52 (i) - Right to Freedom of Movement

were violated by the said custom and customary practices associated with that custom.

I have already found that the custom is inconsistent with s 5 of the Marriage Act.

The custom is also contrary to s 3 (1) of the Customs Recognition Act (Ch. No. 19), which provides that a custom that is not in the public interest or would create injustice should not be recognised. I consider that the custom under consideration is not in the public interest to recognise and allow it to continue to be enforced. To do so would subject Miriam or any other women from the Minj area to uphold unnecessary life-time obligations, pressure and to live under threat and fear in their young and single life. It would also be unjust for them to live under these circumstances of compulsion and fear. Whereas men from Minj and other men and women in other parts of Papua New Guinea live, associate and marry freely.

It is submitted that, that custom is repugnant to the general principles of humanity. The meaning of the term "General Principles of Humanity" has never been judicially considered by the courts here although its ordinary meaning has never been doubted and courts have applied the term: For instance, in State v Aubafo Feama & Ors [1978] PNGLR 301, the custom of cannibalism was considered repugnant to the general principles of humanity; so was the custom of pay-back killing in Public Prosecutor v Apava Keru [1985] PNGLR 85; and the custom of mutilating adulterers in Acting Public Prosecutor v Aia Moroi [1985] PNGLR 78.

In my view, the custom of requesting women as part of "head pay" and giving of women as part of "head pay" in the Minj area, in particular, in Miriam’s case, is repugnant to the general principles of humanity. Living men or women should not be allowed to be dealt with as part of compensation payment under any circumstances.

After making findings of the said custom on the evidence, I have reminded myself of the need for special care in deciding whether that part of the custom of "head pay" as it is practiced from time to time and applied in Miriam’s case today is inconsistent with our national laws. I am particularly mindful of the following special factors:-

(a) That the majority of people in Papua New Guinea are uneducated and still live in villages. After a relatively short period of colonization and independence, they continue to live traditional lifestyles and are governed by traditional customs, all of which is unwritten.

(b) The traditional customs of the people of Minj like the rest of Papua New Guinea have existed from time immemorial. They serve complex value systems, which only they themselves best know. It is not easy for any outsiders to fully understand the customs, the underlying values and purposes they serve. Any outsider including the modern courts must not be quick to extract those customs and their values, and pass judgements on their soundness or otherwise.

(c) The traditional customs of the people vary among the numerous ethnic societies that exist in Papua New Guinea. To one ethnic society, the custom "head pay" which includes women may sound offensive to women, discriminatory of women, oppressive or inhuman whereas it may not be so to the ethnic group that practices it.

(d) All indigenous Papua New Guineans derive their existence from an ethnic society in Papua New Guinea. Whilst the majority of our people live in the villages, a good portion of them get education and go to live in towns and cities and get exposed to modern ways of living and different value systems. Every indigenous Papua New Guinean, however, educated or not, is still exposed to traditional values and customs. He/she allows himself to be governed by those traditional customs. Even then, it would not be proper for any educated indigenous Papua New Guineans to pass quick judgement on the soundness or otherwise of a traditional custom of his own people or any of the other ethnic society in Papua New Guinea.

(e) The courts of the National Judicial System including this court are pre-dominantly modern courts. As such, although provisions are made in the relevant statutes and Constitutional laws to allow for customary beliefs, rules and actions to play a part in the modern courts, law limits the role of customary law. Courts must be careful not to pass quick judgements on the legality and soundness of traditional customs and customary practices and their underlying values.

(f) In the context of all these diversities, however, when Papua New Guinea got independence, all Papua New Guineans, through the Constitution, pledged to unite as one nation and build a modern Papua New Guinea based on the National Goals and Directive Principles and Basic Social Obligations enshrined in the Constitution, respect for the Constitutional rights of others and respect for the rule of law. In Goal No. 5, we set one of our primary goals to be to "achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization." We called for:-

"(3) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and

(4) traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve their cultural, social, economic and ethical quality".

It seems ironic that traditional customs and customary practices of some ethnic societies should be struck down by the courts as being inconsistent with our national laws. They are inconsistent with a constitutional law or a statute or repugnant to general principles of humanity, when those very customs and customary practices have their own values in their respective ethnic societies.

(g) But it is clear to me that the framers of our Constitution and modern day legislators were thinking about a modern Papua New Guinea 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 customs must give way to the dictates of our modern national laws.

Having made the afore-mentioned observations and findings, it is necessary to make certain declarations and protective orders. These declarations and protective orders not only apply to the parties interested in these proceedings, but also to the wider Minj area. When making these declarations and orders, I note the wide powers given to me by Constitution, by s 57 (3) and (5), which provide:-

"(3) A Court that has jurisdiction under Sub-section (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force)

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the Court thinks proper to do so, be given in cases in which there is reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement."

I declare: -

The custom of the people of Minj, including the members of the Tangilka and Konumbuka tribe, of requesting for young women as part of "head pay" by the deceased’s mother’s tribe and acceptance of the request by the deceased’s tribe and enforcement of the same by both tribes, unlawful and unconstitutional, as being contrary to s 5 of the Marriage Act s 3 (1) of the Customs Recognition Act Schedule 2.1 of the Constitution. This is also a violation of constitutional rights of Minj women, in particular Miriam Willingal, as guaranteed by ss 32 and 55 of the Constitution.

I order that: -

(3) Any person found to be in breach of these orders may be reported to this court to be further dealt with.

No order as to costs.

Lawyer for the plaintiff: Powes Parkop.

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