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

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

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

1 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 s57

2 Constitution—Constitutional rights—Application for enforcement of—Whether custom of requesting or demanding unmarried young woman as part of customary compensation payment called "head pay" as practised in the Minj District of the Western Highlands Province infringed the Constitution s32 (right to freedom), s36 (freedom from inhuman treatment), s42 (liberty of the person), s49 (right to privacy), s52 (right to freedom of movement) and s55 (equality of citizens)

3 Underlying law—Customary law—Whether custom of requesting or demanding unmarried young woman as part of "head pay" compensation as practised in the Minj District of the Western Highlands Province is inconsistent with "constitutional law or a statute or contrary to the general principles of humanity"—Constitution Sch2.1, Sch2.2, Marriage Act (Ch280) s5 and Customs Recognition Act (Ch19) s2, s3(1)

4 Associations Incorporation Act (Ch142) and Criminal Law (Compensation) Act 1991, National Goals and Directive Principles No 2(5), 5 and 12 referred to

5 The State v Aubafo Feama [1978] PNGLR 301, Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510, Aundak Kupil v The Independent State of Papua New Guinea [1983] PNGLR 350, Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78, The State v Angaun Kakas, Kakalia Tulu, Sukulin Passomb and Kalain Kula [1994] PNGLR 20 and The State v Billy Kauwa [1994] PNGLR 503, and Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299 referred to

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Injia J: This is an application by Individual and Community Rights Advocacy Forum (ICRAF) under s57 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 (Ch142). 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 enschined in the internal laws of Papua New Guinea, particularly the Constitution.

S57(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. S57(1) 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,

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. (emphasis mine)

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 s57.

2. History of Proceedings

ICRAF's involvement in this matter was prompted by a Post Courier Newspaper headline article published on 3 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 21 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 21 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 28 May 1996.

2. Affidavit of Sam Imene sworn 28 May 1996.

3. Affidavit of Toni Boma sworn 6 June 1996.

4. Affidavit of Dr John Muke sworn 6 June 1996.

5. Affidavit of Susan Balen sworn 10 May 1996.

3. 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 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 tribesmen against her will.

"(b) On the 9 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."

and 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 s32(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...