Application of Wagi Non [1991] PNGLR 84

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 27 February 1991
• Citation: [1991] PNGLR 84
• Docket Number: Re Wagi Non and s42(5) of the Constitution
• Court: National Court
• Year: 1991
• Judgement Number: N959

Full Title: Re Wagi Non and s42(5) of the Constitution; Application of Wagi Non [1991] PNGLR 84

National Court: Woods J

Judgment Delivered: 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...