PNG Law Reports 1994
[1994] PNGLR 486
N1262
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF KEPO RARAMU AND IN THE MATTER OF YOWE VILLAGE COURT
Mount Hagen
Doherty J
22 November 1993
CONSTITUTIONAL LAW - Application of custom by Village Court - Custom oppressive - contrary to equality provisions in Constitution and not in keeping with the inherent dignity of mankind.
CONSTITUTIONAL LAW - Custom and the underlying law.
Facts
These are adequately set out in the judgment.
Held
1.       A custom which is discriminatory and, therefore, contravenes the Constitution is not part of the underlying law and, therefore, not enforceable.
2.       A Village Court cannot convict for offences not provided for in the Village Court Regulations.
22 November 1993
DOHERTY J: Kepo Raramu has been sentenced by the Village Court to a term of six months imprisonment because, as a widow, she has gone around with another man.
I am well aware of the custom in many areas that says women whose husbands have died are not to go around with another man. I have come across such a custom in Ninigo Islands in the Manus Province and Tigidu in Morobe Province. I do not know of any equivalent custom that says a man whose wife died is not allowed to go around with other women, and, as such, I consider this custom strikes against the basis of equality provided in s 55 of the Constitution.
It appears to me, to quote the words of the former Chief Justice Sir Buri Kidu, “It is a custom that is oppressive to women”, and the Village Court is in error in upholding this custom. Since it is oppressive, I consider it fails to recognise the inherit dignity of mankind. This Court is not prepared to recognise it under the Customs Recognition Act, and enforce it as part of the underlying law.
I consider that the Village Court is wrong for imprisoning people for breach of that custom. Should people wish to obey the custom, well and good; let them do so, but it is not one which should be subject to criminal sanction.
Further, I consider that this is not a scheduled offence provided for in the Village Court Regulations and, therefore, is not within the jurisdiction of the Village Court to try and convict.
I consider it oppressive and not in keeping with the dignity of mankind. I do not recognise or enforce it as a custom. Accordingly, I order that the prisoner, Kepo Raramu, be released forthwith, together with her 4-months-old child.