Application by Individual and Community Rights Advocacy Forum Inc (ICRAF); In re Miriam Willingal [1997] PNGLR 119

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 10 February 1997
• Citation: [1997] PNGLR 119
• Docket Number: In the Matter of an Application under s57 of the Constitution
• Court: National Court
• Year: 1997
• Judgement Number: N1506

Full Title: In the Matter of an Application under s57 of the Constitution; Application by Individual and Community Rights Advocacy Forum Inc (ICRAF); In re Miriam Willingal [1997] PNGLR 119

National Court: Injia J

Judgment Delivered: 10 February 1997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO 289 OF 1996

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

HUMAN RIGHTS — Constitutional Rights — Application for Enforcement of — Locus Standi of incorporated community interest group such as ICRAF to make application on behalf of victim — Constitution, S. 57.

CONSTITUTION — Constitutional Rights — Application for Enforcement of — hether custom of requesting for or demanding unmarried young women as part of customary compensation payment called "head pay" practiced in the Minj District, Western Highlands Province infringed Constitution, S. (32), (Rights to Freedom), S. 36 (Freedom from Inhuman treatment), S. 42 (Liberty of the person), S. 49 (Rights to privacy), S. 52 (Right to freedom of movement), S. 55 (Equality of citizen).

UNDERLYING LAW — Customary Law — whether custom of requesting for or demanding unmarried young women as part of "head pay" compensation practiced in the Minj District, Western Highlands Province, is inconsistent with a Constitutional Law or a statute or contrary to general principles of humanity — Constitution, Sch. 2.2, Marriage Act (Ch. No. 280), S. 5, and Customs Recognition Act (Ch. No. 19), S. 3 (1).

Held

1. By virtue of the charter or Constitution of ICRAF, it has locus standi under S. 57 to bring the proceedings for enforcement of Miss Miriam Willingal's Constitutional Rights.

2. The custom of "head pay" which involves request or demand for unmarried young women practiced in the Minj area of the Western Highlands Province and as applied in the case of Miss Miriam Willingal is unconstitutional as being in breach of her constitutional rights as guaranteed by S. 32 and S. 55.

3. The said custom is inconsistent with S. 3 (1) of the Customs Recognition Act (Ch No 19).

4. The said custom is 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 it 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

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

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

Audak Kupil & Kauke Kensi v The State [1980] PNGLR 350

Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299

Acting Public Prosecutor v Aia Moroi [1985] PNGLR 78

Public Prosecutor v Apava Keru [1985] PNGLR 85

The State v Angaun Kakas & 3 Ors (1994) PNGLR 20

The State v Billy Kauwa [1994] PNGLR 503

Legislation Referred To

Constitution

Customs Recognition Act (Ch No 19)

Marriage Act (Ch No 280)

Associations Incorporation Act (Ch No 142)

Criminal Law Compensation Act 1992

Counsel

S Balen for the applicant

Miriam Willingal in person

10 February 1997

INJIA J: This is an application by 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.

1. LOCUS STANDI OF ICRAF

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

Section 57 (I) 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 (I) and (2) provides:

"S57 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 it's own initiative or on application by any person who has as interest in it's 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, havean 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 underlining).

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

2. HISTORY OF PROCEEDINGS

ICRAF's involvement in this matter was prompted by a Post Courier Newspaper headline article published on 03rd May, 1996 entitled "Girl Sold in Death Compensation." 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 and that 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:

1. Affidavit of Miriam Willingal sworn 28th May, 1996.

2. Affidavit of Sam Imene sworn 28th May, 1996.

3. Affidavit of Toni Boma sworn 06th June, 1996.

4. Affidavit of Dr John Muke sworn 06th June, 1996.

5. Affidavit of Susan Balen sworn 10th May, 1996.

6. The Relief sought by ICRAF on behalf of Miriam Willingal.

The orders the applicant (ICRAF) seeks and the alleged facts and grounds upon which the applicant seeks 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 3rd 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...