Re Kaka Ruk [1991] PGNC 76; [1991] PNGLR 105; N963 (18 March 1991)

N963

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

RE KAKA RUK

AND SECTION 42(5) OF THE CONSTITUTION

Mount Hagen
Woods J

14 March 1991
18 March 1991

INFERIOR COURTS - Village courts - Jurisdiction - Power to order imprisonment - Subject to Constitution - Adultery complaint - Marital problems more appropriate to compromise and discussion - Principles of natural justice to be observed - Rights to equality and participation - In marriage - Wife’s imprisonment unlawful - Constitution, s 42(5); Preamble, cl 2(12).

CONSTITUTIONAL LAW - Constitution - National Goals and Directive Principles - Equality and participation - In respect of marriage relationship - Whether settlement of marital disputes by village courts contrary to natural justice - Constitution, s 42(5); Preamble, cl 2(12).

Held

(1) Whilst the powers of the village courts are to be exercised having regard to custom they must also be exercised in accordance with the principles of natural justice.

SCR No 2 of 1989; Re Village Courts Act [1988-89] PNGLR 491, followed.

(2) The principles of natural justice should be measured against the relevant National Goals and Directive Principles to determine whether they are in the particular case "repugnant to the general principles of humanity".

(3) Where a family marital problem had been enforced by imprisonment of the wife by the husband, cl 2(12) of the National Goals and Directives Principles seeking recognition of equality and participation in the relationship of marriage had been denied, and the imprisonment was harsh and oppressive and repugnant to the general principles of humanity.

Cases Cited

SCR No 2 of 1989; Re Village Courts Act [1988-89] PNGLR 491.

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 it or him;

and

(b) unless the court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit."

Cur adv vult

18 March 1991

WOODS J: This is a complaint that Kaka Ruk is unlawfully or unreasonably detained by virtue of an order of the Village Court at Kei Village in the Western Highlands. Kaka Ruk was taken to the Village Court on the complaint of her husband that she had committed adultery apparently with the complainant’s younger brother.

She was ordered to pay compensation to her husband a man who still says she is his wife and will be when she comes out of gaol. However she could not pay the compensation and of course that is often to be expected. Where can she get the money as she is not the breadwinner of the family, the husband is. The husband is supposed to support her and by his statements must still be bound to support her.

There are various versions of the events that led to this incident. Kaka complains that while she had been married to Steven for a number of years he had gone off to work on a plantation and had not looked after her properly for some years. Just leaving her with his relatives. Further they had never had any children. Because of his recent neglect of her she had become worried and had not wanted to create complications because of the bride price situation hanging over her head. She had become friends with her husband’s younger brother by whom she says she has now become pregnant and wants to marry. The husband rejects the story that he has neglected her although he does admit that he had been working elsewhere for a couple of years but he says that he had been returning regularly to their home. It seems therefore that the husband is insisting that custom be applied and she be punished by going to gaol for a marital offence against him, an offence which his behaviour may have led to. He is in a position of control over the situation by being the breadwinner and husband.

The courts must respect the customs of Papua New Guinea as part of the underlying law. But this principle must be guided by the overriding requirements and principles as stated in the Constitution. The village courts have been given the power to solve many of the problems in the village by applying custom. However the Constitution clearly states that whilst the village courts have the power to apply custom and even use gaol as a sanction the powers of the village court must be exercised in accordance with the principles of natural justice. This has been affirmed by the Supreme Court in SCR No 2 of 1989; Re Village Courts Act [1988-89] PNGLR 491. However what do we mean by the principles of natural justice.

The Constitution states in Sch 2.1 that whilst custom must be followed it is not to be applied and followed if it is a custom that is repugnant to the general principles of humanity. Then in the Constitution, Sch 2.3 the courts are given guidance for customs that should be applied as part of the underlying law. Those customs that are relevant are those that are consistent with the National Goals and Directive Principles and the Basic Social Obligations. So I must measure a custom against the goals and circumstances of Papua New Guinea and an obvious yard stick is the words in Sch 2.1 "repugnant to the general principles of humanity".

This custom that the husband is seeking to apply which leads to her jailing when he is in the dominating position and where the situation has been partly caused by his behaviour must be a custom that denigrates women and is thus repugnant to the general principles of humanity and should be denied a place in the underlying law. I am not saying that adultery is not wrong, I am saying that in the circumstances of this case, it is a family marital problem which should be solved by mediation within the village and the family. A basic social obligation in Papua New Guinea is to respect and to act in the spirit of the Constitution and to assist in the exercise of the rights conferred by the Constitution and to respect the rights and freedom of others and to respect the use of Papua New Guinean forms of consultation and consensus and this must include solving problems by discussion and compromise.

Gaols in Papua New Guinea are for criminals. They are not designed as sanctions in what are purely personal family problems. To apply criminal sanctions to solve family problems must be clearly denying the National Goals and Directive Principles especially:

"2. EQUALITY AND PARTICIPATION

(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."

Of course there are the rare extreme situations where people who flagrantly avoid even their civil obligations and finally the law can be imprisoned but that is an extreme situation and the best example of course is the husband who refuses to pay maintenance but that is usually after very long court procedures and it is only the extreme sanction. The situation before me now is not one of these extreme sanction situations. It is a very precipitate application of criminal sanctions in a situation which should be mediated properly in the village and family because it appears that there may be fault on both sides. In this situation before me now the wife is caught between bride price problems and an unhappy marriage which has produced no children. She almost has no way out. She is practically bound in servitude where the husband always has the upper hand. He can withdraw his support and yet she is still bonded and if she attempts to escape from the bondage the threat of gaol is there.

People in Papua New Guinea must come to terms with the law that women are not chattels that can be bought and thus bonded forever. They are equal participants in the marriage and in society: see National Goals and Directive Principles, 2(12) referred to above.

I am satisfied here that the woman has been unjustly and harshly treated and no court which is governed by the principles of justice, equity and good conscience can order her imprisonment. The courts or the people must seek a solution by compromise and discussion. I therefore order Kaka Ruk’s immediate discharge from custody.

Declared that imprisonment unlawful

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